International Association of Law Schools Conference on Constitutional Law
September 11-12, 2009
Hosted by American University Washington College of Law and Georgetown University Law Center
Washington DC, United States of America
American University Washington College of Law and Georgetown University Law Center Funded Conference On-Site Expenses
Association of American Law Schools Funded Developing Country Participation and Staff Support to IALS
IALS Conference on Constitutional Law
2 IALS Conference on Constitutional Law
Welcome
It is a great pleasure to welcome you, in my capacity as Chair of the Planning Committee, to this challenging and stimulating IALS conference on “Constitutional Law” – a conference that will bring together scholars from every region of the world to explore some of the most important challenges that confront the rapidly increasing number of legal academics who teach and conduct research in comparative constitutional law. This conference promises to be particularly rewarding as it combines pedagogical, methodological and substantive discussions of some of the most pressing and most salient subjects that currently confront constitutional law across different nations and different legal systems. With subjects such as the constitutional treatment of religion, of gender differences, distributive justice, democracy and emergencies, this conference will certainly afford a particularly rich forum for further exploration of what is central to the IALS mission: shedding light on the most important axes of convergence and divergence among different legal systems, legal cultures and legal traditions.
The four previous IALS conferences (Suzhou 2007, Hamburg 2008, Montreal 2008, and Canberra 2009) have been immensely valuable in sensitizing us to differences, opening our minds, and enabling us to learn from each other. That process will undoubtedly continue and expand in new directions.
The program has been put together by a wonderfully diverse planning committee, whom I want to acknowledge: Henk Botha, University of Stellenbosch, South Africa; Marilisa D’Amico, University of Milan, Italy; Joaquim Falcão, FGV Law School Rio, Brazil; Helen Irving, University of Sydney, Australia; Faridah Jalil, National University of Malaysia, Malaysia; John McEldowney, University of Warwick, United Kingdom; and myself as Chair from the Benjamin N. Cardozo School of Law, New York with Norman Dorsen of New York University as IALS Board Liaison to the Committee. I also acknowledge the valuable input from a very engaged IALS Governing Board, and the indispensible assistance from our very committed administrators in Washington.
It is a wonderful treat to be able to hold a constitutional law conference in Washington, D.C., and we are very fortunate that two outstanding law schools, the American University Washington College of Law and the Georgetown University Law Center have graciously agreed to host us. Very special thanks are due to Dean Claudio Grossman of American University Washington College of Law and Dean T. Alexander Aleinikoff of Georgetown University Law Center.
Michel Rosenfeld, Chair, Planning Committee for the IALS Conference on Constitutional Law Justice Sydney L. Robins Professor of Human Rights Benjamin N. Cardozo School of Law Yeshiva University New York, NY, United States
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4 IALS Conference on Constitutional Law
Table of Contents
Page
WELCOME ...... 3
PROGRAM...... 13
IALS GOVERNING BOARD ...... 19
PLANNING COMMITTEE ...... 21
CONFERENCE PARTICIPANTS ...... 23
IALS MEMBERS ...... 29
PAPERS ...... 37
Papers Papers by Subject Matter; alphabetical by last name
COMPARATIVE CONSTITUTIONAL LAW ...... 37 The Bahraini Constitutional Government System “An Overview” Mohammed Al Mashhadani, Bahrain ...... 39 The Controller Types of Constitutional Law in Jordan Osama al Neimat, Jordan ...... 43 A Modest Experiment in Pedagogy: Lessons on Comparative Constitutional Law Thomas E. Baker, United States ...... 45 Foreign Constitutional Law and the Courts: Reflections from the South Henk Botha, South Africa...... 51 The Constitutional Rights to Dignity Erin Daly, United States ...... 57 Reproductive Rights in the Legal Academy: A New Role for Transnational Law Martha F. Davis & Bethany Withers, United States ...... 63 Introduction of Judicial Review in Italy – Transition from Decentralized to Centralized Review (1948-1956) – A Successful Transplant Case Study Louis F. Del Duca, United States ...... 69 Territorial Decentralization and a New Type of Multiparty System: A Comparative Analysis of Consequences and Solutions Federico de Montalvo Jääskeläinen, Spain ...... 75
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Teaching Comparative Constitutional Law: Methodological Challenges Mariolina Eliantonio & Philipp Kiiver, The Netherlands ...... 81 Intermittent Comparative Constitutional Law Patrick O. Gudridge, United States ...... 85 The Renaissance of Comparative Constitutionalism A. E. Dick Howard, United States...... 93 Use of International Sources in United States Constitutional Interpretation R. Randall Kelso, United States ...... 97 Teaching Comparative Perspectives in the Domestic Constitutional Law Class: A Step by Step Primer Mark S. Kende, United States ...... 101 The Veil as a Subject for Comparative Legal Analysis Mehmet K. Konar-Steenberg, United States ...... 107 The Polysemy of Privacy: Comparative Constitutional Law and the Problem of Culturally- Contingent Meeting R. J. Krotoszynski, Jr., United States ...... 111 Electoral Reform Henk Kummeling, The Netherlands ...... 115 The Use of International and Comparative Sources in a Domestic Constitutional Law Course Brian K. Landsberg, United States ...... 123 Freedom of Speech and Contempt by Scandalizing the Court in Singapore Jack Tsen-Ta Lee, Singapore ...... 127 Kelsen, Constitutions, Coup d’Etats and Courts Tayyab Mahmud, United States ...... 135 Hybridization: A Study in Comparative Constitutional Law John McEldowney, United Kingdom ...... 143 The Roles of International Human Rights Norms in Comparative Constitutional Jurisprudence: CEDAW-Based Examples Martha I. Morgan, United States ...... 149 The Constitutional Conundrum of Locus Standi: Comparative Analysis of the Rules Standing in Public Interest Environmental Litigation in the USA and South Africa Tumai Murombo, South Africa ...... 155 Implementing The European Convention on Human Rights: A Comparative Constitutional Perspective With References to Ireland and France Marie-Luce Paris-Dobozy, Ireland ...... 163 Comparative Indigenous Rights and Serendipity Paul Rishworth, New Zealand ...... 169 Principle or Ideology? A Comparative Perspective on the U.S. Controversy over Supreme Court Citations to Foreign Authorities Michel Rosenfeld, United States ...... 173
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Codes and Constitution in Argentina: A Difficult Marriage Roberto Saba, Argentina ...... 547 Comparative Law as a Source of U.S. Constitutional Definition Kevin W. Saunders, United States ...... 177 Building Blocks for a Constitution Herman Schwartz, United States ...... 183 Comparative Constitutional Law: A Window into the Fundamental Requirements of a Just Legal Order Mortimer Sellers, United States ...... 189
RELIGION, STATE & CONSTITUTION ...... 193 The Multi-Dimensional Nature of Religion Alan E. Brownstein, United States ...... 195 Limitation of Religious Freedom to Conform to the Standards of an Open and Democratic Society Hlako Jacob Choma, United States ...... 199 Religious Freedom and Groups John H. Garvey, United States ...... 205 Germany: Religion, State and Constitution Helmut Grothe, Germany ...... 211 Freedom of Speech and Freedom of Religion: Three Types of Relationships Guy Haarscher, Belgium ...... 215 Religion and Constitution of Georgia Ketevan Kalandadze, Georgia ...... 219 The Veil as a Subject for Comparative Legal Analysis Mehmet K. Konar-Steenberg, United States ...... 107 Between Crucifixes and Veils: Secularism and Religion as Guarantors of Cultural Convergence Susanna Mancini, Italy ...... 225 Religious Conversion, Re-Conversion & Indian Constitution Faizan Mustafa, India ...... 229 The Republic Tradition and The “Hijab” Controversy Ricardo Leite Pinto, Portugal ...... 233 Legislative Prayers and Judicial Sins: How Not to Think About Constitutional Foundings Jamin Ben Raskin, United States ...... 237 Marketing Creation: The Law and Human Origins Franks S. Ravitch, United States ...... 243 Constitutionalism and Islamic Legal Theory: Preliminary Questions Shannon Roesler, United States ...... 247 Secularism and Indian Constitution: Is the Secular Character of Indian Democracy Under Threat Vivek Salathia, India ...... 253
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Religion and the State Michel Troper, France ...... 255 The Turkish Constitutional Court and The Use of Religious Symbols in Higher Education Establishments: The Case of 5 June 2008 Mehmet Cengiz Uzun, Istanbul ...... 261 Evolutionary Due Process Louis J. Virelli III, United States ...... 269
GENDER & CONSTITUTION ...... 273 Reproductive Health and Abortion: Convergence and Divergence Paula L. Abrams, United States ...... 275 Is Constitutionalism Bad for Intersectional Feminists? Beverley Baines, Canada ...... 281 The Legal Framework for the Exercise of Fundamental Rights with a Gender Perspective in Costa Rica Rafael González Ballar, Costa Rica ...... 285 Constitutional Challenges and Argentine Abortion Law Paola Bergallo, Argentina ...... 293 Violence against Women, Gender Equality and the Brazilian Constitution Márcia Nina Bernardes, Brazil ...... 301 When Constitutional Citizenship Diminishes the Political Power of Women-A Case Study of Yap Kathleen M. Burch, United States ...... 307 Gender and Constitutional Citizenship Helen Irving, Australia ...... 313 Judicial Promotion of Gender Equality in Chieftaincy Succession Disputes: An Appraisal of the Shilubana Decision Obeng Mireku, South Africa ...... 319 Gender and Constitutional Design: Democracy and the Challenge of Multiculturalism Susan H. Williams, United States ...... 325 Women and the Equality Guarantee of the Canadian Charter of Rights and Freedoms: A Recap and Critique Margot Young, Canada ...... 333
CONSTITUTIONAL ADJUDICATION AND DEMOCRACY ...... 341 The Role of the Courts in Strengthening Democracy at the Local Government Level in Nigeria Joash Amupitan, Nigeria...... 343 Constitutional Adjudication and Democracy: One Voice or Many? Michael Coper, Australia ...... 347
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The Principle of the Supremacy of the Constitution in the Construction of Political Pluralism in México: the Controversia Constitucional and the Acción de Inconstitucionalidad Iván De la Garza Santos, Mexico ...... 353 The Constitutional Court of Indonesia: Its Authorities and Contributions on the Development of Democracy in Indonesia A. Latief Fariqun, Indonesia ...... 357 Constitutional Adjudication and Democracy – Judicial Review of Constitutional Change: Defending Constitutions with Constitutionalism Dante B. Gatmaytan, Philippines ...... 361 Towards Reestablishing Democratic Participation in Constitutional Interpretation F. Andrew Hessick, United States ...... 369 Role of Monarchy and Traditional Rulers in Malaysia Faridah Jalil, Malaysia ...... 373 Reconciling Liberty and Progressive Government Michael Anthony Lawrence, United States ...... 377 Freedom of Speech and Contempt by Scandalizing the Court in Singapore Jack Tsen-Ta Lee, Singapore ...... 127 Nurturing Constitutionalism through the Courts: Constitutional Adjunction and Democracy in Nigeria Tahir Mamman & P. Chibueze Okorie, Nigeria ...... 385 The Vitality of the American Sovereign Todd E. Pettys, United States...... 393 Poverty and Constitutional Rights Mónica Pinto, Argentina ...... 399 Democracy, Popular Sovereignty, and the Courts – Sovereign Immunity, Federalism, and Enforcement of Individual Rights William J. Rich, United States ...... 405 The Constitutional Role of Transnational Courts: Principled Legal Ideas in Three-Dimensional Political Space Kim Lane Scheppele, United States ...... 409 Constitutional Adjunction and Democracy: Constitutional Rights of “Aliens” Jessica E. Slavin, United States...... 417 Some Reflections on The Dissolution of Political Parties in Thailand Narongdech Srukhosit, Thailand ...... 419 Cross-judging: Tribunalization in a Fragmented but Interconnected Global Order Ruti Teitel & Robert Howse, United States ...... 427 Constitutional Adjudication and Democracy John Williams, Australia ...... 431
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DISTRIBUTIVE JUSTICE ...... 437 The Oldest Property: Why Statutory Caps on Damages for the Benefit of Government or of Third Parties Deserve Rigorous Analysis under the “Takings” Clause José Julián Álvarez-González, Puerto Rico ...... 439 The Sugar Belt: Redefining “Extractive” Industry in the Era of Biofuel Development Barbara L. Bernier, United States ...... 443 Socioeconomic Discrimination in the Enforcement of Constitutional Rights: The Case of Domestic Privacy under the United States Constitution Jordan C. Budd, United States ...... 447 Due Regard for Constitutional Values: The South Africa Constitutional Court and Substantive Justice Eric C. Christiansen, United States ...... 451 Justiciability of Economic and Social Rights in Chile Rodolfo Figueroa, Chile ...... 455 Distributive Justice-Poverty V.S. Elizabeth, India ...... 461 Ecological Globalization v. Environmental Needs of Future Generations: Need for Constitutionalization of the Doctrine of Inter-Generational Equity & Other Fundamental Principles of International Environmental Law Sanjeevy Shanthakumar, India ...... 465
CONTEMPORARY CHALLENGES TO EXECUTIVE POWER ...... 469 Contemporary Challenges to Executive Power-Relationship between Executive and Other Branches of Government Chris Gale, United Kingdom ...... 471 The Executive and the Courts Richard Clayton, United Kingdom ...... 475 Signing Statements and the Independent Power of the Executive to Interpret Constitutional Law Julian Ku, United States ...... 477 Contemporary Challenges and the Strengthening of Executive Power: An Australian Case Study Andrew Lynch, Australia ...... 481 Judicial Activism Reins in Executive Power: The Philippine Experience Gloria Estenzo Ramos, Philippines ...... 487 Is Judicial Activism a Challenge to the Executive Power: The Indian Experience R. Venkata Rao, India ...... 493 Managing Conflicts Between Congressional and Inherent Presidential Powers: The “Coordinacy” Thesis Mark D. Rosen, United States ...... 495 Contemporary Challenges to Executive Power: The Constitutional Scheme and Practice in India V. Vijayakumar, India ...... 503
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MISCELLANEOUS ...... 509 Reforming the Spanish Senate: The Proposals in The Council of State Report of 2006 Leopoldo Calvo-Sotelo, Spain ...... 511 The Status of Former Presidents in African Political Regimes Ismaila Midor Fall, Senegal ...... 515 Allocating State Authority in View of Constitutional Changes in Georgia Ketevan Khurodze, Georgia ...... 519 Latin American Tendency Towards Presidential Re-election has Taken its Toll on Colombia Ernesto Lucena, Colombia ...... 525 Guarding Constitution of Indonesia through the Court Wasis Susetio, Indonesia ...... 529 Between Scylla and Charybdis and Slippery Slopes Vicki Waye, South Australia ...... 537
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12 IALS Conference on Constitutional Law
INTERNATIONAL ASSOCIATION OF LAW SCHOOLS
IALS Conference on Constitutional Law
Friday 11 September 2009 – Saturday 12 September 2009
Hosted by American University Washington College of Law and Georgetown University Law Center
Washington DC, United States of America
FRIDAY 11 SEPTEMBER 2009 at American University Washington College of Law Buses will depart from the 24th Street Exit of the Marriott Wardman Park Hotel at 7:45.
9:00-9:15 Room 603 Welcome from Host 6th Floor Claudio Grossman, Dean, American University Washington College of Law
Welcome from IALS Room 603 Mónica Pinto, IALS President, University of Buenos Aires Faculty of Law 6th Floor and Social Sciences, Argentina
Introduction Room 603 Michel Rosenfeld, Yeshiva University, Benjamin N. Cardozo School of Law 6th Floor United States, Chair, Planning Committee for IALS Conference on Constitutional Law
9:15-10:30 Room 603 Plenary: Comparative Constitutional Law 6th Floor
Methodological Challenges in Comparative Constitutional Law Vicki C. Jackson, Georgetown University Law Center, United States
Hybridization John McEldowney, University of Warwick School of Law, United Kingdom
Borrowing in Constitutional Making and Adjudication Michel Rosenfeld, Yeshiva University, Benjamin N. Cardozo School of Law, United States
Moderator: Faridah Jalil, National University Malaysia Faculty of Law, Malaysia
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10:30-10:45 Room 603 Foyer Refreshment Break 6th Floor
1045 – 12:15 Small Groups See the handout in your materials folder for your small group assignment and its meeting room location.
12:15-13:45 Dining Room IALS Luncheon Sponsored by American University 6th Floor Washington College of Law
Introduction: Dean Claudio Grossman, American University Washington College of Law, United States
Speaker: Walter Dellinger, Duke University School of Law, United States
Commentator: Herman Schwartz, American University Washington College of Law, United States
14:00-15:30 Room 603 Plenary: Religion, State and Constitution 6th Floor
Symbols and Representation Susanna Mancini, University of Bologna, Italy
Conflict Between Freedom of Religion and Freedom of Expression Guy Haarscher, Free University of Brussels, Belgium
Relationship Between State and Religion Michel Troper, University of Paris X, France
Legislative Prayers and Judicial Sins Jamin Ben Raskin, American University Washington College of Law, United States
Moderator: Paola Bergallo, University of Buenos Aires and San Andrés University, Argentina
15:30-15:45 Room 603 Foyer Refreshment Break 6th Floor
14 IALS Conference on Constitutional Law 15:45-17:15 Concurrent Sessions:
Gender and Constitution Room 603 6th Floor Reproductive Rights Paola Bergallo, University of Buenos Aires and San Andrés University, Argentina
Gender and Constitutional Citizenship Helen Irving, The University of Sydney Sydney Law School, Australia
Mutliculturalism and Constitution Beverley Baines, Queen's University, Canada
Moderator: Henk Botha, University of Stellenbosch, South Africa
Constitutional Adjudication and Democracy Room 602 6th Floor Constitutional Role of Transnational Courts Kim Lane Scheppele, Princeton University, United States
Democracy, Popular Sovereignty, and the Courts Wessel le Roux, University of South Africa, South Africa
Moderator: John McEldowney, University of Warwick School of Law, United Kingdom
17:30 Buses will depart from American University Washington College of Law
18:45 (Buses Depart) Dining Room IALS Reception/Dinner Sponsored by American University 6th Floor Washington College of Law Buses will depart from the 24th Street Exit of the Marriott Wardman Park Hotel at 18:45. Buses will return to the Marriott Wardman Park Hotel at conclusion of dinner.
15 IALS Conference on Constitutional Law SATURDAY 12 SEPTEMBER 2009 at Georgetown University Law Center Buses will depart from the 24th Street Exit of the Marriott Wardman Park Hotel at 7:45.
9:00-10:30 Hart Auditorium Welcome from Host McDonough Hall – 1st Floor T. Alexander Aleinikoff, Dean, Georgetown University Law Center
Plenary: Distributive Justice Hart Auditorium McDonough Hall – 1st Floor Poverty V.S. Elizabeth, National Law School of India University, India
Adjudicating Socio-economic Rights under a Transformative Constitution Linda Stewart, North-West University, South Africa
Moderator: Norman Dorsen, New York University School of Law, United States
10:30-10:45 Hart Auditorium Lobby Refreshment Break McDonough Hall – 1st Floor
10:45-12:00 Small Groups See the handout in your materials folder for your small group assignment and its meeting room location.
12:00-13:45 Gewirz Student Center IALS Luncheon Sponsored by Georgetown University Law Center 12th Floor
Introduction: T. Alexander Aleinikoff, Dean, Georgetown University Law Center, United States
Speaker: Mark Tushnet, Harvard Law School, United States
14:00-15:15 Hart Auditorium Plenary: Contemporary Challenges to Executive Power McDonough Hall – 1st Floor
Emergency Powers Carlos Rosenkrantz, San Andrés University, Argentina
Relationship Between Executive and Other Branches of Government Richard Clayton, Cambridge University, United Kingdom
Moderator: Michel Rosenfeld, Yeshiva University, Benjamin N. Cardozo School of Law, United States
15:15 -15:30 Hart Auditorium Lobby Refreshment Break McDonough Hall – 1st Floor
16 IALS Conference on Constitutional Law 15:30-17:15 Hart Auditorium Plenary: Teaching McDonough Hall – 1st Floor
Henk Botha, University of Stellenbosch, South Africa Faridah Jalil, National University Malaysia Faculty of Law, Malaysia Susan H. Williams, Indiana University Maurer School of Law, United States
Moderator: Helen Irving, The University of Sydney Sydney Law School, Australia
17:30 Buses will depart from Georgetown University Law Center
18:45 (Buses Depart) Hotung Lobby Reception/Dinner Sponsored by Georgetown University Law Center 2nd Floor Buses will depart from the 24th Street Exit of the Marriott Wardman Park Hotel at 18:45. Buses will return to the Marriott Wardman Park Hotel at conclusion of dinner.
Conference Wrap Up Moderator: Michel Rosenfeld, Yeshiva University, Benjamin N. Cardozo School of Law, United States
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18 IALS Conference on Constitutional Law
International Association of Law Schools
Governing Board
Mónica Pinto, University of Buenos Aires Faculty of Law, Argentina IALS President
Francis SL Wang, Kenneth Wang School of Law, Soochow University, China IALS President-Elect
Carl C. Monk, International Association of Law Schools, United States IALS General Secretary/Treasurer
Mariam Hassan al-Khalifa, University of Bahrain College of Law, Bahrain
Noor Aziah Haji Mohd Awal, National University of Malaysia Faculty of Law, Malaysia
Reem Bahdi, University of Windsor Faculty of Law, Canada
Markus Baumanns, Bucerius Law School, Germany
Nerina Boschiero, University of Milan Faculty of Law, Italy
Roger Burridge, University of Warwick School of Law, United Kingdom
Fatou Kiné Camara, University Cheikh Anta Diop of Dakar Faculty of Legal & Political Science, Senegal
Lidia Casas, Diego Portales University Faculty of Law, Chile
Michael Coper, Australian National University Faculty of Law, Australia
Dakas CJ Dakas, University of Jos Faculty of Law, Nigeria
Claudio Grossman, American University Washington College of Law, United States
Aalt Willem Heringa, Maastricht University Faculty of law, The Netherlands
Chuma C. Himonga, University of Cape Town Faculty of Law, South Africa
Cheng Han Tan, National University of Singapore Faculty of Law, Singapore
Fernando Villarreal-Gonda, Free Faculty of Law of Monterrey, Mexico
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20 IALS Conference on Constitutional Law
IALS Conference on Constitutional Law Planning Committee Members
Henk Botha, University of Stellenbosch Faculty of Law, South Africa
Marilisa D’Amico, University of Milan Faculty of Law, Italy
Norman Dorsen, New York University School of Law, United States, IALS Board Liaison
Joaquim Falcão, FGV Law School Rio, Brazil
Helen Irving, The University of Sydney Sydney Law School, Australia
Faridah Jalil, National University of Malaysia Faculty of Law, Malaysia
John McEldowney, University of Warwick School of Law, United Kingdom
Michel Rosenfeld, Yeshiva University, Benjamin N. Cardozo School of Law, United States, Chair
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22 IALS Conference on Constitutional Law
International Association of Law Schools Conference on Constitutional Law
American University Washington College of Law and Georgetown University Law Center Washington, DC United States September 11-12, 2009
Conference Participants
Paula L. Abrams Lewis and Clark Law School, United States, [email protected]
T. Alexander Aleinikoff Georgetown University, United States, [email protected]
Jose J. Alvarez-Gonzalez University of Puerto Rico, Puerto Rico, [email protected]
Joash Amupitan University of Jos, Nigeria, [email protected]
Hendra Tanu Atmadja University of 17th August 1945 Jakarta (UNTAG), Indonesia, [email protected]
Beverley Baines Queen’s University, Canada, [email protected]
Thomas E. Baker Florida International University, United States, [email protected]
Rafael González Ballar University of Costa Rica, Costa Rica, [email protected]
Paola Bergallo University of Buenos Aires and University of San Andrés, Argentina, [email protected]
Márcia Nina Bernardes Pontifical Catholic University of Rio de Janeiro (PUC-Rio), Brazil, [email protected]
Barbara L. Bernier Florida A & M University, United States, [email protected]
Henk Botha University of Stellenbosch, South Africa, [email protected]
Alan E. Brownstein University of California, Davis, United States, [email protected]
Jordan C. Budd Franklin Pierce Law Center, United States, [email protected]
Kathleen M. Burch Atlanta's John Marshall Law School, United States, [email protected]
Leopoldo Calvo-Sotelo Instituto de Empresa, Spain, [email protected]
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Fatou Kiné Camara Cheikh Anta Diop University of Dakar, Senegal, [email protected]
Gerard Carney Bond University, Australia, [email protected]
Stefano Catalano University of Milan, Italy, [email protected]
Hlako Jacob Choma University of Venda, South Africa, [email protected]
Eric C. Christiansen Golden Gate University, United States, [email protected]
Richard Clayton University of Cambridge, United Kingdom, [email protected]
Michael Coper Australian National University, Australia, [email protected]
Erin Daly Widener University, United States, [email protected]
Pinta Damanik Indonusa Esa Unggul University, Indonesia [email protected]
Gabriel I. de la Garza Free Faculty of Law of Monterrey, Mexico, [email protected]
Louis F. Del Duca The Pennsylvania State University, United States, [email protected]
Walter E. Dellinger, III Duke University, United States, [email protected]
Norman Dorsen New York University, United States, [email protected]
Mariolina Eliantonio Maastricht University, The Netherlands, [email protected]
A. Latief Fariqun Brawijaya University, Indonesia, [email protected]
Chris Gale Bradford University, United Kingdom, [email protected]
Rodolfo Figueroa Garcia-Huidobro Diego Portales University, Chile, [email protected]
John H. Garvey Boston College, United States, [email protected]
Dante Gatmaytan University of the Philippines, Philippines, [email protected]
Claudio Grossman American University, United States, [email protected]
Helmut Grothe Free University Berlin, Germany, [email protected]
Patrick O. Gudridge University of Miami, United States, [email protected]
Guy Haarscher Free University of Brussels, Belgium, [email protected]
Andrew F. Hessick Arizona State University, United States, [email protected]
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A. E. D. Howard University of Virginia, United States, [email protected]
Helen Irving University of Sydney, Australia, [email protected]
Vicki C. Jackson Georgetown University, United States, [email protected]
Faridah Jalil National University of Malaysia, Malaysia, [email protected]
Wei Jianxin Nankai University, China, [email protected]
R. R. Kelso South Texas College of Law, United States, [email protected]
Mark S. Kende Drake University, United States, [email protected]
Mehmet K. Konar-Steenberg William Mitchell College of Law, United States [email protected]
Ronald J. Krotoszynski, Jr. The University of Alabama, United States, [email protected]
Julian G. Ku Hofstra University, United States, [email protected]
Henk Kummeling Utrecht University, The Netherlands, [email protected]
Faisal Kutty Valparaiso University, United States, [email protected]
Jane M. La Barbera Association of American Law Schools, United States, [email protected]
Brian K. Landsberg McGeorge School of Law, United States, [email protected]
Michael Anthony A. Lawrence Michigan State University, United States, [email protected]
Wessel le Roux University of South Africa, South Africa
Jack Tsen-Ta Lee Singapore Management University, Singapore, [email protected]
Benedetta Liberali University of Milan, Italy, [email protected]
Ernesto Lucena Sergio Arboleda University, Colombia, [email protected]
Andrew Lynch University of New South Wales, Australia, [email protected]
Tahir Mamman Nigerian Law School, Nigeria, [email protected]
Susanna Mancini University of Bologna, Italy, [email protected]
John McEldowney University of Warwick, United Kingdom, [email protected]
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Obeng Mireku University of Limpopo, South Africa, [email protected]
Carl C. Monk International Association of Law Schools, United States, [email protected]
Federico Montalvo Jääskeläinen Comillas Pontifical University, Spain, [email protected]
Martha I. Morgan The University of Alabama, United States, [email protected]
Tumai Murombo University of the Witwatersrand, South Africa, [email protected]
Chibueze Polycarp Okorie Nigerian Law School, Nigeria, [email protected]
Marie-Luce Paris-Dobozy University College Dublin, Ireland, [email protected]
Elizabeth Hayes Patterson Association of American Law Schools, United States, [email protected]
Todd E. Pettys University of Iowa, United States, [email protected]
Mónica Pinto University of Buenos Aires, Argentina, [email protected]
Ricardo Leite Pinto Lusíada University, Portugal, [email protected]
Susan Westerberg Prager Association of American Law Schools, United States, [email protected]
Gloria Estenzo Ramos University of Cebu, Philippines, [email protected]
R. Venkata Rao National Law School of India University, India, [email protected]
Jamin Ben Raskin American University, United States, [email protected]
Frank S. Ravitch Michigan State University, United States, [email protected]
William J. Rich Washburn University, United States, [email protected]
Paul Rishworth University of Auckland, New Zealand, [email protected]
Shannon Roesler Oklahoma City University, United States, [email protected]
Mark D. Rosen Chicago-Kent College of Law, United States, [email protected]
Michel Rosenfeld Yeshiva University, United States, [email protected]
Carlos F. Rosenkrantz University of San Andrés, Argentina, [email protected]
Roberto Saba University of Palermo, Argentina, [email protected]
Vivek Salathia Rajiv Gandhi National University of Law, India, [email protected]
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Babaly Sall U.F.R Sciences Juridiques et Politiques, Senegal, [email protected]
V.S. Elizabeth National Law School of India University, India, [email protected]
Kevin W. Saunders Michigan State University, United States, [email protected]
Kim Lane Scheppele Princeton University, United States, [email protected]
Herman Schwartz American University, United States,[email protected]
Mortimer Sellers University of Baltimore, United States, [email protected]
Sanjeevy Shanthakumar Mats Law School, India, [email protected]
Jessica E. Slavin Marquette University, United States, [email protected]
Narongdech Srukosit Chulalongkorn University, Thailand, [email protected]
Linda Stewart North-West University, South Africa, [email protected]
Wasis Susetio Indonusa Esa Unggul University, Indonesia, [email protected]
Ruti G. Teitel New York Law School, United States, [email protected]
Atul Kumar Tiwari Dr. Ram Manohar Lohiya National Law University, India, [email protected]
Michel Troper University of Paris X, France, [email protected]
Mark V. Tushnet Harvard Law School, United States, [email protected]
Mehmet Cengiz Uzun Bahçeşehir University, Turkey, [email protected]
Louis J. Virelli, III Stetson University, United States, [email protected]
Francis SL Wang Kenneth Wang School of Law, Soochow University, China, [email protected]
Vicki Waye University of South Australia, Australia, [email protected]
John Williams The University of Adelaide, Australia, [email protected]
Susan H. Williams Indiana University - Bloomington, United States, [email protected]
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28 IALS Conference on Constitutional Law Membership (Listed by Country)
Schools University of Buenos Aires, Argentina University of Palermo, Argentina American University of Armenia, Armenia The University of Adelaide, Australia Australian National University, Australia Bond University, Australia University of Canberra, Australia Flinders University, Australia Griffith University, Australia University of Melbourne, Australia Monash University, Australia University of New South Wales, Australia Queensland University of Technology, Australia The University of Queensland, TC Beirne School of Law, Australia University of South Australia, Australia Southern Cross University, Australia University of Sydney, Australia University of Tasmania, Australia University of Western Australia, Australia University of Bahrain, Bahrain K.U. Leuven, Belgium FGV Rio de Janeiro Law School, Brazil Pontifical Catholic University of Rio de Janeiro (PUC-RIO), Brazil Pontifical Catholic University of São Paulo, Brazil Neophyt Rilsky Southwestern University, Buglaria University of British Columbia, Canada McGill University, Canada Osgoode Hall Law School-York University, Canada University of Ottawa-Civil Law Section, Canada Queen’s University, Canada University of Sherbrooke, Canada The University of Western Ontario, Canada
29 IALS Conference on Constitutional Law University of Windsor, Canada Diego Portales University, Chile Pontifical Catholic University of Chile, Chile The Chinese University of Hong Kong, China Kenneth Wang School of Law, Soochow University, China Nankai University School of Law, China Tsinghua University, China Sergio Arboleda University, Colombia University of Costa Rica, Costa Rica Masaryk University in Brno, Czech Republic University of Copenhagen, Denmark University of Turku, Finland Caucasus School of Law, Georgia Tbilisi State University, Georgia Bucerius Law School, Germany Free University of Berlin, Germany Ludwig-Maximilians University, Germany Christ College of Law, India Dr. Ram Manohar Lohiya National Law University, India Jindal Global Law School, India KIIT University (Kalinga Institute of Industrial Technology), India Mats Law School, India NALSAR University of Law, India National Law School of India University, India National Law University, Orissa, India Rajiv Gandhi National University of Law, India Symbiosis Law School, India University of 17th August 1945 Jakarta (UNTAG), Indonesia Brawijaya University, Indonesia Indonusa Esa Unggul University, Indonesia Dublin Institute of Technology, School of Social Science and Law, Ireland University College Dublin School of Law, Ireland Bar Ilan University, Israel University of Florence, Italy University of Foggia, Italy University of Milan, Italy Philadelphia University, Jordan
30 IALS Conference on Constitutional Law Yarmouk University, Jordan Kuwait International Law School, Kuwait Kuwait University, Kuwait Advance Tertiary College, Malaysia Islamic Science University of Malaysia-Faculty of Syariah and Law, Malaysia University of Kebangsaan, Malaysia Autonomous University of Nuevo León, Mexico Free Faculty of Law of Monterrey, Mexico Panamerican University, Mexico University of Maastricht, The Netherlands Tilburg University, The Netherlands Utrecht University, The Netherlands VU University Amsterdam, Netherlands University of Auckland, New Zealand Victoria University of Wellington, New Zealand Nigerian Law School, Nigeria University of Jos, Nigeria University of Cebu, Philippines University of the Philippines, Philippines University of Gdansk, Poland Lazarski School of Commerce and Law, Poland Leon Kozminkski Academy, Poland Lusiada University, Portugal University of Puerto Rico, Puerto Rico Qatar University College of Law, Qatar Cheikh Anta Diop University of Dakar, Senegal The National University of Singapore, Singapore Singapore Management University, Singapore University of Trnava, Slovak Republic University of Cape Town, South Africa University of Limpopo, South Africa Nelson Mandela Metropolitan University, South Africa University of Pretoria, South Africa University of Stellenbosch, South Africa University of the Free State, South Africa University of Venda School of Law, South Africa University of the Witwatersrand, South Africa
31 IALS Conference on Constitutional Law Handong International Law School, South Korea Instituto de Empresa, Spain Comillas Pontifical University, Spain Lunds University, Sweden University of Fribourg, Switzerland University of Lausanne, Switzerland University of Zürich, Switzerland National Chiao Tung University, Institute of Technology Law, Taiwan Chulalongkorn University, Thailand Bahcesehir University, Turkey Hacettepe University, Turkey Dubai Police Academy, United Arab Emirates United Arab Emirates University, United Arab Emirates Bradford University Law School, United Kingdom University of Warwick, United Kingdom Academy of Intellectual Property Law, United States University of Akron, United States American University, United States Arizona State University, United States University of Arkansas at Little Rock, United States Atlanta’s John Marshall Law School, United States University of Baltimore, United States Brigham Young University, United States Boston College, United States University of California at Davis, United States University of California at Hastings, United States California Western College of Law, United States Case Western Reserve University, United States The Catholic University of America, United States Chicago-Kent College of Law, United States University of Cincinnati, United States Concord Law School, United States University of the District of Columbia, United States Florida A&M University, United States Florida International University, United States The George Washington University, United States Georgetown University, United States
32 IALS Conference on Constitutional Law Hamline University, United States Harvard Law School, United States Hofstra University, United States University of Illinois, United States Indiana University-Bloomington, United States University of Iowa, United States Lewis and Clark Law School, United States Marquette University, United States University of Miami, United States University of the Pacific-McGeorge School of Law, United States Michigan State University, United States Mississippi College of Law, United States University of Missouri, United States University of Nebraska, United States New England School of Law, United States New York Law School, United States New York University, United States Northeastern University, United States Nova Southeastern University, United States The Ohio State University, United States University of Oklahoma, United States Oklahoma City University, United States Pace University, United States The Pennsylvania State University, United States University of Pittsburgh, United States St. John’s University, United States St. Mary’s University of San Antonio, United States Santa Clara University, United States Seattle University, United States South Texas College of Law, United States Stetson University, United States Suffolk University, United States Syracuse University, United States Taft Law School, United States Temple University, United States Thomas M. Cooley Law School, United States University of Tulsa, United States
33 IALS Conference on Constitutional Law Valparaiso University, United States Vanderbilt University, United States Vermont Law School, United States University of Virginia, United States Washburn University School of Law, United States Washington University in St. Louis, United States Widener University, United States William Mitchell College of Law, United States Yale Law School, United States Yeshiva University, United States University of Zimbabwe, Zimbabwe
Sustaining Members Cornell Law School, United States
Organizations American Bar Association Section on Legal Education, United States Association of American Law Schools, United States Deutscher Juristen-Fakultätentag - Germany Law Faculties Association, Germany European Law Faculties Association (E.L.F.A), Belgium Law School Admission Council, United States National Conference of Bar Examiners, United States
Individuals David Barker, University of Technology, Australia Marek Boyarski, Wroclaw University, Poland Fatou Camara, University Cheikh Anta Diop of Dakar, Senegal Juliana V. Campagna, The John Marshall Law School, United States Krystian Complak, Wroclaw University, Poland Eric C. Christansen, Golden Gate University, United States Kurt Deketelaere, K.U. Leuven, Belgium Jörg Fedtke, Tulane University, United States Cynthia L. Fountaine, Texas Wesleyan University School of Law, United States Gregg S. Garrison, Southern California Institute of Law, United States George J. Gliaudys, Irvine University, United States Terry Hutchinson, Queensland University of Technology, Australia
34 IALS Conference on Constitutional Law Mark Kende, Drake University Law School, United States Ronald Krotszynski, University of Alabama, United States Kevin Malunga, University of the Witwatersrand, South Africa Obeng Mireku, University of Limpopo, South Africa Martha Morgan, University of Alabama, United States Anjanette Raymond, Queen Mary University of London, UK Neomi Rao, George Mason University, United States Paula Rhodes, University of Denver-Sturm College of Law, United States Babaly Sall, U.F.R Sciences Juridiques et Politiques, Senegal Mark E. Wojcik, The John Marshall Law School, United States
Founding Benefactor The Wang Family Foundation, China
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Plenary I
Comparative Constitutional Law
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The Bahraini Constitutional Governmental System “An Overview”
Dr. Mohammed Al Mashhadani University of Bahrain Kingdom of Bahrain
Generally speaking, the parliamentary system in the democratic states is divided into three main systems. This division is based on the organization and relationship between the three branches of the government: the legislative, the executive and the judicial. If these powers of a state are both upon each other in a hierarchical manner this means that this state is adopting the assembly system. A state whose powers are divided in a rigid way, then its system is considered a presidential one. And the state which adopts a flexible principle of powers and the relationship among its governmental powers is based cooperation and interaction this means that it is considered a parliamentary state. So, where does the Bahraini constitutional system belong among these systems?
To answer this question one needs to refer to the Bahraini constitution. Article (32) of the constitution of the Kingdom, 2002, now if force, reads: “the governmental system is based on the principle of separation of powers between the legislative, the executive and the judicial. These authorities should coordinate with each other according to the provisions of the constitutions. They must not abdicate all or any of their powers to each other“. In light of the above stated provision, one can say that the Bahraini constitutional system could be a parliamentary system or a combination of the presidential and the parliamentary systems (i.c. a semi parliamentary system). This assumption is based on the fact that the parliamentary system the mixed system have the same features namely: the executive branch is bilateral and the relationship between the legislature and the executive is based on cooperation and interaction between them. But if we thoroughly examined the provisions of the constitution as a whole one will certainly, say that the kingdom constitutional system is a modified parliamentary system. It equips the king with factual and real powers contrary to the traditional parliamentary system which provides the head of the state with only symbolic and non-factual powers. It should be noted, also, that our constitutional system is not entirely a mixed constitutional system becomes the mixed system is usually found in states where its head (president) chosen by a secret ballot where as the head of our kingdom, the king, holds his position according to inheritance rules.
Based on this analysis, it is clear, that the governmental system of Bahrain is a semi parliamentary system. We will discuss its features as follows:
I. The Executive branch is bilateral.
In the traditional parliamentary system, the executive branch consists of the head of the state who has no real power and a cabinet (a council of ministers) who hold the real executive power
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which entitles it to carry out the executive functions of the state. On the other hand, the Bahraini constitution provides that the executive branch of the kingdom consists of the king and a council of ministers (i.e. the prime minister and a number of ministers). But it should be noted, that the king is not deprived of the factual power. On the contrary. His majesty has amble executive power since this power is divided between him and the council of ministers. (art. 32/b of the constitution) furthermore, the king shares with the national assembly the legislation power according to the provisions of the constitution (art. 32/b pf the constitution)
II. The cooperation and mutual supervision between the legislative and the executive branches.
As we mentioned above, the Bahraini constitution has provided that the relationship between the authorities of the state are based on a flexible principle of separation of powers that includes cooperation and mutual supervision between the legislative and the executive authorities. We will discuss these two points as follows.
A. Aspects of cooperation between the legislative and the executive branches.
These aspects can be summarized as follows:
1 – The rule of the executive authority in facilitating the selection of the legislative authority.
The national assembly, as it is stated in the constitution, is composed of two chambers. The council (the consultative council) and the chamber of deputies. The executive authority, one should emphasize, plays an important role in the selection of the members of both councils. The king appoints, by a royal decree, all the members of the shura council. Article (25) of the constitution states that : “the shura council consists of forty members that are appointed by a royal decree”. Article (33/f) of the constitution, also, reads “the king appoints the members of the shura council and dismisses them by a royal decree”.
As far as the chamber of Deputies is concerned, the executive authority has a crucial role in conducting the election process including the determination of its date and the supervision of its process.
2 – The role of the executive authority to invite the national assembly for meeting and its role to adjourn its sessions.
According to the provision of the constitution the national assembly holds its annual session on the second Saturday of the beginning of October. Nevertheless. The king is entitled to call the above named assembly for a meeting prior to this date. Article (42/b) of the constitution states: “the king calls the national assembly to meet by a royal decree…”. Article (71) also states: “the national assembly meets on the second Saturday at the beginning of the month of October, unless otherwise determined by the king to call for a meeting before that date..”
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Based upon the above stated provisions, if the date provided in the constriction was due and no royal decree was issued to invite the national assembly for a meeting, this assembly should held its meeting in accordance with article (71) of the constitution. Furthermore, the king has authority to call the national assembly to an unusual session. The king is entitled, also, to open the ordinary session of parliament and delivers a royal speech. He may ask the crown prince of whom he trust to dialer the speech on his behalf. Each chamber should form a committee from its members to prepare a draft reply to the royal speech and each chamber shall submit its approval reply to the king. (art. (6a/b) of the constitution)
The king have the right to adjourn the regular and non-regular sessions of the national assembly by a royal decree (art. 74) and the annual ordinary session may not be adjourned before the approval of the budget act (art. 76). In addition, the prime minister can attend the sessions of the shura council and the chamber of deputies. Both chambers may invite senior executive officials to asset them with certain legislative matters.
3 – Participating in the legislative function.
The participation of the executive branch in the legislative process includes: the ability of the executive to propose draft acts. The authority of the king to ratify these approved acts and to issue them. Article (35) of the constitution states: “the king has the right to propose amendments of the constitution and to propose acts. He has the power to ratify and to issue them”. Article (70) also, reads: “a law will not be issued unless it was approved by both chambers”
The deputies and the shura or by the national assembly according to the situations determined by the constitution. The act must be ratified by the king.
In exceptional cases, and contrary to the general rule, the exertive authority may discharge the task of legislation according to a mandatory provision of the constitution as stated in article 32/a. the government is, also, entitled to issue decrees of necessity in light of article (38) of the constitution. It states.: “in case of necessity and of the national assembly was not in session or was dissolved and if the matter was urgent and could not be delayed, the king issue decrees which have the same force of acts of the national assembly provided that it must not violate the provisions of the constitution.
4 – Budget act.
One the important features of cooperation between the legislative and the exertive branches of government is the formation of the budget act. Provisions of the constitution stipulates that the budget bill is to be prepared by the government. And the shura council and the chamber of deputies are responsible to discuss the bill and approve it. And the session of the council may not be adjourned prior to the approval of the budget.
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B. Aspects of mutual supervision and interaction between the legislature and the executive.
The Bahraini constitution embodies amble provisions which allows for interaction and mutual supervision between the legislative and the executive branches of the government. That is to say. Any member of the national assembly is entitled to bring written questions to any minister or ministers with compliance with article (91) of the constitution which reads: “it is an absolute right for each member of the shura council or the chamber of deputies to ask written questions to the ministers to clarify matters within their compete once”. Moreover ministers are responsible before the chamber of deputy for the work of their ministries..
The named chamber direct an interrogation to any minister concerning any subject related to his minister. This interrogation should be signed by at least five members of this chamber. And as consequence vote of confidence can be casted by at least ten members of the chamber of deputies. The collective responsibility of the council of ministers may arise by a two –third majority of the above named chamber of the grounds that the chamber becomes unable to cooperate with the prime minister. This petition may be raised before his majesty, the king who may decide either to accept it or to dissolve the chamber of deputies (art.67 of the constitution) moreover, the chamber of deputies is entitled to form comities from its members to investigate any matter within its competence (art. 69). Article (68) also, states that “members of the chamber of deputies have the right to express their opinions and wishes to the government concerning public matters”.
On the other hand, the executive authority is constitutionally entitled to dissolve the chamber of deputies. Article (42) of the constitution entitled the king to this right. The king can, also, postpone sessions of the national assembly for a period exceeding not more than two months provided that this right is not to be repeated in the same sitting session. This period shall not be calculated within the specified period for the annual session which must be not less than seven months (art.90).
To conclude, the Bahraini constitutional system adheres righter to the traditional parliamentary system nor to the presidential one. It stands on its own merit and spastic nature since it burghs some of its aspects from the parliamentary system and some other aspects from the presidential system. In other words, the governmental constitutional system in the kingdom of Bahrain is a semi-parliamentary system.
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The Controller Types of Constitutional Law in Jordan
Dr. Osama al Neimat Philadelphia University Faculty of Law Jordan
Constitution of Jordan has taken control of two types:
First: the nature of the control of dual / legal political / through the development of the formation of a special body on behalf of the Higher Council for the interpretation of the Constitution, composed of nine members, including four senators, including Senate President, who chairs the Council and five other members of the senior judges in accordance with the judicial salaries The Council took its vote of six members of /, which means giving priority to the judicial / has given the Council the right to interpret the Constitution on the basis of requests or to take certain actions and noted that this formula could include prior or subsequent control but does not include the power to hear appeals in the direct individuals.
Second: the way of judicial control:
Referring to the judicial norms and practices, we find it stable in the Jordanian courts that have addressed all the rights to examine the constitutionality of laws through the submissions which believes that any law contrary to the Constitution and the procedure governing the avoidance of the document to him or to refrain on the application and that during the examination of any proceeding instituted in the courts if the order to raise the pay and the court found the need to address to discuss the constitutionality of the law for the decision or action taken as a reason for an action that necessarily have the right to respond on its own to examine the constitutionality of the law which is based on the merits of the case to move any court as the guardian of legality and the application of the law
It is obvious that the resolution of such objections or claims not to acquire the ergomnes, but it is limited to the authority of a relative merits of the case and dispute the authenticity of such a decision are authoritative moral does not prevent the emergence of jurisprudence of the Court contrary to the other, or Back on the discretion of the court earlier.
On the other hand there is the face of another challenge to the constitutionality of laws in Jordan, a direct appeal to the Supreme Court of Justice of the interest has settled the legal status of such bodies since 1992, after the passage of the law of the Supreme Court of Justice No. 12 of 1992 to give the Supreme Court of Justice the right to search the constitutionality of laws through the establishment of direct action of the stakeholders as follows: the appeals made by any aggrieved party's request to cancel any decision or action under any law violates
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the Constitution or any violation of the Constitution or the law .. Appeals by any aggrieved party's request to suspend temporarily the provisions of any law contrary to the Constitution or a violation of the law or the Constitution has already been to the Supreme Court has issued decisions that are adopted by the temporary suspension of the laws because they are contrary to the Constitution.
We conclude from this that the Jordanian legal system in general to accommodate forms and means of appeal known to achieve control over the constitutionality of laws, except for proceedings to challenge the acceptance of a direct interest, however, is that any legal system in Jordan is consistent with the findings of the vast majority of the nations of the world not to accept the challenge However, a direct interest in the conventional sense of the law on the grounds that to say otherwise, the admissibility of the appeal if the absolute confusion and creates many negative points than any arising from the positive to allow the appeal of those who had no direct interest.
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A Modest Experiment in Pedagogy: Lessons on Comparative Constitutional Law
Thomas E. Baker* Florida International University United States
In 2002, when I joined the founding faculty at the Florida International University College of Law, I had been teaching constitutional law for over two decades. I prided myself on being an innovative teacher who was willing to try new and different approaches.1 Like many American law professors, however, I was agnostic about comparative and international law. I had grown accustomed to teaching a traditional course, using a traditional casebook, following a traditional approach with only an occasional filigree.2 My no-nonsense syllabus promised:
Our course goal is to achieve the basic understanding of modern constitutional law that is necessary to be a successful law student, an able lawyer, and a good citizen. The objects of our study are the Constitution and the Supreme Court. This is a course in “con law for lawyers”—we will read, analyze, and argue about constitutional law the way lawyers and judges do.
As its name suggests, the University I joined was originally chartered to promote international understanding.3 Its stated mission is to be “an urban, multi-campus, research university serving South Florida, the state, the nation and the international community [that] impart[s] knowledge through excellent teaching, promoting public service, discovering new knowledge, solving problems through research, and fostering creativity.”4 FIU has long been committed to the idea of globalism and has achieved considerable distinction in the social sciences and the international realm, through its programs, centers, and institutes.5
The College of Law is contributing to that institutional prominence.6 We understand that our students will practice law in an increasingly globalized professional reality—their “real world” will be the “entire world.”7 Our College’s mission statement provides, in part:
* Professor of Law, Florida International University College of Law, Miami, Florida (http://law.fiu.edu/; [email protected]). 1 See, e.g., Thomas E. Baker, A Law Student's Responsibility for a Liberal Education, 20 TEX. TECH L. REV. 1153 (1989); Thomas E. Baker & James E. Viator, Not Another Constitutional Law Course: A Proposal to Teach a Course on the Constitution, 76 IOWA L. REV. 739 (1991); Thomas E. Baker, Teaching a Course on the Constitution—Finding and Using Founding Documents; Casebook and Supplement; Internet Sites Can Make a Web-Based Course, Using Quizzes, Opinion Writing Assignment: entries in TEACHING THE LAW SCHOOL CURRICULUM (Steven Friedland & Gerald F. Hess eds. 2004). 2 See generally Thomas E. Baker, Mastering Modern Constitutional Law, 21 SEATTLE U.L. REV. 927 (1998) (describing some of the filigrees I add to Rotunda’s MODERN CONSTITUTIONAL LAW). 3 Florida International University—Millennium Strategic Plan at 12 (May 28, 2002) (http://www.fiu.edu/oir/docs/msp.pdf). 4 Florida International University Mission Statement (http://academic.fiu.edu/docs/provost_mission.htm). 5 See generally supra note 3, Millennium Strategic Plan at 12-16. 6 Thomas E. Baker, Reflections on Law Schools and the Idea of the University, 1 FIU L. REV. 1 (2006). 7 See generally Lawrence M. Friedman, Borders: On the Emerging Sociology of Transnational Law, 32 STAN. J. INT’L L. 65 (1996); Mark C. Rahdert, Comparative Constitutional Advocacy, 56 AM. U. L. REV. 553 (2007); Laurel S. Terry, et al., Transnational Legal Practice, 43 INT’L LAWYER 943 (2009); John E. Sexton, Curricular Responses to Globalization,
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The College of Law offers a curriculum that prepares students for ethical and effective practice of law in an increasingly global and multicultural world. The curriculum includes a full and faithful presentation of the courses traditionally offered at nearly all U.S. law schools. In addition, building on the parent university’s distinction in its international programs, the curriculum incorporates important developments in the globalization of both public and private law. The academic program takes a pervasive approach to international and comparative law, incorporating these perspectives into all domestic law classes, and includes a required introductory course and a rich array of upper level electives in international, transnational and comparative law.8
We have kept each of these curricular promises. First, we created a hybrid course that is unique in American legal education: “Introduction to Comparative and International Law,” a three-hour required first-year course offered in the spring semester.9 Second, like most other American law schools, our curriculum presents a menu of advanced, elective courses in international and comparative law.10 Third, the faculty have committed to “globalizing, internationalizing, trans-nationalizing, and comparativizing” the legal education we provide our students in every course we teach.11 Our Faculty Bylaw on teaching
20 PENN. ST. INT’L L. REV. 15, 17 (2001); Report Regarding the Pacific McGeorge Workshop on Globalizing the Law School Curriculum, 19 PAC. MCGEORGE GLOBAL BUS. & DEV. L.J. 267, 286-92 (2006). 8 FIU College of Law Faculty Bylaws, Part I. at 5 (Mar. 2, 2007). 9 The course catalogue description reads:
This new course introduces students to public international law, international economic law, and comparative law. Exposure to the law of nations in the international component of the course poses critical jurisprudential questions on the nature of law, the role of enforceability, and the prospects for constructing an international society. The comparative component compares and contrasts the common law system that prevails in the United States to civil law systems, especially as they have evolved in Latin America. Together the course provides the foundation for later advanced study in these and other topics as part of the upper level curriculum.
For an account of the curious conceptual origins of this course, see generally Leonard P. Strickman, A New Law School: An International Curriculum, 43 S. TEX. L. REV. 641, 643-44 (2002). 10 A sample list of these courses includes: Admiralty Law; Caribbean Law and Development; Comparative Business Law; Comparative Constitutional Law; Comparative Criminal Law; Comparative Environmental Law Urban Issues; Comparative Family Law; Comparative Law; Comparative Law: Constitutions and the Judicial Process; Comparative Perspectives on the Regulatory State; Conflict Management Practice-Comparative Perspective of Mediation; Conflict Management Practice-Comparative Perspectives of Negotiation; Conflict Prevention and Community Improvement; Conflicts of Law; Cross Cultural Communication in International Dispute Resolution; Environmental Health Law and Policy; European Union Law; Foreign Relations and National Security Law; Immigration and Human Rights Clinic; Immigration Law; International and Comparative Sales; International Antitrust; International Banking; International Business Transactions; International Commercial Arbitration; International Criminal Law; International Environmental Law; International Human Rights Law; International Intellectual Property Law; International Litigation; International Organizations; International Taxation; International Telecommunications Law; International Trade Law and Policy; Introduction to International and Comparative Law; Latin American Private Law; Law and Politics in Latin America; NAFTA and Other Regional Trade Agreements; Ocean and Coastal Law; Payment Systems; Profesión Jurídica Comparada (Comparative Legal Profession); Public International Law; Refugee and Asylum Law; and Transnational Commercial Law. See http://law.lawnet.fiu.edu/index.php?option=com_content&task=view&id=64&Itemid=613. 11 M.C. Mirow, Globalizing Property: Incorporating Comparative and International Law into First-Year Property, 54 J. LEGAL EDUC. 183, 186 (2004).
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requires: “Each faculty member must be committed to excellence in fulfilling teaching responsibilities, and, consistent with the mission of the College of Law, devote a minimum of one class hour per course credit hour to coverage of relevant international and comparative law materials in their domestic law classes, except seminars.”12
In the rest of this paper, I will explain how I meet this obligation in my first-year, first semester four-hour required course on constitutional law. The general advice I would offer others would be to repeat the same expert advice that I have benefited from following. First, my approach was “selective and modest”—a tentative effort to expose my novice students to my own novice comparativist perspective.13 After all, my students are enrolled in an introductory survey course on American constitutional law, not an advanced comparative law course, and I myself am not a comparativist. Second, I sought to “identify practices or doctrines in other stable democracies that are different from those in the United States, and ask: ‘They do things differently there. What reasons might they have for adopting their practices or doctrines? What reasons might there be that caution against our adopting those practices or doctrines?’”14 Finally, I set out to explore with my students some interesting examples of a phenomenon Justice Breyer so aptly but obliquely once described: how and why “[j]udges in different countries increasingly apply somewhat similar legal phrases to somewhat similar circumstances.”15
After consulting some of the excellent teaching resources available,16 I developed four “Lessons on Comparative Constitutional Law.” Each is a self-contained unit consisting of a brief introduction, some general discussion questions, links to assigned readings, and a list of recommended further readings. In the manner of a bricoleur,17 I assembled the readings for the Lessons, other background materials including video recordings of relevant programs and lectures, and links to relevant documents and accompanying sites for my students to access on the user-friendly West Educational Network (“TWEN”).18 Given the Conference’s length limitation for this paper, I can only briefly summarize the Lessons here. (My Lessons admittedly are derivative of the work of others; I would be pleased to share copies with anyone who sends me an email request at [email protected].)
12 FIU College of Law Faculty Bylaws, Part III. B (1) at 10 (Mar. 2, 2007). 13 Neil S. Siegel, Some Modest Uses of Transnational Legal Perspectives in First-Year Constitutional Law, 56 J. LEGAL EDUC. 201, 201 (2006) (“Selectivity and modesty are warranted.”). 14 Mark Tushnet, How (and How Not) to Use Comparative Constitutional Law in Basic Constitutional Law Courses, 49 ST. LOUIS U. L.J. 671, 674 (2005). 15 David S. Law, Generic Constitutional Law, 89 MINN. L. REV. 652, 661 (2005) quoting Stephen Breyer, The Supreme Court and the New International Law (ASIL Annual Meeting Apr. 4, 2003). 16 E.g., GLOBAL PERSPECTIVES ON CONSTITUTIONAL LAW (Vikram David Amar & Mark V. Tushnet eds. 2009); MICHAEL LOUIS CORRADO, COMPARATIVE CONSTITUTIONAL REVIEW: CASES AND MATERIALS (2005); NORMAN DORSEN, et al., COMPARATIVE CONSTITUTIONALISM: CASES AND MATERIALS (2003); VICKI C. JACKSON & MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW (2d ed. 2006); DEFINING THE FIELD OF COMPARATIVE CONSTITUTIONAL LAW (Vicki C. Jackson & Mark Tushnet eds. 2002); BRIAN LANDSBERG & LESLIE JACOBS, GLOBAL ISSUES IN CONSTITUTIONAL LAW: CASES AND MATERIALS (2007); FRANCOIS VENTER, CONSTITUTIONAL COMPARISON: JAPAN, GERMANY, CANADA & SOUTH AFRICA AS CONSTITUTIONAL STATES (2000). 17 See Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 YALE L.J. 1225, 1229 (1999). 18 E.g., A Conversation on the Relevance of Foreign Law for American Constitutional Adjudication with U.S. Supreme Court Justices Antonin Scalia & Stephen Breyer, American University (Jan. 13, 2005) (http://www.wcl.american.edu/secle/founders/2005/050113.cfm); Center for Comparative Constitutionalism (http://ccc.uchicago.edu/links.html); Comparative Constitutions Project (http://www.comparativeconstitutionsproject.org/); Concourts.net – comparative constitutional analysis (http://www.concourts.net/); Constitution Finder (http://confinder.richmond.edu/); International Constitutional Law Project (http://www.servat.unibe.ch/icl/info.html).
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Lesson I: Judicial Review. After covering the introductory chapter with the traditional cases on the power of judicial review and its limitations, students first read a traditional descriptive account of how judicial review spread throughout the world, especially in the second half of the 20th century,19 and then read Ran Hirschl’s critique of that development from the perspective of critical theory.20 Discussion questions include: What difference has the power of judicial review made in the constitutional history of the United States and other countries? What explains a country’s attitudes towards its judicial institutions, i.e., courts, judges and the exercise of judicial review? Can other institutions of government besides the judiciary define and protect individual rights? What are the relative advantages and disadvantages of the traditional three branches—Legislative, Executive and Judicial—for interpreting the Constitution? How have different countries sought to adjust for the “counter-majoritarian” difficulty of the doctrine of judicial review?
Lesson II: Transnational Interpretation. Law students today are familiar with the concept of globalization and how transnational influences transcend national boundaries and influence matters of culture and economics. Certainly, the popular culture of the United States is a significant influence around the world. Indeed, the phenomenon of “Americanization” has been derisively dubbed “McWorld.” Students are asked to apply these ideas to constitutional law. Can it be imported and exported from one country to another or is a particular country’s fundamental law unique—exclusive and self-contained to that country? The required readings include an article by now former Puisne Justice L’Heureux-Dube of the Supreme Court of Canada, in which she criticizes the Rehnquist Court for not engaging in the international judicial dialogue on comparative constitutional law,21 and a case in which the Justices argue over the propriety of importing constitutional law into the United States.22 This Lesson comes after students have been exposed to the deep structure of the constitution, i.e., separation of powers and federalism, and after they have carefully parsed judicial opinions self- consciously examining constitutional hermeneutics.
Lesson III: Affirmative Action. After completing their study of the Equal Protection Clause, students read about “special measures” referenced in the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Elimination of All Form of Discrimination Against Women.23 In the United States, “special measures” are usually called “affirmative action” or “reverse discrimination.” In the European Community, the term is “positive action.” The programs are known in India as “compensatory discrimination.” Students are asked to consider whether these government programs are permitted under the various international treaties and the domestic constitutional law of the relevant country. Students are expected to respond comparativistically: first from the perspective of the United States—
19 William E. Nelson, The Worldwide Spread of Judicial Review in WILLIAM E. NELSON, MARBURY V. MADISON: THE ORIGINS AND LEGACY OF JUDICIAL REVIEW 104-13 (2000). 20 Ran Hirschl, Looking Sideways, Looking Backwards, Looking Forwards: Judicial Review vs. Democracy in Comparative Perspective, 34 U. RICH. L. REV. 415 (2000). See also RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM (2004). 21 Clair L’Heureux-Dube, The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court, 34 TULSA L. J. 15 (1998). 22 Knight v. Florida, 528 U.S. 990 (1999). 23 See generally Ruth Bader Ginsburg & Deborah Jones Merritt, Affirmative Action: An International Human Rights Dialogue, 21 CARDOZO L. REV. 253 (1999).
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based on their course study—and second from the different perspective of another country of their choosing based on their reading from an extensive list of country-specific articles.24
Lesson IV: Reproductive Rights. After we cover fundamental rights, including the right to privacy and sexual autonomy,25 students read the line of high court cases on abortion from either Canada26 or Germany.27 The obvious comparison, of course, is with the line of cases in U.S. REPORTS that includes Griswold,28 Roe,29 and Casey.30 We then discuss a hypothetical state Zero Population Growth Act, patterned after China’s “One Child Rule,” which would impose a two-child limitation on families for the stated purposes of preserving the quality of life in the state, slowing increased demand for state government services, and reducing environmental degradation.
As I remind my students, their study of comparative constitutional law helps them better understand U.S. constitutional law, not unlike how reading a concurring opinion or a dissenting opinion helps them better understand a majority opinion. Their engagement with the materials during class is gratifying. Preparation is evident. Participation is animated. Discussion often goes over the allotted class time and typically spills out into the hallway.
My students’ engagement with the comparative constitutional law readings is part of their evaluation in the form of an essay paper, worth 10 percent of their final course grade. Having been exposed to the ongoing debate among the current Justices of the Supreme Court of the United States whether comparative constitutional analysis is an appropriate and a legitimate aspect of American judicial review,31 they are required to take a side in this debate and write an essay to justify their position within the American judicial tradition. They are expected to consider and respond to the opposing arguments, as well, in a balanced and measured essay with examples.32 Their thoughtful
24 E.g., THE GENDER OF CONSTITUTIONAL JURISPRUDENCE (Beverley Baines & Ruth Rubio-Marin eds. 2005) (comparing the constitutions of Australia, Canada, Columbia, Costa Rica, France, Germany, India, Israel, South Africa, Spain, Turkey, and the United States); Symposium on Affirmative Action: An International Perspective on a Global Dilemma, 36 CONN. L. REV. 649-877 (2004) (articles about the United States, South Africa, India, Brazil, and international human rights law). 25 Cf. Martha F. Davis & Bethany Withers, Reproductive Rights in the Legal Academy: A New Role for Transnational Law, http://ssrn.com/abstract=1410182 (2009) (forthcoming J. LEGAL EDUC.). 26 Morgentaler, Smoling and Scott v. The Queen, 1 S.C.R. 30 (1988) (Supreme Court of Canada), redacted in VICKI C. JACKSON & MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW 74-110 (2d ed. 2006). 27 JACKSON & TUSHNET, supra note 26, at 110-40 (redacting the 1975 West German Abortion Decision and the post- unification 1993 decision invalidating the subsequent statute the Bundestag enacted in 1990). 28 Griswold v. Connecticut, 381 U.S. 479 (1965) (right of marital privacy). 29 Roe v. Wade, 410 U.S. 113 (1973) (right of privacy/abortion). 30 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (reaffirming Roe v. Wade). 31 See, e.g., Roper v. Simmons, 543 U.S. 551 (2005) (Kennedy, J., for the Court; O’Connor, J. & Scalia, J., dissenting); Lawrence v. Texas, 539 U.S. 558 (2003) (Kennedy, J. for the Court; Scalia, J., dissenting); Grutter v. Bollinger, 539 U.S. 306, 344 (2003) (Ginsburg, J., concurring); Atkins v. Virginia, 536 U.S. 304, 321 (2002) (Rehnquist, C.J., dissenting); Foster v. Florida, 537 U.S. 990 (2002) (Thomas, J., concurring; Breyer, J., dissenting); Knight v. Florida, 528 U.S. 990 (1999) (Thomas, J., concurring; Breyer, J., dissenting); Printz v. United States, 521 U.S. 898, 921 n.11 & 976 (1997) (Scalia, J., majority; Breyer, J., dissenting); Thompson v. Oklahoma, 487 U.S. 815, 830-32 & 869 n.4 (1988) (Stevens, J., for the Court; Scalia, J., dissenting). 32 Discussion Questions include: Are constitutional provisions arbitrary political constructs that are idiosyncratic to a particular country and a particular era or are there background normative principles that are universal for all peoples and constant over all time? How is the constitution of a nation related to more general and fundamental cultural traditions, i.e., does the constitution shape the culture or does the culture shape the constitution? How is
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essays are further evidence of how they have begun to appreciate a comparative constitutional law perspective.
Thus, by the completion of my introductory course on U.S. constitutional law, my 1L students have begun to understand intuitively how “comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights.”33 That is enough for me.
your view of the proper role of a constitutional court reflected in your analysis? Does your argument depend on the nature and the content of the particular clause, i.e., is comparative analysis more appropriate for some clauses than for other clauses? Does your argument apply transnationally, i.e., would you treat comparative constitutional arguments the same whether you were a member of the Supreme Court of the United States dealing with the constitutional law of another country or whether you were a member of the constitutional court of some other country dealing with the constitutional law of the United States? See generally Christopher A. Whytock, Taking Causality Seriously in Comparative Constitutional Law: Insights from Comparative Politics and Comparative Political Economy, 41 LOY. L.A. L. REV. 629 (2008). 33 Ruth Bader Ginsburg & Deborah Jones Merritt, supra note 23, at 282.
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Foreign Constitutional Law and the Courts: Reflections from the South
Henk Botha University of Stellenbosch South Africa
The jurisprudence of South Africa’s Constitutional Court is often held up as a model – or a rather extreme example – of the role judges can play in facilitating a global constitutional dialogue. Whether the Court has, in a given case, followed what it took to be an evolving transnational consensus, modeled its jurisprudence on foreign law, or distinguished the position in South Africa from that in foreign jurisdictions, comparative law has played a fundamental – and openly acknowledged – role in the development of its jurisprudence. This is neither the place for a detailed and critical appraisal of the Court’s use of foreign law, nor for answering the question whether its general approach can guide constitutional adjudication in other parts of the world. Instead, I will make a few rather general observations about the Court’s jurisprudence, which can hopefully elicit further debate about the possibilities and pitfalls of judicial recourse to foreign law. My discussion will be structured around three basic questions: why, what and how to compare?
1. Why compare? The openness of a legal system to comparative influences depends on a variety of legal-cultural and historical factors. In South Africa, the use of foreign constitutional law by the courts has been facilitated by a number of factors. These include: the lack of a constitutionalist tradition and the history of Westminster-style parliamentary sovereignty before 1994, the fact that South Africa has a hybrid legal system shaped by different legal traditions, the role of foreign and international law in the making of both the interim and final constitutions, and the express constitutional authority given to judges to consider foreign law in their interpretation of the fundamental rights provisions in both constitutions. Although the use made of foreign law in particular cases is often controversial, I know of no South African constitutional lawyer or commentator who would dispute that foreign law can – and often does – play a legitimate role in constitutional interpretation. For constitutionalists in South Africa, acceptance of the role of foreign law in constitutional adjudication coexists quite comfortably with a sense of the uniqueness of South Africa’s constitutional experiment.
Not all national legal systems exhibit the same degree of openness to foreign influences. It is nevertheless possible to identify a number of reasons for judges to have recourse to comparative constitutional materials. And while it is true that the precise meaning and persuasive power of these reasons are likely to vary from one national system to another, the burgeoning literature on comparative constitutionalism suggests that at least some justifications for judicial recourse to foreign law transcend the limits of particular national jurisdictions.
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Elsewhere, I have identified seven reasons why South African judges have recourse to comparative constitutional materials.1 For present purposes, four of them should suffice: • First, judges often invoke the normative weight of an evolving transnational value consensus and/or the currency of a widely followed interpretive approach. The Constitutional Court’s finding that judicially imposed whipping ‘offends society’s notions of decency’ and violates human dignity provides an example of the former,2 while its embrace of a broader constitutionalist tradition in which notions like dignity, contextual/ purposive interpretation and proportionality take centre stage illustrates the latter. • Second, comparative constitutional law enables lawyers and judges, through a consideration of the differences between their own constitution and those of others, to develop a more adequate understanding of their own legal system and of the contingency of the legal culture within which it functions. The United States Constitution has, for instance, served as a negative model of constitutional development in South Africa (and elsewhere). Judicial understandings of South Africa’s Constitution as a transformative, deeply egalitarian document which places a positive duty on the state to protect and promote fundamental rights have, in a number of instances, been articulated by drawing attention to relevant differences with the Constitution of the United States. Comparative constitutional law can, moreover, be used to challenge deeply ingrained assumptions about our own legal system, as Vicki Jackson so poignantly reminds us.3 • Third, constitutional comparativism can promote substantive reasoning and a culture of justification. The point of constitutional comparison cannot be simply to find the answers to legal questions in comparative materials, or to blindly follow foreign law. The point is, rather, to inquire whether the court can benefit from the reasoning employed by foreign courts – with due regard to similarities and differences in the text and structure of the respective constitutions, the broader legal system and culture, and the social and historical context. The emphasis should therefore be on the persuasiveness of the other court’s reasoning and a proper contextualisation of its judgment. By extension, this also requires the court to inquire into the values underlying the own constitution and the social and historical context within which it functions. • Fourth, recourse to foreign materials opens up new interpretive possibilities while foreclosing others. Comparative analysis will sometimes delegitimate certain interpretive possibilities – for instance, where there is evidence of a growing transnational consensus that a certain practice is unacceptable. At other times, it may allow judges to move beyond their initial impression that a particular interpretation is inescapable, and open up alternative interpretive possibilities.
1 H Botha ‘Comparative law and constitutional adjudication: a South African perspective’ (2007) 55 Jahrbuch des öffentlichen Rechts der Gegenwart 569. 2 S v Williams 1995 (3) SA 632; 1995 (7) BCLR 861 (CC) para 39. 3 V Jackson ‘Ambivalent resistance and comparative constitutionalism: opening up the conversation on “proportionality”, rights and federalism’ (1999) 1 University of Pennsylvania Journal of Constitutional Law 583 at 600-601.
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In South Africa, comparative constitutional law has been particularly helpful in providing constitutional interpreters with a conceptual vocabulary for the negotiation of conflicting normative and institutional commitments. Unlike under apartheid, the new constitutional order embraces plurality and institutionalizes dissent by committing itself to a variety of often conflicting ideals, such as continuity and change, democracy and rights, and equality and freedom. The Constitutional Court has found concepts, metaphors and modes of reasoning derived from foreign law helpful in mediating these tensions. Notions like indirect horizontal application, human dignity, proportionality and subsidiarity have enabled the Court to negotiate these tensions on a case by case basis, and thus to keep alive conflicting normative visions.4
2. What to compare It would be a mistake to limit the use of foreign law to a too narrow set of practices. South Africa’s experience suggests that comparative influences occur on many different levels. Sometimes they take the form of more or less direct borrowings from foreign law, while at other times they are more indirect, are reflected in the framing of the available interpretive options, or serve as negative models. Sometimes they occur at the level of legal rules, concepts or standards, and at other times they occur at a deeper cultural or cognitive level. In the latter case, what is appropriated from the foreign system are metaphors, modes of legal reasoning or assumptions about the nature, possibilities and limits of law. Sometimes the courts take their cue directly from the Constitutional Assembly by attaching significance to the fact that a particular textual formulation or constitutional model was borrowed by the drafters of the South African Constitution, and by carefully examining the interpretations given to the relevant (foreign) constitutional text. At other times, courts seize the initiative by considering the interpretation of foreign constitutional provisions that are materially different from their own. In some cases, the Constitutional Court’s appropriation of foreign and international influences in their interpretation of the interim Constitution even had a direct influence on the formulation of the final Constitution. Examples include the enhanced role of human dignity under the final Constitution and the express inclusion of a proportionality test in section 36, the general limitation clause.
A rule that foreign law should be considered only where a constitutional provision corresponds more or less directly to a foreign constitutional text would be too restrictive. Such an approach focuses too narrowly on surface phenomena (textual similarities, rules and concepts) and disregards the various contexts within which law operates. It assumes that foreign law is used as authority for a particular legal outcome, rather than as a source of different constitutional arguments and a means of broadening the constitutional imagination. It assumes too glibly that the relevant similarities and differences between legal systems can be neatly pinned down in advance, and negates the possibility that, upon a careful contextual examination of the relevant legal rules, similarities may emerge in areas where, at first, we saw only difference, and vice versa.
4 See H. Botha ‘Learning to live with plurality and dissent: the Grundgesetz in South Africa’ (2010) 58 Jahrbuch des öffentlichen Rechts der Gegenwart (forthcoming) and the literature referred to therein.
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It could be argued that the use of foreign law should be restricted to fundamental rights adjudication and should play no role in relation to the institutional aspects of constitutional law. On this view, the latter area does not display nearly the same degree of convergence as the former. Rather than involving normative questions that are mediated through an increasingly transnational constitutional vocabulary it concerns a particular institutional design, and forays into comparative law are of limited or no use. This distinction is endorsed by South Africa’s constitutional text, which expressly authorizes courts to consider foreign law in their interpretation of the Bill of Rights, but not the rest of the Constitution. However, this has not prevented the Constitutional Court from invoking foreign law in their consideration of issues like federalism,5 the separation of powers6 and the interpretation of constitutional provisions outside the Bill of Rights.7 Indeed, to the extent that foreign law is used to weigh arguments, consider alternative understandings and contextualize one’s own constitution, the difference between fundamental rights and institutional constitutional law seems to be one of degree, rather than kind.
The dialogical vision of comparative constitutional law, as Sujit Choudry labels it,8 does not demand a particularly tight fit between the constitutional provisions to be compared. It insists that we can learn from the experience in other jurisdictions, despite important textual, structural, cultural and historical differences. What is important is not a (near) perfect match between the provisions to be compared, but the ability of foreign materials to illuminate aspects of the local context which are otherwise neglected, and the way in which the relevant similarities and differences are explained. The question “what to compare” dissolves, then, into the question “how to do it”.
3. How to compare Different uses of foreign law may impose different disciplinary rules. Where foreign law is invoked to provide evidence of an evolving transnational consensus, one would expect the sample of foreign jurisdictions that are consulted to be fairly wide. Where it is argued, based on the close fit between two legal regimes, that the interpretation followed in a foreign country should be emulated in one’s own, one would expect a fairly detailed analysis of the relevant similarities and differences in the legal position pertaining in the two countries. Again, slightly different considerations may apply where foreign law is invoked to broaden the scope of interpretive options, to highlight the potentially negative consequences of a particular interpretation or approach, to recast the context within which constitutional norms are to be
5 See eg Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC) paras 80-83 (recognizing that the second chamber of Parliament, the National Council of Provinces, was modelled on Germany’s Bundesrat, and that the notion of cooperative government, as entrenched in chapter 3 of the Constitution, resembles the German notion of Bundestreue). 6 See eg Executive Council, Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA 877 (CC); 1995 (10) BCLR 1289 (CC). 7 See Matatiele Municipality v President of the RSA 2007 (1) BCLR 47 (CC) para 36. 8 S Choudry ‘Globalization in search of justification: Toward a theory of comparative constitutional interpretation’ (1999) 74 Indiana LJ 819.
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applied, or to draw attention to unique features of the own constitutional text, structure or landscape.
It should, however, be obvious that these different uses of foreign law cannot be divided into watertight compartments. For instance, in the death penalty case the Constitutional Court relied upon what it perceived to be a worldwide tendency among democratic societies to move away from capital punishment – and then went to great lengths to distinguish South Africa’s Constitution from the constitutional texts of democratic societies in which the death penalty is still imposed.9 Comparative law can never simply be about the convergence of legal systems, but lies at the dynamic intersection of similarity and difference. Areas of convergence and divergence are, moreover, not simply ‘out there’ waiting to be discovered, but need to be constructed and explained.
There are certain pitfalls that need to be avoided, regardless of the use made of foreign law in a particular case. These include: a fixation on legal rules and concepts and a neglect of legal culture and context; considering foreign legal rules and judgments in isolation and failing to situate them within a larger legal system and tradition; using foreign law as authority for a certain standpoint rather than as a basis for comparison and a source of constitutional arguments; failing to appreciate that presuppositions and prejudices deeply embedded within our own legal culture may distort our understanding of foreign legal materials; uncritically accepting the distinction between public and private law; and restricting the sample of jurisdictions to be surveyed to those which favour a particular standpoint.
9 S v Makwanyane 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
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The Constitutional Right to Dignity
Erin Daly1 Widener University School of Law United States
In recent years, there has been a veritable explosion in the number of constitutional texts explicitly recognizing the right to dignity and in constitutional court cases vindicating that right in a variety of settings. The number and range of cases in which courts enforce or refer to the right to dignity raises questions about what dignity is doing in all these cases: why does it seem useful in so many cases to litigants and judges alike, and what role is it playing in all these diverse factual situations even though another right might be more particular and equally, if not more, effective? Ultimately, these cases force us to consider what is the meaning of human dignity?
I. A jurisprudence of dignity
There are so many constitutional cases involving the right to dignity that it is impossible to count or review them all. Courts around the world have ruled on the right to dignity, although some courts – including Germany, India, Canada, South Africa, Hungary, and Israel – have been more deliberate in their development of a jurisprudence of dignity than others. But the cases defy easy categorization because they arise from such a broad range of factual settings. Moreover, there is no clear connection between the status of dignity as a textually protected right and its prominence in the country’s jurisprudence: Canada’s Charter does not mention dignity at all, India’s mentions it several times but primarily in the section on unenforceable directive principles; Hungary’s constitution mentions it as one of many rights; Israel’s evolving Basic Law emphasizes it, as does South Africa’s 1996 post-apartheid constitution which calls it a founding principle, while in Germany it is fundamental and non- derogable. Many other countries whose constitutions protect dignity have not developed jurisprudence about it. There is no clear correlation between constitutional text and caselaw.
Nonetheless, some patterns present themselves. Many of the cases from around the world fall into three broad categories. One category – conceptually the most interesting – treats dignity as a mechanism for protecting individuality. This individuation principle starts from the premise (most prominently articulated in the Universal Declaration of Human Rights) that each individual human being is unique and in that uniqueness lies dignity.
The individuation principle has varied applications. In some cases, the court will find that the state’s objectification of individuals violates their individual dignity. For instance, in a notable German case, the Federal Constitutional Court invalidated the Air Transport Security Act because, in empowering the government to shoot down a passenger plane upon a showing that the aircraft would be used against the life of others, it violated the passengers’ right to
1 Professor of Law and Dean of Faculty, Widener University School of Law.
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dignity insofar as the government would be sacrificing their lives in order to achieve another goal.2 In other instances, courts will rely on the right to dignity to protect the individual decisions a person makes, such as the choice of intimate partner and lifestyle, selection of names, religious choices, occupational opportunities, and decisions relating to reproduction. (Dignity has been used to support both the fetal right to life and the woman’s right to choose). Courts have also found that the right to protect one’s reputation rests on the right to dignity, as does the right to travel. Somewhat ironically, the individuation principle also has application in equality and affirmative action cases. The Canadian Supreme Court, for instance, has found that the purpose of constitutionally guaranteeing equality is to “prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration,”3 Through this equality jurisprudence, courts have recognized the “inherent” dignity of women, lesbians and gays, people with disabilities and others who were previously not held to enjoy the same respect in law as privileged groups. All of these cases suggest that the constitutional right to dignity requires the government to respect the individuality and individual choices of citizens as against majoritarian control.
A second category of cases protects socio-economic interests. In these cases, courts consider whether the state violates the right to dignity when it fails to provide an appropriate level of medical care, shelter, education, or other basic needs to its citizens and residents. These cases, in general, tend to posit that the right to dignity demands that the individual have the means by which to live independently. Courts in poor and developing countries, such as South Africa and India, struggle mightily to make the right to dignity meaningful even in the face of significant fiscal constraints. The Indian Supreme Court has repeatedly insisted that the right to life includes the right to live with human dignity and “all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.”4 The Court has also likened the right to life to the right to live in dignity, meaning “free from exploitation”5 or not dependent on others.
The third category into which dignity cases tend to fall concerns the right of those who are legally dependent on the state. These cases are inherently difficult because so much of the
2 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Feb. 15, 2006, 59 Neue Juristiche Wochenschrift (NJW) 751 (F.R.G). See Oliver Lepsius, Human Dignity and the Downing of Aircraft: The German Federal Constitutional Court Strikes Down a Prominent Anti-terrorism Provision I the New Air-Transport Security Act, 7 GERMAN L.J. 761, 771 n.27 (2006), available at www.germanlawjournal.com 3 Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur [2003] 2 S.C.R. 504, 55 9; 2003 SCC 54 ; 2003 S.C.R. LEXIS 57 2; [2003] S.C.J. No. 54, quoting Law v. Canada [1999] S.C.R. 497, 500. 4 Francis Coralie v. Union of India A .I.R. 1981 S.C. 746 (Bagwhati J.) 5 Id.
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meaning of dignity elsewhere is the endeavor to ensure the independence of individuals. Where individuals are dependent for their care on the state, their dignity is to that extent compromised. But courts have held that the right to human dignity nonetheless imposes some limits on what states can do to individuals within their control in terms of care, treatment, and punishment. In these cases, the state is obligated to recognize the “inherent” dignity of every person, including defendants, prisoners, suspected terrorists, and others whom states have traditionally treated as without dignity.
Thus, one of the most dramatic constitutional shifts in the last few decades is the judicial recognition of the inherent, and equal, humanity of each individual. Moreover, courts in these cases have tried to invest the concept of dignity with real content and to ensure, at least to some extent, that the values encapsulated in that right are judicially enforceable. Indeed, what is perhaps most interesting about these cases is that courts are often more emphatic than they need to be in relying on and expounding the meaning of dignity. The question is then: what work is dignity doing in all these cases?
II. The Constitutional Work of Dignity
If there is any coherence to dignity jurisprudence across the globe it may be encapsulated in the notion of autonomy – i.e. self-rule. The fundamental interest protected in these cases is the interest of the individual to control some portion of his or her life and (in the style of the US Supreme Court) destiny.6 This is obviously not an absolute right, nor a unilateral right; it must be moderated by the competing interests of other individuals and of the state. However, the dignity cases insist that, notwithstanding the fierce competition, there is some portion of one’s life over which one maintains control.7 Thus, the state can not force individuals to adopt a particular religion, or to work (or not work) in a particular industry; it can not demean prisoners to the point where they have literally nothing left, but must allow them to hope, and to live.8 And, to the extent possible, but more controversially, it must ensure that individuals have the means by which to live with some degree of independence, so that they are not absolutely controlled by the need to satisfy basic needs.
In this sense, dignity rights are different from and more fundamental than other constitutional rights. In many cases, when courts enforce the right to dignity, they are saying
6 Planned Parenthood v Casey, 505 U.S. 833, 852: “The destiny of the woman must be shaped to a large extent o n her own conception of her spiritual imperatives and her place in society.” (Joint opinion). 7 This idea might be term ed the “sovereignty” of the individual, and to that extent is com parable to the residual sovereignty that states in the American and some other federal systems retain even against the competing sovereignty of the central government. This is the notion of sovereignty that the U.S. Supreme Court has resurrected in its series of state sovereignty cases in the 1990s. 8 The right to dignity has been used in South Africa and Hungary to abolish the death penalty. See also Life Imprisonment Case, Bundesverfassungsgerict (BVerfG) [Federal Constitutional Court] June 21, 1977, 45 BverfG E 187, (F.R.G) (abolishing the punishment o f life imprisonment without the possibility of parole).
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something important not only about what dignity means (comparable to a meaningful opinion that elucidates equality or health care); they are also saying something important about what it means to be an individual (or in rare cases a community) in the particular contemporary society in which the Court sits. A case about medical care, for instance, becomes not only about what health care rights are available under the constitution at issue, but – in the hands of judges concerned about dignity – becomes a case about what care an individual – who, by definition is imbued with inherent dignity – is entitled to. Is every individual entitled to dialysis on demand? In some countries, perhaps. In others, individual dignity requires the provision of emergency treatment, and, if the country can not afford to provide treatment for chronic illness to all who need it, the government is at least required to take action to enhance the availability of health Care for all.9 Likewise, where judges tap into the right to dignity, a limit on inheritance in polygynous marriages not only violates equality rights (because it treats unequally individuals who are similarly situated for relevant purposes), but also violates the dignity of the marital partners who are disinherited.10 The cases then become cases not just about a particular right, but also about the respect that is due to individuals per se. In the relevant society, how is an individual expected to live? What kind of respect is he or she due from the state and from others? What kinds of things do individuals have a right to expect? Over what areas should individuals have control?
But the judicial question of individual autonomy – the scope of self-rule – is not to be understood in a philosophical vacuum, but in a court in a particular nation with competing economic, historical, social, and political strains. Although dignity is inherent and often “inviolable,” it can never be absolute. Even in countries where dignity is constitutionally protected, the inviolable dignity of millions of people is severely compromised by inadequate health care, food, shelter, education, and so on. But even in there, the state is subject to competing demands; it can not be expected to – and no court would insist that it – provide every individual with the means to live with the dignity of kings. Rather, the constitutional obligation is to progressively realize the right to health care or housing, to avoid disproportionate or unnecessary incursions into an individual’s dignity, meaning that the government should not excessively limit the scope of authority that one has over oneself. Thus, even though individual dignity is recognized, the scope of state authority still has salience.
Where these kinds of claims are at issue, courts around the world have taken on twin roles. First, courts identify the scope of individual autonomy – that is, they define the areas in which the individual maintains control, such as in decisions relating to intimacy, the right of a prisoner to pray, etc. Second, by enforcing these rights, courts are prohibiting states from insisting on the unwilling surrender of control in these areas; they are thereby circumscribing the areas in which states have authority to rule.
9 See Soobramoney v Minister of Health (Kwazulu-Natal) (CCT32/97) [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (27 November 1997) (From South Africa: Constitutional Court; 27 November 1997; 106 KB ). 10 Hassam v Jacobs NO and Others (CCT83/08) [20 09] ZACC 19 (15 July 2009) (From South Africa: Constitutional Court; 15 July 2009; 1 21 KB ): “The dignity of the parties to polygamous Muslim marriages is no less worthy of respect than the dignity of parties to civil marriages o r African customary marriages.” at p. 46.
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The courts in these cases, then, may be using dignity not simply as a right that may be enforced in specific circumstances as against overreaching state authority, like the right to equality or religion or housing. Rather, dignity is being used to demarcate the line between individual autonomy and state rule in contemporary society. The right to dignity denotes the area that the individual controls – ie the areas where the self rules. Where the claim of dignity fails, or the court concludes that the right to dignity does not prevail, the state (in the name of the majority of the other citizens) may impose its own rule. In these cases, the right to dignity has become the sphere in which individuals enjoy self-rule, at the limits of the law.
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Reproductive Rights in the Legal Academy: A New Role for Transnational Law
Martha F. Davis Northeastern University - School of Law United States
Bethany Withers Harvard University Law School United States
Journal of Legal Education, September 2009 Abstract: Most law school courses approach reproductive rights law from a purely domestic perspective, as an extensive survey of casebooks and course material reveals. The authors argue that a transnational perspective can enhance the teaching of sexual and reproductive health in all of the law school courses and doctrinal settings in which this topic in treated. While the topic of “Global Sexual and Reproductive Rights” can be presented in a free-standing course, transnational perspectives should also be integrated across the curriculum where sexual and reproductive rights are discussed. Expanding reproductive rights pedagogy to address transnational perspectives will aid in exposing a wide range of students to transnational material, will expand students’ preparedness to analyze such materials, and will better reflect the debates on sexual and reproductive health currently taking place outside of law school classrooms. Drawing on a range of foreign and international material, the authors provide specific suggestions for integrating such material into courses on Constitutional Law, Family Law and Bioethics.
The pages below are an excerpt from a forthcoming article by Professor Davis and Bethany Withers in the Journal of Legal Education.
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Constitutional Law
Right to Procreate and Transnational Law Beginning with Skinner, transnational material can supplement a discussion of domestic fundamental rights questions in a constitutional law course. Interestingly, Justice Douglas’s opinion in Skinner framed the case as one that “touches a sensitive and important area of human rights,” thus signaling the relevance of transnational law—if not jurisprudentially then certainly as it is suggested here, for pedagogical purposes.
Two transnational cases are particularly useful to a discussion of the liberty and equality rights that Justice Douglas identified in Skinner. First, Maria Mamerita Mestanza Chavez v. Peru stemmed from Peru’s government policy of sterilizing poor, rural women in the 1980s and 1990s. Ms. Chavez died from complications following a forced sterilization procedure. In response, several women’s rights organizations filed a petition with the Inter-American Commission on Human Rights, an arm of the Organization of American States, alleging that the government’s policy violated human rights principles. The Peruvian government entered a “friendly settlement” of the matter, but acknowledged that the harm done to Ms. Chavez violated several provisions of the American Convention on Human Rights, including the right to equality under the law (Article 24) and the right to have one’s “physical, mental and moral integrity respected.” The settlement not only addressed Ms. Chavez’s specific facts, but also obligated the Peruvian government to adopt a roster of changes to its generally-applicable law and policies.
Applied in this case, the equality prong of the American Convention serves the same analytical purpose as the equal protection clause in Skinner. However, Article 5 of the Convention seems to go beyond the strict scrutiny regime established under domestic law to recognize a right to physical integrity that encompasses a more participatory decision-making process concerning sterilization. Given these different approaches, it would be helpful to refer students to the specific text of the American Convention when using this case in a constitutional law class to illustrate the scope of the international community’s recognition of procreational rights.
A second case provides a counterpoint to both Skinner and Chavez. In Javed v. State of Haryana, the Supreme Court of India addressed a somewhat less intrusive effort to discourage childbirth. There, individuals with more than two children were barred from seeking election for certain official government positions. Examining the “menace of growing population” at some length, the court upheld this “child cap” for elective office, concluding that the paramount goal of population control overrode claims of fundamental rights. Taking into consideration other provisions protecting economic and educational interests in India’s Constitution, the court opined that “[n]one of these lofty ideals can be achieved without controlling the population.” Further, the Indian court rejected claims that the law’s classification violated principles of equal protection.
These transnational materials highlight the opposing considerations that Skinner resolved under our own constitutional jurisprudence. On the one hand, the U.S. Supreme
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Court in Skinner had to confront the notorious Buck v. Bell proposition that “[t]hree generations of imbeciles are enough” and the Supreme Court’s earlier endorsement of sterilization for supposed undesirables. Like the Court in Buck, and faced with population control issues of enormous proportions, the Indian Supreme Court found that a lesser intrusion on reproductive choice—a childbirth penalty, rather than sterilization— was constitutionally permissible. In contrast, in Chavez, the international community reiterated that forced sterilization constitutes a human rights violation. In Skinner, the sterilization to which certain criminals were subject was non-elective, but the punishment was only applied to those who had been convicted of a crime that included an element of intent. Yet as Justice Douglas’s opinion indicates, Skinner itself staked out a path of universalism as well, indicating that the U.S. Constitution’s liberty protections incorporate the understanding that “[m]arriage and procreation are fundamental to the very existence and survival of the race.”
Abortion and Transnational Law
Many of the constitutional reproductive health and rights cases excerpted in constitutional law casebooks concern abortion. Here, too, transnational references can be illuminating.
Two venerable West German abortion cases are occasionally cited in domestic constitutional texts. In 1975, the West German constitutional court was heavily influenced by the nation’s history of governmental eugenics policies when it struck down a law liberalizing access to abortion on the grounds that the fetus is constitutionally protected. The Supreme Court of a unified Germany reiterated this view in 1993, while also opining that the legislature could permit first trimester abortions “on demand” so long as the procedure was accompanied by legislatively mandated counseling. Surprisingly, less often cited in U.S. casebooks is the Canadian Supreme Court’s 1988 decision in Morgentaler v. Queen, which construed the Canadian Charter of Rights and Freedom’s language concerning “life, liberty and security of the person” to strike down a law that restricted abortion.
While these older cases remain important, more recent transnational jurisprudence is indicative of the current international trends in reproductive health and rights, and also provides a useful basis for comparison with the contemporary U.S. Supreme Court decisions. For example, in Gonzales v. Carhart, the U.S. Supreme Court upheld a restriction on the availability of certain late-term abortion procedures, i.e., intact D&X abortions. In doing so, the Court applied the Casey balancing test, which—unlike the more rigorous strict scrutiny test applied in other contexts where fundamental rights are impinged—provides that only those restrictions that cause an “undue burden” on the privacy right are impermissible. In evaluating the extent of that burden and the impact of the restriction on women, the majority in Carhart cited as a factor in its decision that:
It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns . . . that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.
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This concept of maternal regret figured in the majority’s decision to uphold the ban despite evidence that some women’s health might be adversely affected if doctors were not permitted to use the procedure.
It is interesting to contrast the U.S. Supreme Court’s approach with the 2006 decision issued by the Constitutional Court of Colombia. Unlike the Carhart case, which dealt with only a partial ban on abortion procedures, the Colombian court considered the constitutionality of a law that criminalized all abortions. In striking down the statute, the court addressed the equality of women at some length, noting the protection of reproductive rights as an aspect of the human right to health protected by the Colombian Constitution. Further, the Colombian court expressed clear limits on the legislature’s discretion over criminal matters, noting that the absolute ban on abortion violated the “fundamental right to dignity.” The court concluded that the law must permit termination of pregnancy when, among other things, the continuation of the pregnancy “presents risks to the life or health of the woman.” In short, the Carhart case bans a type of abortion regardless of the impact on women’s health, while the Colombian case privileges protection of women’s health over any objections to particular procedures, using human dignity as the centerpiece of its decision. When integrating the Colombian case into a domestic constitutional law class, it is worth mentioning that the notion of human dignity has also played a central role in recent U.S. jurisprudence, including Planned Parenthood v. Casey and Lawrence v. Texas. Reva Siegel’s recent article, “Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart,” provides excellent supplemental reading on this topic that can be used to draw these themes together.
Beyond the rulings of individual national courts, the international community's approach to abortion is set out in two recent cases: Tysiac v. Poland, a judgment of the European Court of Human Rights, and K.L. v. Peru, a decision of the United Nations Human Rights Committee. Both of these decisions are useful for purposes of discussing and analyzing U.S. law.
The Tysiac case arose from an application made against the Republic of Poland. Under Polish law, Tysiac sought a certificate for termination of her pregnancy based on the risk to her eyesight posed by her condition. The domestic law provided that an abortion should be available irrespective of the stage of pregnancy when, among other circumstances, “the pregnancy endangered the mother’s life or health.” Tysiac’s request was denied because the evaluating doctors disagreed on her prognosis and she carried the pregnancy to term. After delivery, her eyesight deteriorated badly and she lost most of her sight. When domestic remedies proved inadequate to protect her rights, Tysiac filed an application with the European Court of Human Rights.
The court concluded that the application of the Polish law in Tysiac’s case, to preclude her abortion, violated the provisions of Article 8 of the European Convention on Human Rights. The essence of that provision, the court wrote, is “to protect the individual against arbitrary interference by public authorities.” The court derived this central theme of Article 8 from the Convention’s general “right to respect for [] private . . . life . . .” After a review of the facts, the court concluded that the applicant should not be limited to after-the-fact remedies in tort law.
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Rather, she was entitled to timely compliance with the state’s “positive obligations to safeguard the applicant’s right to respect for her private life in the context of a controversy as to whether she was entitled to a therapeutic abortion.” The court suggested several procedural safeguards that might be implemented in such a situation—all of which, it observed, must be particularly sensitive to the pregnant woman’s legal position and the time constraints that nature imposes on the decision making.
In reaching this conclusion, the Tysiac Court took care to respect the limits of the Convention as providing essentially procedural protections from privacy violations. At the same time, however, the court’s approach acknowledges that such procedural refinements could fall short of protecting underlying substantive rights to privacy, including the right to abortion provided under the domestic law of Poland. Interestingly, the European Court’s decisional approach has many parallels with U.S. courts’ efforts to address the procedural and substantive aspects of our own Constitution’s due process clause. At times, the Supreme Court has used procedure as a means to bolster substantive rights, while at other times, the Court has found substantive rights in the due process clause itself.
• [discussion of K.L. omitted]
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Introduction of Judicial Review in Italy ─ Transition from Decentralized to Centralized Review (1948-1956) ─ A Successful Transplant Case Study*
Louis F. Del Duca** Pennsylvania State University United States © 2009 Louis F. Del Duca
In the aftermath of World War II, Europe searched for new regional and national institutions which would protect human rights and prevent reoccurrence of the massive tragic violations it had experienced. The Council of Europe with its innovative European Convention on Human Rights emerged at the European regional level. At the national level, individual States adopted constitutions which included guarantees of human rights, and also created special Constitutional Courts from which courts facing allegations of violations of constitutional rights could obtain binding determinations of constitutional incompatibility. Italy and Germany led many European countries in adopting a “centralized” system of judicial review vesting the power to review the constitutionality of norms or actions in a single specialized court.
The 1948 Italian Constitution contains a provision for creation of a Constitutional Court with the power of centralized judicial review.1 During a transitional period, the Italian 1948- 1956 constitutional experience implemented a diffused decentralized judicial review system which permitted judges in the ordinary courts and administrative courts to decide constitutional questions. This experience and the associated politics of initiating the work of the Italian Constitutional Court2 provide an interesting case study on the impact of transplants
* I wish to express my appreciation to Patrick Del Duca, adjunct professor of law at UCLA and partner in the law firm of Zuber & Taillieu LLP in Los Angeles and Gianluca Gentili, Dottore di Giurisprudenza, University of Florence Law School, LL.M. Penn State Dickinson School of Law and presently a Doctoral candidate in Comparative Public Law at the University of Sienna, School of Economics in Italy, for their valuable and gracious comments and assistance in the preparation of this paper.
** Edward N. Polisher Distinguished Faculty Scholar, Penn State Dickinson School of Law.
1 The previous system, under the flexible Constitution of the Statuto Albertino, did not provide for any judicial review of the constitutionality of laws.
Centralized (sometime also referred to as “concentrated”) judicial review differs from decentralized (sometimes referred to as “diffused”) judicial review). In a centralized judicial review system constitutional issues must be certified immediately to the Constitutional Court for resolution as soon as they arise in any court. The proceedings in the transmitting court are held in abeyance pending the decision of the Constitutional Court. In a decentralized system of judicial review, the court in which the constitutional issue arises renders its decision on the constitutional issue. Depending on the status of the court and the notion of stare decisis in the relevant legal system, the effects of decentralized determinations of constitutionality might be limited to the litigants at hand or have more general effect.
For a discussion of the differences between centralized and decentralized systems of judicial review, see M. Cappelletti, Judicial Review in the Contemporary World., 1971, at 45 et seq.; L. Favoreau, Constitutional Review in Europe, in L. Henkin, A.J. Rosenthal (eds.), Constitutionalism and Rights: The Influence of the United States Constitution Abroad, 1990; V.C. Jackson, M. Tushnet, Comparative Constitutional Law, 2nd, at 464 et seq.; N. Dorsen, M. Rosenfeld, A. Sajó, S. Baer, Comparative Constitutionalism. Cases and Materials, 2003, at 113 et seq.
2 Disputes between private parties are handled by the so-called “ordinary” courts in Italy and in civil law countries generally. Disputes between private parties and the State are handled by the “administrative” courts in Italy and in other civil law countries that follow the inspiration of French administrative law. For a discussion of the “ordinary” courts and “administrative” courts in Italy, see Del Duca and Del Duca, An Italian Federalism? – The States, its Institutions and National Culture as Rule of Law Guarantor, 54 Am. J. Comp. L. 799, 835 et seq. As indicated in the text, supra, Constitutional Courts with jurisdiction solely over constitutional matters developed in Europe after the Second World War, following the model of the Austrian Constitutional Court that was implemented between World Wars I and II.
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and the identification of conditions which facilitate or hinder the success of the transplant – in this instance the implementation of judicial review of the constitutionality of laws.
Articles 134-137 of the Italian Constitution, as adopted in 1948, provide the basic structure, functions and features of the Constitutional Court. Under Article 135, the Constitutional Court is composed of fifteen judges, five are appointed by the Parliament in joint session, five are appointed by the President of the Republic and five are appointed by the supreme ordinary and administrative courts (the Court of Cassation, the Council of State, and the Court of Accounts). Article 137 of the Constitution left the details of launching the Constitutional Court to subsequent “constitutional” legislation, that is legislation adopted by procedures to give the legislation the rank of the Constitution itself.
Transitional and Final Provision no. VII of the Italian Constitution specifies that:
[u]ntil such time as the Constitutional Court begins its functions, the decision on controversies indicated in article 134 shall be conducted in the forms and within the limits of the provisions already in existence before the implementation of the Constitution.3
Although the Constitutional Court was contemplated directly by the 1948 Italian Constitution, it became operative only eight years later, in 1956, after the adoption of the constitutional laws in 1948 and 1953 required for its implementation.4 Under the above quoted provisions of the Constitution, and before establishment of the Constitutional Court, Italy briefly experimented (1948-1956) with a decentralized system of judicial review, pursuant to which ordinary courts and administrative courts could refuse to apply laws they deemed unconstitutional. During this eight-year period, every ordinary and administrative court had the opportunity to interpret the new Constitution and to decline to apply laws determined to conflict with the Constitution.
In the Italian legal system, then and now, a ruling by a higher ordinary or administrative court (as distinguished from the Constitutional Court)5 does not constitute binding precedent. Each court decides according to its own interpretation of the law. Accordingly, during the transition period, decisions, even of a high court, that found legislation incompatible with the Constitution or other subsequent law were of equal value whether based on constitutional review per se or on the notion of statutory interpretation that the more recent law trumps the older law. The proponents of judicial review generally recognized that the fascist era judges would stumble on the notion of constitutional review for reasons including (i) a legal culture imbued with antipathy to any “gouvernment des juges”, (ii) possible sympathy to the legislation
3 Art.134 of the Italian Constitution so provides: “[t]he Constitutional Court shall decide controversies on the constitutional legitimacy of laws and enactments having force of law issued by the State and Regions”; […]
4 The laws that implemented Art. 137 Const. are Constitutional Law n. 1 of February 9, 1948, Constitutional Law n. 1 of March 11, 1953 and Law n. 87/ of March 11, 1953.
5 See supra note 2.
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adopted during the regime under which they had become judges, and (iii) reluctance to challenge actions of the transitional (and unelected) government that took power on the fall of the fascists. In the period following the 1948 entry into force of the Constitution, discernable willingness to defer constitutional review to the Constitutional Court as and when created existed.
Moreover, one Italian author, Bignami, suggests that the Italian ordinary courts widely ducked the issue of using the Constitution to invalidate the questionable legislation of the post- fascist government that held power in Italy prior to the implementation of elections under the 1948 Constitution (and that accordingly had no democratic legitimacy) by relying on the notion of statutory interpretation that the more recent law trumps the older law. This, Bignami suggests, was the technique preferred in lieu of overt constitutional review in order to start the process of revisiting objectionable aspects of the fascist era legislation.6 Moreover, Bignami finds leaving the constitutional questions about the legislative actions of the unelected interim government to the then imminently anticipated initiation of the Constitutional Court to be a prudent strategic choice in the perspective of the political consequences associated with any challenge to the post-fascist government.7
Bignami also considers the willingness, insofar as it existed in the lower courts in the period 1948 to 1956, of the ordinary courts’ to consider prior law, specifically decrees of the transition government, invalid on grounds of incompatibility with later law (when the later law is understood as the constitution itself) as a salutary reassertion of the judiciary’s independence from the executive, particularly at a time when no parliament existed. The political battles over control of the government in fact delayed the creation of the Constitutional Court. Bignami alludes to the initial support of the Christian Democrats for the Court when they feared a communist majority, and their subsequent waffling on the desirability of the Court as they realized that they themselves, rather than the communists, would control the government. Bignami understands the rulings of the lower courts as asserting judicial autonomy from the political issues of the other branches of government.
Constitutional review, centralized or not, was alien to the Italian legal system. The post war years through 1956 are an example of laying the foundations for successful rooting of a transplant. They illustrate the political developments and process associated with a successful transplant. The institution of the Constitutional Court as an entity for the conduct of centralized review was a clever way to overcome the limitations of training and appointment of the ordinary and administrative judges. Selected on the basis of their performance in competitive examinations and functioning under the Statuto Albertino Constitution (which was changeable at the whim of the ruling majority party under the direction of a Prime Minister
6 M. Bignami,Costituzione Flessibile, Costituzione Rigida e Controllo di Costituzionalità in Italia (1848-1956) 1997, at 165 et seq.
7 Id.,at 177 et seq.
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appointed by the King), some judges during this period were unreceptive to the innovative constitutional principles embedded in the new Italian Constitution.8
In a decision issued within six weeks of the effective date of the 1948 Constitution, the Court of Cassation declared that the bulk of the civil rights provisions of the new Constitution could not be considered self-executing or peremptory (precettive) but were merely programmatic (programmatiche) and therefore had to be implemented by the legislature, before they could be applied by a court.
In Marcianò,9 the instant case, nine men, of whom four were fugitives, challenged their convictions pursuant to Decreti Leggi Luogotenenziali no. 119 of July 27, 1944 and no. 142 of April 22, 1945 for the crime of “military collaboration with the German invader” that had led to death and serious injuries. The collaboration with which they were charged occurred prior to April 22, 1945, that is before the issuance of the Decreto Legge Luogotenenziale no. 142 that was an essential element of the formal definition of their actions as criminal. As part of the same decision, an additional man challenged his conviction of murder pursuant to Decreto Legge Luogotenenziale no. 159 of July 27, 1944 for a 1921 murder of an antifascist man of which he had been absolved in 1922, but which absolution had been disregarded for purposes of the post-war conviction on grounds of the “moral coercion imposed by fascism” at the time of the absolution. In each case, the challenge was to decrees of the unelected government that followed the collapse of the fascist state. The defense of the accused was that since the alleged actions occurred prior to the passage of the military collaboration law, the prohibition against ex post facto laws in the Italian Constitution was a bar to being convicted of the crime.10
In rejecting this defense argument, the United Criminal Chambers of the Court of Cassation considered two grounds to abstain from invalidating the convictions. Its first was to conclude that the criminal code prohibitions on retroactive definition of criminal conduct did not apply to norms of an “exceptional and temporary” nature such as the challenged measures and in fact prohibited any decriminalization of such conduct once defined as criminal. Its second was to label the new Constitutional provision prohibiting retroactive definition of criminal conduct as merely “programmatic” (programmatica) in nature, thereby serving only as guidance for legislative action, but not as susceptible of judicial application.11 The Court of Cassation accordingly showed itself unwilling to be party to exculpation of collaborators with
8 Judges of the ordinary and administrative courts were and currently still are selected on the basis of their performance in competitive examinations. For a discussion of these selection processes, see Del Duca and Del Duca, An Italian Federalism? – The States, its Institutions and National Culture as Rule of Law Guarantor, 54 Am. J. Comp. L. 799, 831 et seq.
9 Decision of the Court of Criminal Cassation, United Chambers, of February 7, 1948, in Giur. it. 1948, II, 129.
10 Article 25, clause 2 of the Italian Constitution, provides that “[n]o punishment may be inflicted except by virtue of law in force at the time the offence was committed.”
11 In Italian: “Il quesito se la Costituzione contenga, per sua natura, soltanto norme direttive va risolto negativamente. Giacché la Costituzione è un complesso di norme giuridiche che sono principalmente precettive, ma che possono pure essere soltanto direttive o programmatiche […] nel senso che pongono principi di cui il legislatore deve curare l’attuazione.”
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the then occupying German forces or of an adherent of the fascist party. It was likewise unwilling to be party to invalidation of the legislative decrees of the post-fascist government.
The Council of State is the supreme administrative court under the Italian system. In a decision also reached in 1948,12 within five months of the effective date of the 1948 Constitution, its Fifth Section had to decide whether a decree of the unelected transitional government that followed the collapse of the fascist state, violated the Constitution. The decree provided that no judicial challenge could be made against an administrative decree concerning the award by a prefect of concessions to use uncultivated agricultural land. The Council of State ruled the challenged article of the decree to be unconstitutional because it conflicted with the provision of Article 113 of the 1948 Constitution that an act of the government is “always” subject to judicial challenge. The Council of State first acknowledged the transitional provisions (discussed supra) of the new Constitution that gave it the power to assess the conformity of laws with the Constitution. It then noted the relevant provision of the Constitution concerning the right to bring judicial challenges against governmental acts to be an example of “norms already complete and perfected in all their elements” and hence to be applied by a court without the need of any further legislative enactment. So ruling, it stated that there are “undoubtedly programmatic declarations” in the Constitution, which could not as such be applied in the exercise of judicial review of the constitutionality of laws. This observation did not, however, prevent the Council of State from upholding the challenge to the constitutionality of the challenged act of the transitional government.
The restrictive interpretation of the new civil rights contained in the 1948 Constitution as merely “programmatic” in nature was rejected by the newly created Italian Constitutional Court in 1956 in its very first decision. In that case, 30 cases involving criminal prosecution of alleged violations of a statute requiring individuals to obtain permits from local authorities authorizing them to distribute leaflets, use public loudspeakers, attach posters to walls in public places etc., were consolidated and referred to the Constitutional Court for ruling on whether the statute and the criminalization of its violation violated the free speech Article 21 of the Constitution. Interestingly, the requirement of a permit was contemplated in provisions of article 113 of the Testo Unico delle Leggi sulla Pubblica Sicurezza (unified text of the laws on public safety) that had been adopted in 1931,13 while the measure providing for criminalization of the violation of the permit requirement was adopted by a legislative decree of 1947 that modified the Criminal Code. The Constitutional Court declared both the 1931 and 1947 provisions unconstitutional in light of Article 21 of the Constitution which provides:
Everyone has the right to freely express their thoughts in speech, writing, or any other form of communication.
12 Decision no. 303 of the Council of State, Section V, of May 26, 1948, Prefetto di Avellino e Cooperative Agricole “La Proletario” e “La Popolare” di Aquilonia, in Giur. it. 1948, III, 81.
13 More specifically, Art. 113 of the Testo Unico delle Leggi di Pubblica Sicurezza (TULPS), a consolidation of laws dealing with public safety issues, adopted by Royal Decree no. 773 of June 18, 1931.
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The press may not be subjected to any authorization or censorship. …
The Constitutional Court ruled that, irrespective of whether the free speech provision of the Italian Constitution is defined as programmatic (programmatica), the Constitution was violated. It stated:
The well-known distinction between precettive [peremptory] and programmatiche [programmatic] constitutional provisions … cannot be considered decisive when dealing with the constitutional legitimacy of a statute.14
So ruling, the Constitutional Court assumed the role of invalidating, with general effect, legislation from the fascist era and from the post-war government that violated provisions of the new Constitution, thereby affirming its power of judicial review.
The relationships among the lawyers and constitutional judges involved in the Constitutional Court’s first decision are of interest in understanding how the Court’s jurisprudence and Italian constitutional doctrine evolved in harmony to support the institution of judicial review of constitutionality in Italy. The lawyers involved in the case included Italy’s leading lawyers at the time, and many of them later become members of the Constitutional Court. Many of the various lawyers and judges involved in the case also became recognized as leading authors of Italian doctrinal writings on constitutional matters.15
14 In Italian: “[…] la nota distinzione fra norme precettive e norme programmatiche […] non è decisiva nei giudizi di legittimità costituzionale, potendo la illegittimità costituzionale di una legge derivare, in determinati casi, anche dalla sua non conciliabilità con norme che si dicono programmatiche, tanto più che in questa categoria sogliono essere comprese norme costituzionali di contenuto diverso: da quelle che si limitano a tracciare programmi generici di futura e incerta attuazione, perché subordinata al verificarsi di situazioni che la consentano, a norme dove il programma, se così si voglia denominarlo, ha concretezza che non può non vincolare immediatamente il legislatore, ripercuotersi sulla interpretazione della legislazione precedente e sulla perdurante efficacia di alcune parti di questa; vi sono pure norme le quali fissano principi fondamentali, che anche essi si riverberano sull’intera legislazione.” Corte Cost. Decision n. 1/1956.
15 Among them it is worth mentioning Gaetano Azzariti, Gaspare Ambrosini, Ernesto Battaglini, Piero Calamandrei, Giovanni Cassandro, Vezio Crisafulli, Massimo Severo Giannini, Costantino Mortati, and Giuliano Vassalli.
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Territorial Decentralization and a New Type of Multiparty System: A Comparative Analysis of its Consequences and Solutions
Federico de Montalvo Jääskeläinen, PhD Professor of Constitutional Law and Comparative Constitutional Law Law Faculty, Comillas University of Madrid (ICADE) Spain
1. Introduction
Territorial descentralization is a growing trend in many different European countries, such as Italy, the UK, Belgium and Spain.
This political process has started up in a different way from classic territorial descentralization (association vs. disassociation). The descentralization constitutes a way to solve the current tendencies of fragmentation of some regions (like Scotland, the Basque Country, Catalunya or the regions of the north of Italy), not a way to set up different territories with the common objective of creating a new reinforced State. To quote Loewenstein: a life- ring for the State which is in a broken process.
The idea is to keep the State together (holding together, not coming together) developing different policies giving important political powers to the regions who demand it1.
Because the descentralization tendencies of the regions are different in these States they are creating an asymmetric territorial system (an asymmetric regional or federal State). This asymmetry depends on the different tendencies of the different territories, because usually not all the territories are involved in the same descentralization spirit.
As we know asymmetry is uncommon in federal States which is usually based on symmetry (principle of equality of the territories).
This asymmetry creates a lot of problems for a descentralized State2. In any case we are going to focus our analysis on just one problem: the asymmetric descentralization provokes the emergence of regional and nationalist parties3.
2. The process of decentralization in Spain: from a centralized country to a federal model
1 The constitutional expression for British decentralization is “devolution of powers” as it is generally known. 2 In many cases the principle of equality supported by the Welfare State is incompatible with asymmetry. Asymmetric decentralized State provides different social policies and it tends to create unequal public services throughout the different regions. 3 We are going to use the word “nationalist party” referring to the regional parties with a strong broken tendencies.
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In the Spanish Constitutional System we have developed a significant process of territorial descentralization since proclamation of our Constitution of 1978.
The Constitution didn´t solve the territorial problem of our country because there wasn´t a strong enough consensus on the matter. Due to this the Constitution proposed a new territorial organization for Spain but it was only a proposal, not a concrete obligation. Our problem was the broken tendencies of just two regions (the Basque Country and Catalunya). We had two alternatives, to create an asymmetric model which satisfied the demands of these two regions, or to create a symmetric model where all the regions, independent of their tendencies, could be incorporated.
The final decision was to develop an asymmetric model which creates further descentralization for these two territories. Nevertheless now he have a symmetrical model where all the regions have been incorporated to the same model. In any case the tendencies of creating an asymmetric model continue there.
3. Territorial descentralization and emergence of regional parties
All these facts of our descentralization have created a number of regional and nationalist parties in the regions with broken tendencies. As we have develoved political institutions in the regions they have created regional parties to compete in the regional elections and these parties have increased their domain to the national elections.
Nowadays we have a double political party representation: a strong two party system of national parties (Conservative and Socialdemocratic parties) and at the same time a multiparty system of nationalist parties4.
The problem is that the two big parties never obtain a big enough majority to govern by themself and as such they always need the support of one or more nationalist parties5.
For example, in the matter of Anual Budget Act the political party in the executive branch usually needs the support of one or two nationalists parties. This means an extraordinary economic benefit for the territories where those nationalist parties come from. On the other hand the Regions without a nationalist party in the Parliament have a weak position in many important matters.
4 LINZ, J.J. y MONTERO, J.R., “The party systems of Spain: old cleavages and new challenges”, Working Paper, Fundación March, núm. 138, año 1999, p. 43, www.march.es. PÉREZ SOLA, N., “La evolución del sistema de partidos en España”, en RUIZ-RICO, G. y GAMBINO, S. (Coord.), Formas de gobierno y sistemas electorales, Tirant lo Blanch, Valencia, 1997, pp. 283 y 284. 5 AGUILERA DE PRAT, C.R. y MARTÍNEZ, R., Sistemas de gobierno, partidos y territorio, Tecnos, Madrid, 2000, p. 365.
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4. Problems of a regional multiparty system
There is a confusion in our Lower Chamber between national and territorial interests. Also there is a confusion between territorial interest and political ideology. In our parliamentary debates the confusion between ideology and interest is always present6.
Not all the multiparty system corresponds to the same characteristics. There is a double distinction:
a) An ideological multiparty system which is a consequence of different ideologies in society.
b) A territorial multiparty system which is a consequence of the descentralization and which support the different territorial interests.
We are not trying to suggest the idea that the nationalist parties don´t have a real ideology. We are trying to explain that there is an important distinction between ideology and interest. In our nationalist parties we can appreciate this difference. We have nationalist parties which support right wing ideas and others support left wing ideas. They have such different ideologies but on the contrary the have the same territorial interests.
There are two different dimensions and because of this we have to adapt our electoral system taking into account this important distinction7. The words of Lijphart about the problems for the ideological diversity that the majoritarian rule or the electoral barrier create are not applicable when we are talking about interests rather than ideology8.
5. The solution?: An electoral barrier
In Germany they had similar problems when they developed their territorial organization after WWII. Because of that and to avoid the previous parliamentarial problem that they had in the thirties, they included an electoral electoral barrier in their electoral
6 FERNÁNDEZ ALBERTOS, J., “Votar en dos dimensiones: el peso del nacionalismo y la ideología en el comportamiento electoral vasco, 1993-2001”, Revista Española de Ciencia Política, núm. 6, abril 2002, pp. 153 a 181. 7 The UK political system has had a similar problem with the “devolution of powers” to Scotland. The problem is politically known by the expression of “The West Lothian Question”. This expression refers to what happened in the British Parliament when the final decision about two important laws was based on the votes of the Scottish National Party. The interesting question was that these two laws were related to two different matters which had been devolved to the Scottish Parliament (reserved matters of Scotland). The question was as to how the Scottish could decide about English matters when the English people can´t decide these matters for Scotland. There is a report on this issue question in the House of Commons, www.parliament.uk. Belgium had a similar problem with their territorial multiparty system two years ago when they tried to set up a executive branch. It took more than six months to set up the executive branch because the different regional parties didn´t want to reach an agreement. 8 LIJPHART, A., Patterns of democracy, Yale University Press, 1999, p. 44.
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system. This barrier was created to avoid a regional mutiparty system because they realized that their descentralization process was going to provoke the emergence of many regional parties. This measure was completed with another political decision which consisted of the creation of a Federal Chamber (Upper Chamber) where the regional parties could decide about territorial interests. The Lower Chamber was going to work for the national interest.
The main characteristic of this electoral barrier is that is provokes a coalition between regional parties trying to surpass the barrier (percentage of 5 per cent). The regional political parties have realized that they can´t compete in the national elections by themselfs. They need the votes of two or more Länders to surpass the percentage. In the end this percentage “dries up” local interest in favour of national interest. The discussion will be between a national political party with a regional coalition who supports the interests of different territories.
In addition you will also need an Upper Chamber where territorial debate could be represented. Therefore the constitutional reform has to be developed in two ways: through an electoral barrier and through creation of an Upper Chamber to protect territorial interest9.
We prefer this solution instead of the inclusion of a majority electoral system10. As we can appreciate the regional parties of the UK (i.e. Scottish Nationalist Party) don’t have problems in accesing the Lower Chamber because they only compete in a small territory. The opportunities to obtain enough votes to get into Parliament in a small constituency are more achievable.
6. Conclusion
In summary, the territorial descentralization of many European countries demands not only a reformation of the different political institutions. It also demands the reformation of the electoral system with the aim to avoid a multiparty system based on the interest and not on the ideology emerging.
This new kind of descentralization creates new constitutional problems related to the appearance of different new political parties based simply on the defence of the interest of their own territories.
All of this transforms the parliamentarian discussion of ideologies into a discussion based on the interest of one or two territories. These territories are represented by the political parties which are needed for the political party in the executive branch to develop its policy.
9 The Spanish Constitutional Court has accepted the electoral barrier into our constitutional system. For the Constitutional Court it improves the principle of governance which has a main position in democracy (Rulings 16/1984, 75/1985, 72/1989 and 193/1989, www.tribunalconstitucional.es). 10 Nationalist parties refuse this political modification but they have accepted and approved different electoral barriers in their own territories to avoid multiparty system. There is a real contradiction between their position in the regional Assemblies and their position in the National Parliament.
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The electoral barrier could be a good solution for these situations where the territorial decentralization has created a regional multiparty system which coexists with a common two- party system. Above all when there is a Upper Chamber in the political system its supports the debates about territorial interest such as Germany has with the Bundesrat.
The electoral barrier could consist in a double barrier. In this double barrier the percentage would be different taking into account the number of Regions where nationalist or regional party will compete. The more regions they compiting the lower the barrier. The idea is to stimulate the coalitions between nationalist and regional parties of different regions to transform the mere territorial interest into ideology or, at least, national o multiterritorial interest.
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Teaching Comparative Constitutional Law: Methodological Challenges
Dr. Philipp Kiiver & Dr. Mariolina Eliantonio Maastricht University The Netherlands
1 Introduction
The Maastricht Law Faculty is known for stressing the value of international comparison throughout its curriculum. This equally applies to the field of constitutional law. Apart from including comparative elements in the study of domestic constitutional law, the Faculty offers courses on comparative constitutional law specifically, at both bachelor and master level. While these courses are quite popular and well-evaluated, we continue to meet a recurring challenge of finding the didactically optimal way of introducing comparative constitutional law as a subject of its own. Essentially, the two competing approaches are (1) comparison on a country- by-country basis, and (2) thematic comparison subject by subject. A related question concerns the optimal way of matching available textbooks and other literature to the chosen teaching method. In the following paragraphs, we shall outline the practical implications of the different approaches and our experiences with them, as well as our experiences with prescribing literature. In addition, we shall submit the comparative constitutional law textbook that Maastricht staff have written themselves to broader reflection.
2 International Comparison in Studies of Domestic Law
It is a relatively straightforward exercise to include comparative elements in studies of the constitutional law of a law faculty’s home system. Thus, where a course on Dutch constitutional law at a Dutch university devotes attention to the legislative process in the Netherlands, it may devote attention to the legislative process of other countries as well. Apart from the other benefits of engaging in comparative constitutional law, the exercise helps students to better understand and appreciate their own system. For example, an aspect of the law that is tightly regulated in their system might in other systems be mentioned implicitly at best; conversely, international comparison may reveal what their own constitution does not say on a particular subject. A practical example is, in the context of the legislative process, the possibility for one chamber of parliament to overrule the other, and the right for a chamber to propose amendments to bills. In the Netherlands (as in the US), both chambers must agree in order for a bill to become law; yet that is not the case in all systems. Meanwhile, the Dutch Constitution (and the French one even more so) regulates precisely who may propose amendments to bills and when; other constitutions (including the US Constitution) mention this only in passing. As a matter of didactics, the logical consequence in this setting is that comparison takes place subject-by-subject, not country-by-country. After all, one starts out with one’s own constitutional law and takes a look across the border for each area discussed, usually to look at systems which feature different solutions. To stay with the example of the legislative process, the Dutch system might be compared with a system where one chamber of parliament may, at least usually, overrule the other (such as the UK, Germany or France).
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3 Comparative Constitutional Law as a Separate Subject
The deeper methodological challenge arises when comparative constitutional law is introduced as a subject on its own. The subject is then to a large extent divorced from the domestic background. Practically, this means that for example exchange students may easily participate in the course along with nationals of the faculty’s home country, and gain knowledge and insights that are of universal value. In addition, comparative constitutional law as a separate subject can be used to teach undergraduate students, irrespective of their nationality, in a broader curriculum. Maastricht’s European Law School program teaches European, international and comparative law in English from the very first day, already at bachelor level. The program is designed to satisfy the labor market’s increasing need for lawyers who are used to think and work in an international, cross-border setting. Whereas a traditional curriculum might include comparative elements in the study of domestic law, comparative constitutional law as a separate subject requires course planners to make a fundamental choice. Essentially, and notwithstanding hybrid solutions, the choice is between a thematic and a country-by- country approach. In a country-by-country approach, selected jurisdictions are covered one by one, and the same range of themes is discussed for each of them. Gradually, and with each new system discussed, students learn to distil differences and similarities from the sequence of systems. A thematic approach, meanwhile, takes subject-areas as a starting point (e.g., lawmaking, government-parliament relations, and human rights) and considers each selected area in a number of selected jurisdictions.
4 Advantages and Drawbacks
The greatest advantage of a thematic approach is that it allows for a discussion of aspects of constitutional law in greater depth. Since the object of comparison is defined and delimited from the outset, students can concentrate on the relevant part of foreign law only. The drawback, or rather the precondition, however, is that students must have a basic understanding of foreign constitutional systems to begin with. If they do not have such an overview, they risk considering aspects of law in isolation from their immediate context and thus fail to fully understand the relevant aspects themselves. To return to the above example of the legislative process, the possibility for the National Assembly to override the Senate in France cannot be understood without being aware of the historical foundations and institutional design of the French Constitution: national or popular sovereignty; the history of French unicameralism, bicameralism and, in the late 18th century, a brief period of tricameralism in France; the election process and rationale of the Senate; the government’s dominant role in lawmaking, etc. This means that a thematic approach to comparative constitutional law as a separate subject is by definition more advanced, because it presupposes at least basic familiarity with the individual systems discussed. A country-by-country comparison, meanwhile, can be introduced much more easily. A student will be able to follow such a course if he or she has a sufficient understanding of his or her own system, and learn about other systems in due course. The drawback here is that, depending on the time available, comparative insights emerge only gradually and there might not be enough time to actually
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weave the systems together at the end. The risk is then that, during exams, students answer comparative questions in a country-by country manner, which of course misses the point of comparative law. After all, the main aim is not to become an expert on individual foreign systems, but to understand commonalities and differences across systems. The Maastricht Law Faculty has made the strategic choice of teaching comparative constitutional law at bachelor level on a country-by-country basis, and to apply a thematic approach to comparative constitutional law courses at master level. Of course these courses are not necessarily followed by the same students: bachelor graduates might opt for different courses or another university for their master; master programs attract students from other universities. Generally, however, this division is well received. Another and perhaps more pressing question is what type of textbook to prescribe for each approach.
5 Choice of Literature
The quality of available literature greatly affects the quality of a course. Typically, textbooks on (comparative) constitutional law largely reflect the didactical divide between thematic and country-by-country approaches. Tim Koopmans’ Courts and Political Institutions (Cambridge University Press 2003) is an ideal example of a thematic textbook. It discusses the role of the judiciary as opposed to the government and the legislature in different constitutional systems. The style is erudite and, one might say, essayistic: it has a coherent narrative and takes the reader to a journey across diverse systems. It is ideal for a course which takes a thematic approach. Yet again, it has the same drawback as the course for which it is suited: it presupposes prior knowledge and is therefore appropriate for a relatively advanced level. It could be prescribed at the end of a country-by-country course, or in a course which lists a country-by-country course as a prerequisite. The same holds true for other thematic publications on specific areas of constitutional law: in the case of federalism, for example, Michael Burgess’ Comparative Federalism (Routledge 2006) is a volume comprising chapters on issues rather than individual countries. At the opposite end of the scale we may find edited volumes, such as Constitutional Law of 15 EU Member States edited by Lucas Prakke and Constantijn Kortmann (Kluwer 2004) or, again on the area of comparative federalism, A Global Dialogue on Federalism edited by John Kincaid and Alan Tarr (McGill-Queen’s 2005). Such volumes typically contain country chapters, each chapter devoted to one jurisdiction. The advantage of this format is that the individual chapters can be prescribed one by one in a country-by country course. The drawback is that the value for comparative studies proper depends on the extent to which the editors have been able to weave the individual chapters together. Some edited volumes contain rather elaborate introductory and concluding chapters by the editors themselves, and succeed in committing the authors to a common style, chapter structure and choice of topics; other volumes are rather loose collections of heterogeneous essays. A hybrid model has been adopted by Aalt Willem Heringa and Philipp Kiiver in their volume Constitutions Compared - An Introduction to Comparative Constitutional Law (Intersentia, 2nd ed. 2009). Here each chapter is devoted to a particular aspect of constitutional law (federalism and decentralization, election systems, the legislative process, government- parliament relations, the role of judges). Each chapter starts out with an elaborate comparative overview, but is then followed by more detailed country chapters on that specific aspect.
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Country chapters cover the US, Germany, the UK, France and the Netherlands, which in their diversity help illustrate broader concepts of constitutional law. The book’s format is in a way similar to the American casebook Comparative Constitutional Law by Vicki Jackson and Mark Tushnet (Foundation Press, 2nd ed. 2003), except that Constitutions Compared is a relatively slim volume designed to provide an accessible overview at a beginners’ level. The format is user-friendly, especially for thematic approaches because it allows students to consider the details of individual systems as an illustration of the comparative overviews. In pure country-by country courses, however, students would have to read a cross-section of the book (e.g., the American sub-chapter in each thematic main chapter). Alternatively, they might consider first reading the entire book, from the first page to the last, and then return to the individual chapters as they are discussed in class. While this would be feasible in the case of Constitutions Compared, it would be less so (and is not meant to be done) in the case of Comparative Constitutional Law.
6 Points for Discussion
We are curious to see how other faculties approach the choices that have to be made when teaching comparative constitutional law. In which order are systems or themes discussed? How is cross-country comparison combined with country-by-country studies? Is comparison taught as a separate subject at all? Which literature is being prescribed, and how is it made to fit the didactical approach in the course itself? We are certain that exchange of ideas will help us all to meet the challenges of teaching comparative law, and to keep improving the quality of our curriculum to the benefit of students and teachers alike.
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Intermittent Comparative Constitutional Law
Patrick O. Gudridge University of Miami School of Law United States
Is it possible to describe in some useful way a version of comparative constitutional law that expresses itself only intermittently, but also across wide swathes of space and time, but which, when expressed (often, anyway) appears to possess considerable importance?
A.
Oedipus at Colonus, written by Sophocles shortly before his death in 406-05 B.C., and first performed in Athens in 401 B.C., is – among many other things – a complex meditation on politics and protection. Blind, aged, and disgraced, Oedipus comes to Colonus, on the outskirts of Athens, seeking a place to die. Initially rejected by local government, Oedipus is welcomed by Theseus, the Athenian king. Creon, the current king of Thebes (and brother of Jocasta, mother and wife of Oedipus) appears and attempts to take Oedipus back to Thebes so he might die and be buried there (if not literally within the city, at least nearby). Creon captures Antigone and Ismene, the daughters (also sisters) of Oedipus, and attempts to seize Oedipus himself. Theseus rescues Antigone and Ismene, and drives off Creon. Polynices, the son (brother) of Oedipus arrives, seeking the support of Oedipus for Polynices’ plan to attack Thebes (Polynices is in exile in Argos) and drive off or kill Eteocles (his younger brother) and reclaim the Theban throne. After cursing Polynices, Oedipus dies happily in the midst of a spectacular thunderstorm.
Why would it be important to Theseus and Creon where Oedipus died? Or rather, why would Athenian theater-goers, who knew Oedipus and his family as figures associated with an earlier, very different (pre-modern, we would say) period in Greek history, think that the question of where Oedipus died was an important matter for government officials to decide then, and still (years later) an important matter for them? The answer, at one level, is this: The city within whose jurisdiction Oedipus would die and lie buried would be protected from its enemies. This conclusion, it seemed, followed from long-standing Greek religious beliefs and the significance of “heroic” individuals like Oedipus (and also Theseus, another stock figure) within the religious scheme. Did Athenian theater-goers in 401 B.C. uncritically accept old religious thinking? It may be more helpful to note a second context within which the tragedy played out. Tragedy was, as Charles Nagy has named it, “Athenian state theater.” The plays were performed at an annual festival at a huge open-air theater near the hill where participants in Athenian democracy gathered to legislate, and near the area where – from among the population of those participants – juries were selected to resolve disputes and bring to bear Athenian law. The audience at the festival consisted (once again) of the participants in democratic legislative and adjudicative processes. Tragedy, it is easy to think, was a medium of political education, a way to underscore and explore fundamental questions or commitments
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implicated in democratic decisions or processes. Tragedy, we might suppose, served a purpose something like constitutional law.
Oedipus at Colonus, it becomes evident, poses important constitutional questions. Oedipus offers Athens protection – a significant public good. The democratic processes of the Colonus local government (also the democratic processes of Athens at the time of the play’s performance) are unable to come to a conclusion about whether or not to welcome Oedipus, to offer him protection in turn. He is too scandalous, his life too horrible for public opinion to ignore. It is only Theseus, as king of Athens, who is able to focus on public good, act decisively, and personally commit himself (and therefore Athens) to securing Oedipus and supporting his plan to be buried – in unusual fashion contrary to ordinary custom – at Colonus. But the virtues of persons possessed of decisive authority are not left unchallenged either. Creon too is a king, equally committed to Theban public good. He would return Oedipus to the vicinity of Thebes. But he proceeds counterproductively, dwelling on the Oedipal scandal, seeking to shame and diminish Oedipus in order to secure his surrender, asserting Theban prerogative within Athenian jurisdiction, forcefully capturing Oedipus’s daughters, seeking to take Oedipus himself. Creon, it seems, is unrestrained, willing to speak falsely, to exploit emotions, to deploy violence unpredictably. In all this, interestingly, he is also cousin to Oedipus, overly insistent that he was not responsible for his infamous acts, verbally violent in his response to Polynices, caught always in a confusion of roles, not only within family life, but as between family and public obligations. Polynices and Antigone show the same confusion.
Sophocles stages a meditation on the question of whether personal feeling – strongest within family dynamics, but infusing also public opinion at large and individual reactions in complex circumstances – poses enough public danger to warrant reconsideration of institutional arrangements (individual, not democratic authority). This was already an old question (it is enough to recall the century-old (or so) Cleisthenic reforms structuring Athenian democracy.1) If Oedipus at Colonus put the issue especially pressingly, it did so because Sophocles associated public processes with protection not only of Athens as a whole, but in service of that end protection of individuals. Oedipus – this is, of course, the great achievement of the play – becomes a representative figure notwithstanding his uniqueness, his scandal, his irascibility, all the conflicts he brings with him: as eligible therefore as any citizen to seek government attention and care.2 Because Theseus (and thus Athens) responds to his requests, Oedipus realizes (however mysteriously) the opportunity to contribute to public good, in the end reversing the course of his disastrous life.
1 [cites] 2 The question of whether Theseus makes Oedipus a citizen of Athens, or instead accords him a kind of resident alien status, is a matter of scholarly controversy. [cites]
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B.
Edward Bates – Abraham Lincoln’s Attorney General – issued an opinion on November 29, 1862, addressing “the question whether or not colored men can be citizens of the United States.”3 Dred Scott notwithstanding,4 Bates responded affirmatively:
In my opinion, the Constitution uses the word citizen only to express the political quality of the individual in his relations to the nation; to declare that he is a member of the body politic, and bound to it by the reciprocal obligation of allegiance on the one side and protection on the other. And I have no knowledge of any other kind of political citizenship, higher or lower, statal or national, or of any other sense in which the word has been used in the Constitution, or can be used properly in the laws of the United States. The phrase, “a citizen of the United States,” without addition or qualification, means neither more nor less than a member of the nation. And all such are, politically and legally, equal – the child in the cradle and its father in the Senate, are equally citizens of the United States. And it needs no argument to prove that every citizen of a State is necessarily a citizen of the United States; and to me it is equally clear that every citizen of the United States is a citizen of the particular State in which he is domiciled.5
Contemporaries noted how readily the Bates characterization coexisted with a conservative account of the concomitant rights of citizens, excluding in Bates’s own account, for example, the right to vote.6 In this regard, his analysis obviously alluded to the cautious argument of Montgomery Blair, representing Dred Scott before the Supreme Court.7 Thomas Cooley depicted Bates’s understanding of citizenship as implicit in the Fourteenth Amendment,8 and (foreshadowing the Slaughterhouse Cases9) identified a wide range of individual rights as pretty much artifacts of state law rather than directly constitutional
3 Citizenship, 10 Ops. Atty. Gen. 382, 382 (1862)(Bates, A.J.)(emphasis in original). The question had been put by Secretary of the Treasury Chase, ostensibly to determine whether African Americans might captain ships required by law to be commanded by American citizens. 4 [cite] 5 Citizenship, supra, 10 Ops. Atty. Gen. at 388. 6 See EARL M. MALTZ, CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS, 1863-1869, pp.7-8 (1990); ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN 290-93 (1970). 7 “The qualifications required for electors, representatives, jurors, witnesses, are, as they purport to be, tests of fitness for the several duties required, not tests of citizenship. Property, age, sex, religious belief, or the want of it, and a variety of circumstances, besides color, determine these qualifications in this country and in England without affecting the question of citizenship. … [T]he essence of citizenship is the right of protection of life and liberty, to acquire and enjoy property, and equal taxation.” Montgomery Blair, Brief for Plaintiff in Error, Scott v. Sandford, U.S. Supreme Court, October Term, 1856, pp. 6-7, reprinted in 3 PHILIP B. KURLAND & GERHARD CASPER, LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES: CONSTITUTIONAL LAW 184-85 (1978). 8 "The word citizen is employed in the law in different senses under different circumstances. As generally employed, however, it may be said to mean, a person owing allegiance to the government, and entitled to protection from it. Such, doubtless, is the meaning of the word as here used.” 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 654 (4th ed. 1873)(notes and additions by Thomas M. Cooley) 9 [cite]
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specifications of the meaning of citizenship as such.10 It is important, however, to note that there was a radical potential also implicit in the Bates discussion. Given allegiance, he supposes, protection becomes an obligation. The first sentence of section 1 of the Fourteenth Amendment, we can readily see, itself resolves the question of allegiance, itself identifying citizens of the United States and the states. The second sentence just as obviously itself imposes – constitutionalizes – the obligation of protection and in the process fixes the criterion determining whether states meet that obligation (“equal protection of the laws”).11 John Mercer Langston, in his well-known Oberlin lecture in 1874, praised Bates as “bold and sagacious.” “These propositions have all passed, through the 14th amendment, into the Constitution of the United States, and are sustained by a wise and well-defined public judgment.” “With freedom decreed by law, citizenship sanctioned and sustained thereby, the duty of allegiance on the one part and the right of protection on the other recognized and enforced, even if considerations of public necessity had not intervened, the gift of the ballot to the colored American could not have been long delayed.” “[I]n the progress of legal development in our country, consequent upon the triumph of the abolition movement, its coming was inevitable.”12 Langston, we know, was too optimistic. A year later, in United States v. Cruikshank – overturning federal prosecutions in the aftermath of the Colfax massacre – Chief Justice Waite both recognized the Bates reciprocal and effectively read it out of the Constitution as an independent proposition. “The duty of a government to afford protection is limited always by the power it possesses for that purpose.”13 Chief Justice Rehnquist and his followers – DeShaney and Morrison (and later Castle Rock) – stand in the wings: We readily recognize Waite in Cruikshank as introducing us to our own contemporary Supreme Court.
C.
The idea that government owes individuals a duty of protection figures in American constitutional thought well before the Bates opinion and the adoption of the Fourteenth Amendment. In his instantly famous bank veto message, Andrew Jackson wrote: “In the full enjoyment of the gifts of Heaven and the fruits of superior industry, economy, and virtue, every man is equally entitled to protection by law….”14 Thomas Jefferson, glossing the Declaration of Independence, precisely invoked the reciprocal relationship of allegiance and protection.15
10 See 2 JOSEPH STORY, supra, at 656, 658-59. 11 Both steps in this process are explicit insofar as state governments are concerned. The specification of United States citizenship also imposes a constitutional duty of protection on the United States government (within the terms of this logic) arguably acknowledged in the Fourteenth Amendment recognition of the privileges or immunities of national citizenship. [discuss Amar] 12 John Mercer Langston, “Equality Before the Law” (May 17, 1874), in James Daley (editor), Great Speeches by African Americans 48-50 (2006). 13 United States v. Cruikshank, 92 U.S. 542, 549 (1875). 14 [cite] 15 That as to the king, we had been bound to him by allegiance, but that this bond was now dissolved by his assent to the late act of parliament, by which he declares us out of his protection, and by his levying war on us, a fact which had long ago proved us out of his
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There is more, however. The echo of Thomas Hobbes is plain: Hobbes insisted that his Leviathan was simply an extended meditation on “the mutuall Relation between Protection and Obedience.”16 Behind Hobbes stands Bacon:
[A] government uses its power for maintaining and enhancing the good of the people, and if this condition is violated, the people may rightly deprive the government of the power they have given it, and take it upon themselves. Nor is any law of any particular government as fundamental as that universal law of all governments that commands that the well-being of the people be protected as the greatest and most ancient right, and that all other laws incline to this one.17
Also Coke in Calvin’s Case:
But between the Sovereign and the subject there is without comparison a higher and greater connexion: for as the subject owed to the King his true and faithful ligeance and obedience, so the Sovereign is to govern and protect his subjects, regere et protegere subditos: so as between the Sovereign and subject there is duplex et reciprocum ligamen; quia sicut subditus regi tenetur ad obededietiam, ita rex subdito tenetur ad protectionem: merito igitur ligeantia dictur a ligando, quia continet in se duplex ligamen.18
Coke, Bacon, and Hobbes are relative late-comers, however. More or less similar thinking recurs – scattered across centuries. This is the text, for example, of a seventh century Antrusian fidelity oath:
It is right that those who offer to us unbroken fidelity should be protected by our aid. And since such and such a faithful one of ours, by the favor of God, coming here in our palace with his arms, has seen fit to swear trust and fidelity to us in our hand, therefore we decree and command by the present precept that for the future such and such above mentioned be counted with the number of antrustions. And if anyone perchance should presume to kill him, let him know that he will be judged guilty of his wergild of 600 shillings.19
protection; it being a certain position in law that allegiance and protection are reciprocal, the one ceasing when the other is withdrawn.
Thomas Jefferson, “Notes of Proceedings in the Continental Congress,” [June 7-Aug. 1, 1776], in 1 JULIAN P. BOYD ET AL., EDS., THE PAPERS OF THOMAS JEFFERSON 311 (1950)[ 16 THOMAS HOBBES, LEVIATHAN 560 (1651)(Barnes & Noble ed. 2004). See QUENTIN SKINNER, Hobbes on the Proper Signification of Liberty, in 3 VISIONS OF POLITICS: HOBBES AND CIVIL SOCIETy 209-37 (2002); NOEL MALCOM, The Title Page of Leviathan, Seen in a Curious Perspective, in ASPECTS OF HOBBES 200-34 (2002). 17 Francis Bacon, “Aphorismi” (Aphorism 16) (manuscript) (1614?), quoted in DANIEL R. COQUILLETTE, FRANCIS BACON 242 (1992). 18 Calvin’s Case, 7 Co. Rep. 1a (1608), reprinted in 77 Eng. Rep. 377, 382 (King’s Bench) (1907). 19 E. P. Cheyney, trans, University of Pennsylvania. Dept. of History:Translations and Reprints from the Original Sources of European history, published for the Dept. of History of the University of Pennsylvania., Philadelphia, University of Pennsylvania Press [1898]. Vol IV, No: 3, 3-5.
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D.
Scattered: I mean to call attention to an intermittent phenomenon, a sequence of manifestations in very different places and times, manifestations of what appears to be – at each appearance – a commonplace or cliché which is – at each appearance – nonetheless seemingly put to important use.
Francis Bacon offers us wonderful water imagery:
There is little doubt, meanwhile, but that there are certain fountains of natural equity from which spring and flow out the infinite variety of laws which individual legal systems have chosen from themselves. And as veins of water acquire diverse flavors and qualities according to the nature of the soil through which they flow and percolate, just so in these legal systems natural equity is tinged and stained by the accidental forms of clrcumstances, according to the nature and site of territories, the disposition of peoples, and the nature of commonwealths. It is worthwhile to open and draw out the purer fountains of equity, for from them all amendment of laws in any kingdom or commonwealth must be sought.20
Bacon, it seems, begs the crucial question: Is it simply a matter of choice, or perhaps jurisprudential capacity, that causes (say) Hobbes or Bates “to open and draw out the purer fountains of equity”? Or is there something in particular circumstances – say, civil war – that forces to the surface (as it were) the ideas that Bacon would associate with “natural equity”? Water imagery requires plate tectonics?
Explaining the curiously bilingual form of his Maximes, however, Bacon suggests a second model (one which also accounts for Coke’s similar presentation in Calvin’s Case):
[I] know very well it would have been more plausible and more current, if the rules with the expositions of them had been set down either in Latin or English, that the harshness of the language might not have disgraced the matter, and that civilians, statesmen, scholars, and other sensible men might not have been barred from them; yet I have forsaken that grace and ornament of them, and only taken this course: the rules themselves I have put in Latin (not purified further than the propriety of the terms of law would permit; but Latin); which language I chose, as the briefest to contrive the rules compendiously, the aptest for memory, and of the greatest authority and majesty to be vouched and alleged in argument: and for the exposition and distinctions, I have retained the peculiar language of the law, because it should not be singular among the books of the same science, and because it is most familiar to the students and professors thereof, and besides that it is most significant to express conceits of
20 I take this quotation from COQUILLETTE, supra, at page 239.
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law; and to conclude, it is a language wherein a man shall not be enticed to hunt after words but matter.21
The reciprocal relationship of allegiance and protection is not part of “the peculiar language” of constitutional law per se. At bottom that was Chief Justice Waite’s point in Cruikshank. But it is, Bacon thought, the “universal law of all governments,” and therefore a “rule” to be stated in the form of a maxim, to be stated both briefly and authoritatively.22 Maxims – the juxtaposition of Latin and English (really Law French) confirms this – are simultaneously outside and inside the “language of the law” as it immediately presents itself.
Is it possible to account for the appearance of maxims like the allegiance/protection formula not simply as occasional phenomena within the legal materials of any one particular jurisdiction (say, the United States), but instead as integral (even if also still occasional) to the construction of the materials themselves? If so, grounds emerge for criticizing Waite, for returning to the arguments of Bate, Cooley, and Langston – and perhaps for confronting (differently, now) Chief Justice Rehnquist and company.
Consider this model:
Constitutions are charged with a distinctive task. Whether individually or in the aggregate, other legal instruments (and thus the processes and norms that they posit) may be specific or general, interconnected sets of propositions or potentially inconsistent lists, decisive or highly qualified or utterly ambiguous. Constitutions might reveal combinations of these attributes as well. But if they are to succeed to any important extent in limiting variation in the content of other legal instruments, if constitutions are supposed to stabilize to some degree the rule of law, their form must somehow follow function. On this assumption, it may not be enough to define (within or alongside the constitution as such) institutional arrangements charging a particular government body—for example, a court—with routine responsibility for interpreting and applying constitutional terms to validate or invalidate and thus constrain the reach of other legal instruments. If the exercise of this responsibility is not entirely ad hoc, and thus relocate rather than address the underlying difficulty, interpreters must draw upon some means of stabilization deployed within their own efforts—organizing their own efforts and, as a result, organizing the efforts of other legal actors, even if only dialectically. There may be resources available that are extrinsic to the constitution as such that incorporate strong markers of orthodoxy and unorthodoxy—religious teachings, perhaps. Alternatively, interpreters themselves might formulate constitutional propositions in terms that restate constitutional language, but also figure as something very much like maxims, as seeming universals, as independent recurring elements within constitutional analysis — formulations therefore akin to index terms, introducing some measure of stability by organizing argument.23
21 FRANCIS BACON, MAXIMES (1597), quoted in COQUILLETTE, supra at page 36. 22 On the idea of maxims as Bacon uses it, see the deep and provocative discussion in COQUILLETTE, supra, at 38-46. 23.The point of departure here, obviously, is Charles Fried’s idea of “doctrine.” See CHARLES FRIED, SAYING WHAT THE LAW IS 6–10 (2004).
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The Renaissance of Comparative Constitutionalism
A. E. Dick Howard White Burkett Miller Professor of Law and Public Affairs University of Virginia United States
Comparative constitutional law is as least as old as Aristotle. Eager to explore the best forms of government and the conditions of the good life, Aristotle studied the constitutions of 158 Greek cities and tribes, although only one fragment, his study of Athens’ Constitution, survives. Herodotus, wishing to assess Greek ethics and politics, traveled throughout the known world, recording the customs and values of Persia, Egypt, and elsewhere.
Down through the centuries, comparisons have engaged many of the best minds, Montesquieu being one obvious example. At the dawn of the age of modern constitutions, the American founders probed the lessons to be drawn from antiquity and from more recent practice. James Madison, tutored at Princeton by John Witherspoon, imbibed the teaching of the Scottish Enlightenment. On the eve of the Philadelphia convention, Madison read deeply into the experience of ancient and modern confederacies, the better to underpin his Virginia Plan, which became the basis for the convention's deliberations.
Across the Atlantic, French intellectuals and reformers were fascinated by the unfolding American experience. George Mason's Declaration of Rights for Virginia (1776) directly influenced France's Declaration of Rights of Man and the Citizen. After the Virginia legislature enacted Thomas Jefferson's Bill for Religious Freedom into law, Jefferson, then in Paris, saw it included in Dėmeunier’s Encyclopedia. When the National Assembly debated France's first Constitution, competing factions used American state constitutions as exemplars. The more moderate faction pointed to the Massachusetts Constitution of 1780, with its checks and balances, while the more radical faction invoked Pennsylvania's 1776 Constitution, emphasizing popular control of government (the radical faction carried the day, looking to the National Assembly to reflect a Rousseau-like general will).
The ensuing years have seen a lively international traffic in constitutional ideas. When the revolutions of 1848 broke out in Europe, the delegates who gathered at the Paulskirche in Frankfort showed their intimate knowledge of American federalism and judicial review as they shaped a constitution for Germany. Although their draft, opposed by Germany's conservative powers, was ultimately not adopted, it remained an important feature of German constitutional culture and ultimately influenced today's German Basic Law.
This constitutional traffic has taken many forms. Sometimes revolutionaries look abroad for examples, as in the revolutions of 1848. Other times a departing colonial power leaves
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behind a legal and constitutional legacy, as when Great Britain bequeathed the common law and constitutions modeled after Westminster in its former colonies in Africa (these constitutions proved short-lived in those countries where one-party rule or autocrats took control). Yet other transfers of constitutional ideas have followed military defeat, as when MacArthur's military government largely wrote the constitution which remains in force in Japan today.
In light of this transnational activity, one would expect academic interest to follow -- that comparative constitutionalism would flourish in the classrooms of American law schools and that American law professors would turn their pens to comparative constitutional law topics. Thinking back to my days as a law student, I cannot recall my constitutional law professor's having referred to another country's constitution (I hasten to add that his journey through American constitutionalism was rich and rewarding). International law was taught at the University of Virginia Law School, of course, but I doubt that any member of the faculty entertained the notion of teaching comparative constitutional law.
In 1884 William W. Crane and Bernard Moses published Politics: Comparative Constitutional Law. These authors, influenced perhaps by Aristotle, took an organic approach to their subject, seeing a constitution as the expression of national will. When, in 1890, John W. Burgess published his Political Science and Constitutional Law, he admitted the novelty of his study -- drawing on the teachings of the natural sciences to undertake a comparative study of constitutions. In the scholarship of that era, the emerging study of comparative constitutional law was simply an extension of comparative politics.
In the years since World War II, comparative constitutional law has come into its own, both in the journals and in the classroom. In an informal survey of 50 of the top American law schools, I find at least 40 to have a course in comparative constitutional law, comparative constitutionalism, or the like. There are major textbooks and casebooks by such respected scholars as Mark Tushnet and Vicki Jackson.
What has spurred this growth of interest? A number of factors are in play. To begin with, since World War II, the sheer number of countries has vastly increased, especially with decolonization. Being a sovereign nation calls, almost reflexively, for a constitution, as much as it does for a flag and a national anthem. There are fewer than a half dozen countries which do not have written constitutions, the United Kingdom being the best known example.
Having a constitution does not mean that a country has constitutionalism in the sense of having a liberal constitutional democracy. The Soviet Union's Constitution of 1936 glowed with promises to its people, but everyone knew that the document was a Potemkin village, its provisions meaning whatever the Party chose for them to mean. The spread of democracy has brought, in general, more authentic constitutions. Examples include post-Franco Spain's Constitution of 1978, the constitutions adopted in Central and Eastern Europe after the collapse of communism in 1989, and the charter drafted in South Africa after apartheid's demise.
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The drafting of such constitutions has brought a greater diversity of constitutional arrangements. No longer does one study just the constitutions of the Anglo-American and Western European world. Countries like India and South Africa, while influenced by western ideas, also draw upon their own distinctive historical and cultural traditions. Moreover, the advent of democracy in a country does not necessarily bring liberal democracy; elections can be a parochializing exercise, as commonly happens in the former Yugoslavia.
The years since World War II have brought a heightened interest in rights -- how they are defined, how they are enforced. Hoping not to see the horrors and ravages of the Second World War era repeated, international leaders created the United Nations. The adoption of such documents as the Universal Declaration of Human Rights, UN covenants (such as that on civil and political rights), and regional treaties such as the European Convention on Human Rights have had a profound influence on the drafting of bills of rights in national constitutions. The debate in international law circles over the meaning and reach of human rights -- are they universal, or are they contingent upon a country's culture and traditions -- has inevitably influenced how drafters of constitutions think about rights.
The earliest bills of rights, such as those of the first American state constitutions and the Federal Bill of Rights (1791), proclaimed negative rights -- rights against the state. Developments in the 20th century saw the rise of positive rights -- claims of entitlement, such as education, jobs, and other aspects of human welfare, sometimes called "second generation" rights. Early examples were the Mexican Constitution of 1917 and Germany's Weimar Constitution of 1919. In constitutions drafted since World War II, it has been a commonplace to include positive rights.
The spread of federalism or other arrangements for measuring central and local competence has also fueled comparisons. Federalism as it is known in the United States was shaped in the compromises struck at Philadelphia, but federalism and its cousins have proved remarkably popular in other countries. The arrangements go by many names -- federalism, devolution, and subsidiary among them -- but some means of accommodating the claims for central control with the centrifugal forces of regionalism, nationality, ethnicity, religion, or other cultural ties has been one of the central concerns of constitution-makers in many countries. Through such means, Spain attempts to placate Catalonia and the Basque country. Even the United Kingdom, three centuries after the Act of Union, has Scottish devolution (although the UK still has no written constitution, the enactment of the Human Rights Bill of 1998, the creation of a supreme court, and other measures may be bringing it closer to the day of having such a document).
Finally, among the factors fueling an interest in comparative constitutionalism, one must count the spread of judicial review. The importance of Marbury v. Madison is not limited to the United States. While John Marshall had to gloss the Supremacy Clause to announce the Supreme Court's power to strike down an act of Congress as being unconstitutional, such a power in a country's high court is commonly spelled out in that country's constitution. The
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advent of constitutional courts has been especially important. First devised by Hans Kelsen for Austria's 1920 Constitution, constitutional courts are central to the fundamental arrangements in such countries as Germany, Hungary, and South Africa. These courts often have powers beyond those familiar to the American tribunal; constitutional courts typically are not bound by a case or controversy requirement and thus have the power of abstract review.
Given such developments, it is small wonder that comparative constitutional law has been a growth industry in American law schools. Comparativism in constitutional law serves many purposes. It enriches one's study of American constitutional law by adding another dimension to our critique of what the Supreme Court does. It heightens our sense of the world beyond our national boundaries, useful to lawyers whose firms and clients operate on the international scene, but also to lawyers as world citizens. Comparative studies can also nourish our search for principles of ordered liberty and for theories of a just society.
Will comparative constitutional law contribute to the growth of American constitutional law? We watch with fascination as justices of the Supreme Court debate whether comparative data are legitimate and relevant in defining such concepts of due process of law and cruel and unusual punishment. Justice Scalia reminds us that it is an American Constitution which the justices are interpreting, while others, such as Justices Breyer and Ginsburg, find more room for practices of other countries. What will tomorrow's justices do? That may depend in part on what is taught in today's law school classrooms.
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Use of International Sources in United States Constitutional Interpretation
R. Randall Kelso Spurgeon E. Bell Distinguished Professor of Law South Texas College of Law United States
The various approaches of United States Supreme Court Justices to the use of international sources in interpretation of the United States Constitution follows the Justices typical approach to other aspects of constitutional interpretation. In general, there are four approaches to interpretation depending on how the Justice answers two basic questions regarding judicial decisionmaking.
The first question concerns the nature of the judicial task: whether law is separable from moral or social value considerations (the law being solely a body of principles about which predictions can be made – law as science/positivism), or whether law is a body of rules testable by reference to some external standard of rightness (some social or moral value – law as normative or prescriptive, not descriptive). The second disagreement concerns the nature of law: whether law is ultimately capable of being represented as a set of logically consistent universal rules (what has been called the analytic assumption), or whether rules are ultimately to be judged not in terms of logical consistency, but as means to an end (the functional attitude). Depending on the answer to these two questions, there are four possible judicial decisionmaking styles:
Styles of Judicial Decisionmaking
Nature of Judicial Task = Positivism: Normativism: Judges as Neutral Judges as Declarers of the Law Normative Actors Nature of Law Law as Logical; Formalism/ Natural Law Analytic or Analytic Positivism Conceptualist Attitude; Law as Library Science
Law as Means to Ends; Holmesian/ Instrumentalism Functional or Functional Positivism Pragmatic Approach; Law as Empirical Science
Typically, those who think law and morals are separable think laws are ideally formulated as logically consistent universal rules. These are the Formalists. Those who think law is testable by some external standard also tend to see law as a means to the end of that standard. These are
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the proponents of Instrumentalism. The two sets of propositions do not necessarily have to co- exist, however, as is illustrated by the jurisprudence of Justice Oliver Wendell Holmes and by the Natural Law philosophic tradition.
Holmes thought that the life of the law was not logic, but experience, and that law therefore must be responsive to social conditions, as a means to that end. However, he also believed that law and morals were separable, that law was a science, and that the most important thing for any law was its certainty and predictability. The role of the law, in Holmes' view, was to permit the majority to do what whatever it wanted. Thus, he hoped, society could avoid violent confrontation. In this sense, Holmes agreed with the formalist view that law cannot be tested by an external standard of moral rightness. Rather, law is merely a reflection of the outcome of the relevant political process. Under this view, legislatures, not courts, are the proper balancers of public policy. Holmes disagreed with the Formalists over whether legal rules were universally true, because he saw that the dominant group in society often changes. Thus law must change to reflect new power relationships and be a means to the end of facilitating that process.
The fourth type of judicial decisionmaking can be described as Natural Law. Natural Law theory agrees with the formalist proposition that law can ultimately be expressed as a system of logically related, universal rules. Law is not just a means to the end of some social value, regardless of what that does to the symmetry of rules. On the other hand, Natural Law theorists disagree with the formalist conclusion that law and morals are separable, believing that law can be tested by an external standard of rightness, the standard of natural law.
Given their focus on positivism and logical elaboration of the law, Formalists tend to believe that the Constitution has a positive, static meaning, fixed at the time of ratification. They rely heavily on literal meaning and specific historical intent. They prefer bright-line rules rather than standards, and prefer doctrine to reflect categorical elements rather than a balancing or factor-weighing approach. This approach was followed by a majority of Justices on the United States Supreme Court from 1873-1937. On the Supreme Court today, Justices Scalia, Thomas, and Alito tend to follow this approach. From this perspective, contemporary international sources are illegitimate to consider, as they do not reflect the intent of the framers and ratifiers of the United States Constitution back in 1787-89 when the Constitution was drafted and ratified, or the intent of the framers and ratifiers of the 14th Amendment Due Process or Equal Protection Clauses in 1868. See generally The Relevance of Foreign Legal Materials in U.S. Constitutional Cases: A Conversation Between Justice Antonin Scalia and Justice Stephen Breyer, 3 Int'l J. Const. L. 519 (2005) (Justice Scalia’s view).
As a positivist theory, Holmesians share the formalist emphasis on literal meaning and specific historical intent, but are willing to consider purpose arguments because of the Holmesian focus on the fact that all law has a purpose. Since Holmes also thought that law should reflect the will of the people, he gave considerable deference to legislative, executive, and social practice. Holmes also followed precedents which were settled law or on which persons had substantially relied. The Constitution thus can be a living document, particularly to the extent its
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interpretation reflects legislative and executive practice. See generally William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693, 694, 699-700 (1976). From this perspective, use of international sources is also illegitimate, as those sources do not reflect legislative and executive practice within the United States. This approach was followed by a majority of Justices on the Supreme Court from 1937-1954. Recent followers of this style of interpretation were Chief Justice Rehnquist, and, on the current Court, Chief Justice Roberts, who replaced Rehnquist in 2005.
Based upon their focus on law as a functional instrument to achieve social ends, Instrumentalists view the Constitution as a living document that should be interpreted to bring about just results. For instrumentalists, all of the sources of constitutional interpretation are relevant in the interpretation process, including consequences considered in terms of policy considerations. Since international sources can aid in determining possible consequences and policy outcomes, international sources are valid to consider in constitutional interpretation. See generally The Relevance of Foreign Legal Materials in U.S. Constitutional Cases: A Conversation Between Justice Antonin Scalia and Justice Stephen Breyer, 3 Int'l J. Const. L. 519 (2005) (Justice Breyer’s view). This approach was reflected in most Supreme Court decisions between 1954-1986. Influential Instrumentalists on the United States Supreme Court during the heydey of Instrumentalism included Chief Justice Warren, and Justices Douglas, Brennan, Fortas, and Marshall. On today’s Court, Justices Stevens, Ginsburg, Breyer, and likely new Justice Sonia Sotomayor, embody a moderate form of Instrumentalism.
From 1789 until 1873, and again in recent key votes since 1986 of Justices Powell, O’Connor, Kennedy, and Souter, the Justices followed the 18th-century natural law tradition of reasoned elaboration of the law in light of the law’s purposes and history, with fidelity to precedent and to a considered and consistent legislative, executive, or social practice. Chief Justice John Marshall, and modern natural law Justices, have also considered whether certain consequences of decisions reflect faithful adherence to background principles that are embodied in Constitution, particularly universal natural law principles of justice embedded in the concepts of due process and equal protection, whose meaning can evolve consistent with more enlightened understanding of the content of those principles today. From this perspective, international sources are relevant to the extent they embody the same Enlightenment natural law approach of the framing and ratifying generation in 1787-89 and the framers and ratifiers of the 14th Amendment in 1868. Justices did that during the original Natural Law era from 1789-1873. See generally David Fontana, Refined Comparativism in Constitutional Law, 49 UCLA L. Rev. 539 UCLA L. Rev. 539, 575-83 (2001) (discussing judicial practice from 1789 through the Civil War); Sarah H. Cleveland, Our International Constitution, 31 Yale J. Int’l L. 1 (2006) (discussing cases where the Constitution refers to international law or international law is used as a background principle to identify the territorial scope of the Constitution, the powers of the national government, delineate structural relationships within the federal system, or individual rights cases). This is the approach of Justice Kennedy on the United States Supreme Court today. From this perspective, international sources that can best shed light on an Enlightenment natural law concept would most properly be used, such as European decisions regarding aspects of basic human rights and human dignity. This explains why it was European views
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against banning homosexual sodomy, rather than views of other nations around the world, that were used by Justice Kennedy in his opinion in Lawrence v. Texas, 539 U.S. 558, 566-72, 575 (2003) (Kennedy, J., opinion for the Court). See generally Rex D. Glensy, Which Countries Count?: Lawrence v. Texas and the Selection of Foreign Persuasive Authority, 45 Vir. J. Int’l L. 357 (2005).
Complete discussion of these four styles of judicial interpretation – Formalism, Holmesian, Natural Law, and Instrumentalism – in the context of constitutional decisionmaking generally appears in Charles D. Kelso & R. Randall Kelso, The Path of Constitutional Law (2007) (a 1600- page E-Book available from www.vandeplaspublishing.com).
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Teaching Comparative Perspectives in the Domestic Constitutional Law Class: A Step by Step Primer ©
Mark S. Kende* Drake Law School United States
I. INTRODUCTION Comparative constitutional law has taken off as a popular subject for U.S. law schools in the last decade. Questions have arisen about whether, and how, to integrate such comparative perspectives into domestic constitutional law classes so that all students are exposed to such approaches, not just those who take upper level seminars. The relevance of international human rights law has also come up. The AALS has held symposia on these topics, and various approaches have been advocated.1 Professors Brian Landsberg and Leslie Jacobs have written an impressive short book, intended for use as a supplement by American law professors, called Global Issues in Constitutional Law. Some scholars, however, have undoubtedly not pursued such avenues given the numerous domestic topics to be covered, and given possible student resistance.
This essay seeks to reduce these concerns by providing a short step by step description of how to integrate comparative perspectives into an American constitutional law survey class with brevity. Law professors in other countries can use this method to integrate American or other perspectives. The key is to raise at least one foreign perspective per major course topic. This essay will also demonstrate that foreign law does not have a “liberal” bias as alleged by some scholars.
II. STEP BY STEP INTEGRATION
a. The “structural” Constitution The typical first American constitutional law course focuses on the U.S. Constitution’s “structural” aspects: judicial review, separation of powers, legislative authority, federalism, and executive power. Most U.S. casebooks start with Marbury v. Madison.2 A professor can readily
*James Madison Chair Professor in Constitutional Law, Director of the Drake Constitutional Law Center. Email: [email protected]
1 Every issue of Volume 58 of the Journal of Legal Education for 2008 has at least one article addressing comparative perspectives. Moreover, the theme for the 2003 Annual Meeting of the Association of American Law Schools was “Legal Education Engages the World.”
2 5 U.S. 137 (1803).
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contrast American style judicial review with the United Kingdom (UK), France, and Canada, The UK Westminster system rejected judicial supremacy for parliamentary supremacy. The professor can argue in favor of the UK system by pointing out that many Americans believe that the courts infringe on democracy.
In France, the Conseil Constitutionnel advises Parliament on whether proposed legislation would be constitutional. This role contrasts with the U.S. Constitution’s case or controversy requirement. One can support France by saying that a proposed law’s constitutionality should be assessed in advance to avoid uncertainty and huge litigation costs. The teacher could also discuss how Canada’s “notwithstanding” clause acts as an escape hatch from the “counter-majoritarian” difficulty that obsesses American constitutional law.
To summarize, it is not time consuming to mention at least one alternative in class and get student reactions. All that may be lost is the chance to ask one more “Socratic” hypothetical.
During discussions about the U.S. Supreme Court, one can pose questions regarding the wisdom of life tenure, which is internationally unique, as well as about the U.S. judicial confirmation process. Surprisingly, my students often favor life tenure even when I describe it as unpopular abroad. One can contrast the U.S. confirmation approach with a judicial commission alternative, such as in South Africa, which may arguably reduce politicization. Then there’s the issue of whether it’s better to have a Supreme Court or a Constitutional Court.
On separation of powers, American law professors can reference the English approach where cabinet ministers sit in Parliament. Then there are the broader questions of parliamentary vs. presidential systems.
Regarding executive power, France’s endorsement of broad Presidential immunity (which came up while President Chirac was in office) is a useful counter to the American approach embodied in Clinton v. Jones.3 The Jones reasoning that such litigation will not interfere with the President now seems naive. There are also similarities. Executive power in many nations has been boldly asserted because of the “war on terror.” Courts throughout the world have therefore had numerous issues to address. Several U.S. Supreme Court cases on the subject, such as Hamdan v. Rumsfeld,4 require discussion of international human rights norms.
Another instructive case is Missouri v. Holland5 where the U.S. Supreme Court upheld a law enforcing a Migratory Bird Treaty. The Court reasoned that Congress may have broader power to pass laws implementing treaties than otherwise. This case allows discussion of monist
3 520 U.S. 681 (1997).
4 548 U.S. 556 (2006).
5 252 U.S. 416 (1920).
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v. dualist approaches to treaties, the relevance of international conventions to domestic law, state’s rights, executive powers, etc. One can also discuss whether Congress would have such enhanced power pursuant to a multi-lateral treaty.
Basic sovereignty and federalism questions can be compared internationally. In United States Terms Limits, Inc. v. Thornton,6 the U.S. Supreme Court struck down state imposed Congressional term limits. The Court divided closely on the source of sovereignty in the U.S. – whether it resides with the people or the states. It’s amazing that this issue was still debated almost 200 years after McCullough v. Maryland,7 where the Court supported the constitutionality of the Bank of the United States. This American debate can be compared to Canada, which dealt with secession related to Quebec, and to Hong Kong. Hong Kong is labeled a Special Administrative Region of the People’s Republic of China (PRC) but it has far more autonomy than any mainland province. Hong Kong has a Bill of Rights, a relatively independent High Court, etc. There is an underlying dispute, however, over whether Hong Kong’s sovereignty derives from the British – Chinese Treaty of 1993, or from the PRC Constitution.
Professors interested in teaching about the U.S. Supreme Court’s actual use of foreign law in recent constitutional cases can focus on Justice Breyer’s dissent in Printz v. United States8 The majority ruled that Congress illegally commandeered state law enforcement officials by enacting a federal law requesting state assistance with background checks on gun purchasers. In dissent, Justice Breyer relied on Switzerland as a system in which local authorities regularly assisted the national government. Yet, several legal scholars convincingly argued that Breyer did not fully appreciate the Swiss system.9 Even Breyer admitted that he regretted citing a Zimbabwe case in another opinion. Conservatives and liberals can find plenty of ammunition in these cases.
b. The “rights” Constitution On individual rights issues, the U.S. Supreme Court often invokes three levels of scrutiny: rationality, intermediate, and strict. Yet numerous scholars have pointed out that the Court actually employs many scrutiny gradations.10 In the affirmative action case, Grutter v.
6 514 U.S. 779 (1995).
7 17 U.S. 316 (1819).
8 521 U.S. 898 (1997).
9 See e.g. Rick Hills, Is Breyer’s pro-commandeering argument in Printz the worst comparative constitutional law argument ever?, Prawfs Blawg, Sep. 9, 2008 (last visited July 19, 2009), http://www.typepad.com/services/trackback/6a00d8341c6a7953ef00e554f3feaa8833.
10 See e.g. Jeffrey Shaman, Constitutional Interpretation 111 (2001)(discussing Randall Kelso’s view that the Court has at least six levels of scrutiny); Suzanne Goldberg “Equality Without Tiers,” 77 S. Cal. L. Rev. 481 (2004).
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Bollinger,11 Justice O’Connor claimed she was using strict scrutiny but actually deferred to the university. Moreover, the Court in Texas v. Lawrence12 said it was using rationality review yet struck down the law prohibiting gay sex.
My students usually notice this level of scrutiny problem quickly and are puzzled by it. I therefore ask whether it would be better to have a system of European or Canadian type of proportionality in which the Supreme Court explicitly weighs interests in a more nuanced fashion. Usually my students then backpedal. They say that the American system is better because proportionality gives too much discretion to judges. Again, conservative scholars might be pleased by this pro-American reaction to foreign law.
Of course, there are numerous differences between the U.S. and foreign nations in particular rights areas. Most nations reject the death penalty. On equal protection, many countries endorse substantive equality rather than American formalistic equality. Equality cases in India focus on caste and class, not race.
On religion, many countries are less separationist because their constitutions lack an Establishment Clause. This is another way that foreign law may support American conservative results. Indeed, there is little doubt that U.S Establishment Clause doctrine is confusing.
Regarding free speech, Internet cases provide a host of opportunities to discuss differing foreign approaches especially on hate speech, pornography, commercial speech (gambling) etc. A professor can discuss the famous case where Bavaria briefly forced the American company Compuserve to remove sexually explicit sites, or the more recent Yahoo! case involving Nazi memorabilia advertised in France. These both address the “race to the bottom” problem.
One can also contrast the U.S. Supreme Court’s rejection of socio-economic rights with South Africa’s Constitutional Court decisions.13 Or one can describe how India’s Constitution makes such rights “aspirational,” though their Supreme Court has gone farther. Similarly one can contrast the U.S. Supreme Court’s DeShaney v. Winnebago Cty. Social Services,14 finding no affirmative duty to protect, with provisions in the German Basic Law, or with the South African Constitutional Court’s decision in Carmichele v. Minister of Safety.15
Perhaps the most dramatic comparison involves interpretive method. Originalism has a unique power and significance in the American system which it lacks in other countries. One
11 539 U.S. 306 (2003).
12 539 U.S. 558 (2003).
13 See e.g. Government of the Republic of South Africa v. Grootboom, 2000 SACLR Lexis 126.
14 489 U.S. 189 (1989).
15 2001 (4) SA 938 (CC).
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can offer views from these other countries about why originalism has not taken hold.16 Inevitably such views delve into the most fundamental questions about different legal systems. Even if particular students will not practice or teach constitutional law, this knowledge of other systems can be beneficial in their international interactions, whether in business, in life, over the Internet, etc.
Lastly, professors can employ a novel teaching technique to help integrate foreign law. During my first class on American constitutional rights, I write a list of possible rights on the front board (ranging from the right to own a gun, the right to freedom of religion, the right to housing, etc.). I then ask the students to break into small groups and rank the rights in importance. During class-wide discussion, I ask the groups to share their justifications. When students mention less common rights, I will highlight their foreign judicial sources. We do this exercise before reading any U.S. Supreme Court rights cases.
In sum, one can integrate foreign law perspectives into domestic constitutional law classes in ways that do not take much time and that benefit the class, especially in this era of globalization. Students painlessly learn about diverse normative possibilities. Moreover, I put the Landsberg, Jacobs book and various comparative constitutional law casebooks (Tushnet & Jackson, Dorsen & Rosenfeld) on reserve for those who may be interested in further reading.
16 Michel Rosenfeld, “Constitutional Adjudication in Europe and the United States: Paradoxes and Contrasts,” 2 Int’l J. Const. L. No. 2 (October 2004).
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The Veil as a Subject for Comparative Legal Analysis
Mehmet K. Konar-Steenberg Associate Professor of Law William Mitchell College of Law St. Paul, Minnesota, USA [email protected]
Introduction
The Muslim woman’s veil1 is a commonplace article of clothing in many parts of the world, one which many of its wearers scarcely give a moment’s thought. Yet it is also sometimes a highly charged signifier that, in different places and at different times, has stood for gender repression or equality, political orthodoxy or revolution, liberal human rights values or rank oppression. These associations have, in turn, provoked a disparate collection of legal responses from the cultures in which these competing meanings have been generated. These starkly different legal responses make the veil a particularly useful subject of study for the comparative legal scholar or teacher interested in the impact of history and culture on law. This paper will briefly illuminate the differences in understandings of the veil across several legal/cultural systems in order to illustrate this subject’s potential.
A. The Veil Within Islamic Contexts
Muslims have given many interpretations to the Quran’s command that men and women should dress modestly.2 Generally, these variations reflect the impact of different cultural traditions rather than religious disagreements.
One version reads the Quran as providing religious and legal sanction for men to impose draconian veiling requirements upon women, consistent with cultural systems that are unapologetically patriarchal. The treatment of women by the Taliban in Afghanistan provides a recent example where the legal consequences for noncompliance with veiling laws included beatings and worse. Yet this is by no means the only view. In fact, some Muslim women see the veil as a way to assert control over when and how men look at them.3 From this perspective, the veil makes a statement of gender independence and may in a real sense promote what Westerners would regard as gender equality.
1 This article of clothing has many names; I’ve chosen the one that is probably the most familiar to American readers.
2 For an extended analysis of this internal controversy from a feminist perspective, see Nancy J. Hirschmann, The Subject of Liberty: Toward a Feminist Theory of Freedom, 170-198.
3 See Hirschmann at 182-184.
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Given this gulf in the “original” understandings of the veil, it is not surprising that laws about veiling (whether to, how much) across Muslim countries are quite heterogeneous. Thus, the veil is instructive at the outset in reminding us that neither Islam nor Islamic law are monoliths. Culture and history are embedded in the differing approaches to the subject of the veil within the world’s many Islamic legal contexts.
B. The Veil and Political Speech
Moving from these “original” gender-related meanings, the veil has also acquired distinctly political meanings in places where the veil is seen as a symbol of opposition to the political establishment. The Turkish Republic, for example, emerged from the ashes of a theocratic empire, and from the start, the new republic’s founders sought to replace the symbols of the old regime with those that they felt represented modernity and progress. Thus, where the sultans had required that their subjects’ to don attire reflecting their religious affiliations,4 the new republic’s framers favored the suits, ties, and fedoras of Western Europe. They also sharply restricted the wearing of the traditional fez by Muslim men and veils by Muslim women, especially in government settings and universities. Today, Turkey faces a rising Islamist movement bent on eroding Turkey’s strict secularism. Female adherents of this movement have sought to wear the veil in government settings, and these acts have been interpreted as direct political challenges to Turkey’s constitutional secularism. In short, the meaning of the veil in Turkey (and in other places) is has become distinctly political.
France, like Turkey, has also banned the veil along with other religious symbols in public schools on grounds that these institutions are strictly secular. But France does not share Turkey’s recent experience as an Islamic empire. Instead, France is a predominantly Christian nation whose former empire included large numbers of Muslims. This imperial legacy has left France with one of Europe’s largest Muslim immigrant populations, a situation that unsettles French nationalists. In this context, France’s ban on veils and other religious symbols in schools, adopted in 2004, might be viewed at least in part as reflecting nationalist, anti-immigrant sentiments. Similarly, the current effort to extend the veil ban to all public places—a restriction that would go beyond the limits imposed in Turkey—has been challenged by those who argue that such a sweeping measure stigmatizes French Muslims at a time when there is a significant need to incorporate them into the French polity.5
C. The Veil and Personal Autonomy
Intolerance of the veil has lead to condemnation in some quarters that is rooted in another perspective—namely, that the veil is an expression of religious liberty and individual
4 Sahin v. Turkey, Application No. 44774/98, European Court of Human Rights, paragraph 29.
5 “Only 367 Muslim Women in France Wear Full Veil – Report,” New York Times, July 29, 2008, http://www.nytimes.com/reuters/2009/07/29/world/international-uk-france-veil.html. According to this article, President Sarkozy has not endorsed this plan but has stated that the veil is “not welcome” in France.
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autonomy. Many American observers tend to criticize Turkish and French restrictions from this perspective, for there is general agreement that under the United States Constitution, wearing the veil is an act of religious self-expression that should be protected against state interference. Indeed, to the extent that wearing a veil is mean to convey political speech in addition to religious expression, the American perspective tends to find additional justification for restraining the state.6 At the same time, of course, these same observers are critical of policies in places like Taliban Afghanistan and Iran, where veiling is compulsory; the nominal unifying idea in these criticisms is that veiling as a form of religious or political expression ought to be the choice of the individual, not the state.
Summary
Across these various cultures, the veil takes on different meanings, reflecting the religious, cultural, political, and ultimately legal landscapes within which these meanings are generated. In some Muslim cultures it is key to a patriarchal ordering of society; in others it is a means of thwarting or at least limiting the power of men over women. In Turkey, laws addressing the veil focus on political meanings, while in France there are charges that similar restrictions are inspired by anti-immigrant bias. In the United States, the meaning of the veil is mediated through the concept of individual autonomy, resulting in constitutional restrictions on the power of the state to both limit and require the veil. These disparate responses illustrate the potential of the veil as a focus for further comparative legal study and as a device for teaching comparative legal techniques that emphasize the role of history and culture in the production of law.
6 For a comparison of French and (likely) American constitutional responses to the banning the veil in schools, see Anita L. Allen, Undressing Difference: The Hijab in the West, 23 Berkeley J. Gender, L., & Justice 208 (2008).
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The Polysemy of Privacy: Comparative Constitutional Law and the Problem of Culturally-Contingent Meaning
Prof. R.J. Krotoszynski, Jr.1 University of Alabama United States
Sometimes we use the same word to indicate different things. For example, in standard American English, the word Aplay@ can carry several meanings, including a noun (a theatrical production or a single round in a sporting event) or a verb (a diverting activity, often associated with children). Even though spelled and pronounced identically, the word simply means different things in different contexts. ABall@ is another example of a polysemous word; it can refer to a round, spherical object, a formal dance, or, more generically, a good time (i.e., “we had a ball last night”).
Like “play” and “ball” the concept of “privacy” can be used to refer to multiple legal concepts. Privacy can refer to an autonomy interest; that is to say, the right to do or refrain from doing something. In the United States, the right to terminate a pregnancy is an aspect of a constitutional “right of privacy” that relates mainly to autonomy interests.2 But this is hardly the only way one might conceptualize the concept of privacy. Indeed, it arguably is a rather odd construction of the word, given that “privacy” in non-legal contexts usually denotes seclusion or non-disclosure, rather than more generalized autonomy interests.
Indeed, privacy logically can and does refer to an interest in not disclosing personal information; the historical roots of the right of privacy in the United States relate to this aspect of the concept. Warren and Brandeis, in their iconic law review article in the Harvard Law Review,3 argued that the common law of torts should protect an interest in non-disclosure of certain true, but embarrassing, personal information.4 Unlike the law of defamation, which provides an economic recovery for the dissemination of damaging but false information, Warren and Brandeis argued that the law of tort also should provide a recovery for the dissemination of true information that was harmful to personal or business interests, in the absence of some public interest supporting disclosure of the information. The argument
1 John S. Stone Chair, Director of Faculty Research, and Professor of Law, University of Alabama School of Law. This is a revised (and abridged) version of a longer paper that I presented at the First Amendment Discussion Group meeting at the University of Luxembourg School of Law, in Luxembourg City, Luxembourg, in May 2009.
2 See Roe v. Wade, 410 U.S. 113 (1973); see also Griswold v. Connecticut, 381 U.S. 479 (1965).
3 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890).
4 Id. at 205-14.
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proved persuasive and most states recognized a right to recover damages associated with the public disclosure of private facts.
These examples, privacy as autonomy and privacy as non-disclosure, also highlight an important distinction in the use of the concept in both the U.S. and in Europe: whether legitimate privacy interests primarily implicate protection of “privacy” (however defined) against the government, against other private citizens, or against both the government and other citizens. In other words, is privacy something we demand from the government? Or something we demand from each other and private corporations? To be clear, a fully theorized understanding of “privacy” should encompass protection against both the government and private interests that unduly seek to compromise a reasonable interest in either autonomy or non-disclosure. Yet, I think that a tendency exists in the contemporary United States to think about privacy primarily as running against the government, rather than against other citizens and private corporations.
Although the proposition is contestable, I want to suggest that in the contemporary United States, most citizens understand privacy interests to implicate autonomy rights against the government; by way of contrast, privacy law does relatively little to protect citizens against each other, or against corporations that seek to collect and sell personal information that arguably fits within the scope of the Warren and Brandeis concerns. By way of contrast, my sense is that in the contemporary European Union, privacy concerns are as much about securing personal information from other private interests, including both other citizens and corporations, as much, if not more, than about autonomy claims against the government.
In their seminal 1890 law review article, Samuel D. Warren and Louis D. Brandeis argued that the law of tort should provide some measure of protection against the public disclosure of 5 private facts. They argued that “the right to be let alone@ should enjoy formal legal protection and suggested that “[o]f the desirability-indeed the necessity-of some such protection, there can, it is believed, be no doubt.”6 After surveying the law of property and copyright, Warren & Brandeis argue that a reasonable extension of existing law could create a zone of protection against the disclosure of private facts.7 In the end, “[t]hese considerations lead to the conclusion that the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or the arts, so far as it consists of preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone.”8 Thus, recognizing a right against the publication of private facts without permission provides legal protection akin to “the right not to be assaulted or beaten,
5 Warren & Brandeis, supra note 3.
6 Id. at 196.
7 Id. at 197-203.
8 Id. at 205.
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the right not to be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed.”9
From a European perspective, of course, the notion that disclosure of private facts without permission might give rise to liability should not be particularly revolutionary. The protection of personal honor and dignity, as an incident of aristocratic privilege, later democratized so that, in theory, all persons are potentially people deserving of honor and respect, is a baseline principle of the civil law of Germany and France (and has been for a very long time).10 As Professor James Q. Whitman puts the matter, in Europe, legal systems tended to level everyone up, whereas in the United States, we have “leveled down.”11 Moreover, “[t]o say that America has absolutely no law of civility is to say too much. But to say that in general America has no law of civility - especially as compared with a country like Germany - is to make the right generalization.”12 In contrasting U.S. and German law on the protection of honor with respect to personal insult, Whitman observes that “[t]his is a body of law that shows, in many of its doctrines, a numbness to free-speech concerns that will startle any American.”13
In thinking about the protection of privacy in transatlantic terms, I think a key distinction that must be addressed is the utter absence of mandatory civility norms in the United States. Under the Free Speech Clause of the First Amendment, one is free in the United States to engaged in targeted insult, with the aim of “assassinating” the character of a public official or public figure, with complete legal impunity.14 Whether one attempts to fix liability on a theory of defamation, intentional infliction of emotional distress, or even privacy, in the United States the claim will fall to concerns about ensuring the public debate about public officials, public figures, and matters of public concern is “uninhibited, robust, and wide- open.”15
These fundamental differences in the conceptualization of a shared legal construct, “privacy,” a construct that enjoys constitutional protection both under the U.S. Constitution
9 Id.
10 See James Q. Whitman, Enforcing Civility and Respect: Three Cultures, 109 YALE L.J. 1279 (2000) (discussing the protection of personal honor in the civil law of France and Germany, and contrasting this protection with the approach in the United States).
11 See id. at 1285, 1319-20, 1344, 1358-59, 1387.
12 Id. at 1384.
13 Id. at 1312.
14 See Hustler Magazine v. Falwell, 485 U.S. 46, 52-55 (1988).
15 New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
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(by virtue of the Due Process Clauses) and also in Western Europe (by virtue of both domestic constitutions and the European Convention on Fundamental Rights) suggest an important problem for comparative constitutional law: even when the problems inherent in working with translated materials do not exist (and European Court of Human Rights decisions are readily available in English, directly from the Council of Europe), problems of legal culture still remain. In other words, when Europeans and U.S. lawyers, judges, or legal academics talk about “privacy” the words might be the same, but the shorthand of “privacy” represents radically different baseline assumptions about the underlying legal, social, and moral concerns. Indeed, it is quiet easy to imagine a U.S. and German judge talking about privacy amiably, but both taking away very different understandings of what has been said; they might very easily talk past each other rather than truly with each other.
In raising the problem of polysemy, I do not mean to suggest that it cannot be met and overcome; rather, I mean only to posit that comparative constitutional law involves difficulties that go well beyond the surface of language: they involve deeper issues that relate to a proper understanding of not only legal culture, but of a polity=s culture more generally. In fact, the risk of falling victim to the perils of polysemy seem to me greater in the absence of a linguistic difference; when one works with materials in translation, a legal scholar has an awareness the she must be on guard against over readingBor under readingBa text. When language is familiar, however, the subconscious mind races ahead and fills in meaning, reflexively, without so much as skipping a beat.16
When engaged in a comparative public law project, one must stay carefully attuned to the possibility (probability?) that familiar words and concepts do not bear the same meaning abroad as they do at home. It seems, perhaps, a self-evident proposition, but it a cautionary note far easier to state in the abstract than to apply in practice.
16 See Stanley Fish, IS THERE A TEXT IN THIS CLASS?: THE AUTHORITY OF INTERPRETIVE COMMUNITIES (1980).
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Electoral Reform
Professor Henk Kummeling1 Utrecht University The Netherlands
Introduction
‘Electoral engineering’, i.e. the constant adjustments to the electoral system, is a popular pastime. And this is quite understandable, because there is no perfect electoral system which completely meets the demands of governments, administrations, and members of parliament as well as the demands of the people. All experts are in agreement here; there is simply not one best electoral system. The effective functioning of an electoral system is always dependant on time and context. Changes to an electoral system may certainly contribute to the solution of a certain problem, but almost always the solution to one problem creates another. In most cases, these solutions and problems are concerned with improving either the representativity or the stability generated by the electoral system. These two concepts immediately indicate a potential field of tension: improvements to representativity often result in problems with stability and vice versa. This does not mean, however, that changes to electoral systems are not worthwhile. In this contribution, I aim to give a broad outline of the possibilities available, but also to indicate possible problems which may be created by electoral systems. I shall also elaborate on the main trends in the world.
I. Background to electoral changes
All over the world, attempts are constantly being made to solve the problems of existing political systems by amending the electoral system2, not just because a new electoral system solves problems, but because it also creates new ones. I shall give some examples of this latter case. With certain regularity, it appears that a particular electoral system functions well during a certain period and to the satisfaction of the majority of the population, and yet due to changing political circumstances problems develop, resulting in increased calls for the system to be revised. We see, therefore, that electoral systems are revised with some regularity. There are, of course, countries that are the metaphorical exception to the rule and one example is the Netherlands. The electoral system which was introduced there in 1917 still applies and this may be regarded as quite unique.
When we review all these revisions of electoral systems, it is noticeable that these changes almost always take place in the field of tension between representativity and stability. Before I elaborate on this further, I need to make a number of preliminary remarks. First, I would like to point out that representativity is not per se equal to proportionality. The true reflection of the wishes of the people can also be achieved in other ways, for example, by:
1 Dean of the Faculty of Law, Economics and Governance, Professor of Constitutional Law, Utrecht University, The Netherlands; Chairman of the Dutch Electoral Council. 2 J.A. van Schagen/H.R.B.M. Kummeling, Proeve van een nieuw kiesstelsel, Deventer: Kluwer 1998, p. 37; A. Lijphart, Electoral systems and Party Systems, Oxford University Press 1995, p. 52 ff.
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*Representation of a particular territory of the state (region/island). In Spain, members of Congress are chosen on the basis of proportional representation in closed districts. These are the districts into which Spain’s fifty provinces are divided, including provinces where there are strongly separatist feelings, such as in Catalonia and in the Basque Country.3
*Representation of a certain (ethnic) population group. In New Zealand, for example, parliamentary seats are reserved for the original inhabitants, the Maoris.4
Very representative electoral systems can lead to unstable government; Italy and Israel are the best known examples here. From 1948 until 1992, Italy’s members of parliament were elected on the basis of proportional representation in multi-member districts. Governments were very unstable; on average they remained in office for no longer than one year.5 In Israel, where the representatives are chosen on the basis of proportional representation through national lists, the cabinets have been and are in office for a longer period of time but they are constantly on the brink of a crisis.6 There are, however, exceptions to this rule, like the Netherlands. For a period of twenty years up to 2002, the cabinets were very stable in close comparison. The same can be said of Austria, Norway and Sweden. This is also in line with Lijphart’s research that shows that very representative, proportional systems do not automatically lead to unstable governments. Lijphart is even clearly in favour of such systems. Partly because of their focus on consensus, they promote positive socio-economic growth which makes them effective in this field, at least according to Lijphart. This view is however contested in some of the literature.7
The stability of governments is most certainly not purely dependent on the type of electoral system which is in force. There are many indications that numerous other factors are relevant for stability. I will mention a few important ones:
a. leadership. No single system can work well without people who are capable of leading their parties and who have the ability to unite different parties and to attract voters to the extent that they are prepared to accept unpopular measures. b. accommodation of wishes of minorities by existing parties and government. Otherwise there is a constant stream of new parties and unstable behaviour on the part of the voters.8 Enormous dissatisfaction develops, which eventually becomes visible at grass-roots level. c. stable parties. It is also disastrous for stability if representatives who do not get what they want leave the party and start their own or join another party. d. political experience. Familiarity with procedures, with the political game and willingness to compromise greatly contribute to stability.
3 L. Prakke, The Kingdom of Spain, in: L. Prakke/C. Kortmann (Eds), Constitutional Law of 15 EU Member States, Deventer: Kluwer 2004, p. 760. 4 D. Denemark, Choosing MMP in New Zealand: Explaining the 1993 Electoral Reform, in: M.S. Shugart/M.P. Wattenberg, Mixed-Member Electoral Systems, The Best of Both Worlds?, Oxford University Press 2003, p. 95. 5 H.R.B.M. Kummeling/H.van der Kolk/M. Lourijsen, Gemengde kiesstelsels, in: Het nieuwe kiesstelsel onderzocht, Den Haag: Ministerie van Binnenlandse Zaken en Koninkrijksrelaties 2004, p. 26. 6 R.Y. Hazan, The Changing Constitutional and Political Position of the Prime Minister in Israel: in: J.W.L. Broeksteeg/L.F.M. Verhey (eds.), Een versterking van de minister-president?, Publicaties van de Staatsrechtkring, no. 23, Deventer: Kluwer 2005, p. 4 ff. 7 More on this subject in: D.M. Farrell, Electoral Systems, A Comparative Introduction, Palgrave 2001, p. 206. 8 See G.B. Cijntje, Electorale instabiliteit op Curacao, PhD thesis Amsterdam, Santa Maria 1999.
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When political parties and leaders are no longer able to meet these demands, the irrevocable result is instability. If we consider, for instance, the Netherlands in 2001, we will find all the ingredients for a political disaster. The purple coalition - as we call it - was so pleased with itself that it had scant regard for the dissatisfaction among the electorate. The final blow came when the man who was holding the coalition together and who had a tremendous personal following among the voters, Prime Minister Wim Kok, announced that he would not seek another term in office. This led to a vacuum in leadership, which was used extremely cleverly by a very populist politician, Pim Fortuyn. His rise in the opinion polls was very discomforting for the intellectual and left-wing part of society - which are, of course, not identical. As we all know, Pim Fortuyn was murdered by someone who considered himself as belonging to this sector of society.
If we try to fathom the changes in electoral systems which have taken place over the entire world in recent decades, it is significant that these changes are primarily concerned with improving either representativity or, its competing goal, stability. Examples of changes which have both aims in mind will be discussed later.
II. Representativity
During the past two decades there has been a clear tendency towards mixed systems: systems which form a combination of proportional representation with elections in smaller districts. Many variations of this can be discerned: - multi-member districts and single-member districts; - in multi-member districts, sometimes a PR system, sometimes a majority system; - in single-member districts, you will of course only find majority systems.
The Federal Republic of Germany is generally regarded as the most important example of a mixed system. Its main features are: - the voter has two votes to cast; - the first goes to nationwide party lists and this vote determines the division of seats between the parties on the basis of proportional representation; - one vote goes to candidates in single-member districts and this vote determines which candidates take the seats won by the national party lists.
What is the beauty of this system? This system combines the greatest proportionality possible with the greatest possible influence of the voters on the choice of candidates and having an own constituency. Shugart and Wattenberg, two eminent political scientists, came to the conclusion that such a system attempts to combine ‘the best of both worlds’ ; a true mirror of the opinion of the people is ‘adopted’ from the system of proportional representation and having an own constituency is ‘borrowed’ from the majority system.9 Many countries have followed Germany's example, such as the former Eastern Bloc countries of Hungary, Lithuania and Ukraine. South America also has examples of such systems in Bolivia, Ecuador, Mexico, Venezuela and Panama, for example. Fairly recently, New Zealand (1996), Scotland and Wales
9 M.S. Shugart/M.P. Wattenberg, Mixed-Member Electoral Systems, The Best of Both Worlds?, Oxford University Press 2003, p. 270 ff.
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(2001) have adopted similar systems.10 The Dutch Minister De Graaf tried to introduce a mixed system, but he was forced to resign in 2005, not only because the First Chamber barred the direct election of mayors but also because the coalition partners did not intend to fully cooperate in his plans to revise the electoral system.
It is important to point out that no country has introduced a majority system in recent decades. On the contrary, there has often been a partial or total abandonment of a majority system. Even in the cradle of the majority system, Great Britain, a revision of the system has been advocated for many years.11 After the last elections, which were held on 5 May 2005, an opinion poll showed that as many as two thirds of the electorate had had enough of the current majority system! In the last election, British voters were faced with a dilemma. They wanted in fact to reject the Iraq policy of Prime Minister Tony Blair, but the majority did not want a Conservative government. So the only alternative seemed to be a vote for the Liberal Democrats. But if they did this, this would play into the hands of the Tories, because its effect would be to reduce the percentage of the votes for Labour, and since there is a relative majority system (it makes no difference how many votes are cast for you, if you have just one more vote than the other party you win), this would mean that, while there would be hardly any increase in the number of votes cast for the Conservatives, they would still gain the relative majority in the separate districts. In other words: a vote for the LIBDEMS would bring the Conservatives into power and not many wanted this. This is the reason why the debate on introducing a PR system or a mixed system, such as that of Scotland and Wales, intensified after the last elections.
III. Stability
Before I come to the issue of improving stability by revising the electoral system, I would first like to stress that stability is not the same as effectiveness. If coalition partners have a strong hold on each other, there is little movement and little effective policy. The same situation can arise in a presidential system such as that of the United States, where two power blocs are up against each other. If Congress is not prepared to work with the President, or is internally very divided, then policies remain on the ground. This was the case at the beginning of the Clinton Presidency. But even if Congress has the same political colour as the President, a deadlock may occur. We saw this, for example in 2005, with regard to the appointment of judges. The Republicans were so tired of the Democratic opposition that they even wanted to change the rules of filibustering, so that a simple majority would break any resistance. This demonstrates once again that, no matter which system you choose, effectiveness is important as well as stability, but in any political system something like a working majority must be found.
1. Improvement of stability through means other than the electoral system
States which are having problems with stability seek solutions not only in amendments to the electoral
10 D. Denemark, Choosing MMP in New Zealand: Explaining the 1993 Electoral Reform, in: M.S. Shugart/M.P. Wattenberg, Mixed-Member Electoral Systems, The Best of Both Worlds?, Oxford University Press 2003 and H.R.B.M. Kummeling/H.van der Kolk/M. Lourijsen, Gemengde kiesstelsels, in: Het nieuwe kiesstelsel onderzocht, Den Haag: Ministerie van Binnenlandse Zaken en Koninkrijksrelaties 2004, p. 27 ff. 11 J.A. van Schagen/H.R.B.M. Kummeling, The proposals for electoral reform in the United Kingdom and the Netherlands,: D.J. Elzinga/F.Goudappel/H.R.B.M. Kummeling (eds.), Constitutionalism, Universalism and Democracy, University Press Groningen 1999, p. 1-29.
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system but other (constitutional) routes can lead to more stability. I would like to cite a number of examples:
* Stability can be achieved by arranging for a clear division of powers between government and parliament. This is very often associated with a presidential system but this can also be arranged within a more parliamentary system. In France, for instance, Parliament has only limited powers, exhaustively described in the Constitution. All other powers are vested in the government or the President. A no- confidence motion can only be served against the Prime Minister, but not against the President, who incidentally is elected directly and who has important powers in the field of defence and foreign policy.
* A certain amount of stability can also be achieved by not giving the government/the administration the power to dissolve parliament and thereby to make it possible to call for new elections. This creates a relatively strong parliament which is, for instance, the case in the Netherlands at the local level.
* A relatively stable government can also be achieved by the introduction of the constructive motion of no confidence; parliament can only vote down the government or the Prime Minister if a new government or prime minister is named at the same time. The German Federal Republic has such a system.
*More generally, it can be said, of course, that governments may become more stable if they have little to fear from other state organisations. In particular, this can be achieved by assigning few powers to the parliament. Examples from the French situation have already been given. Added to this is the fact that the French Assembly has little control of its own agenda which is in fact controlled by the government. The European Parliament also has no real powers to seriously impede the European Commission.
* The stability of a governmental system may be severely threatened by the rise of populist or extremist parties. A solution some countries have adopted is a very strict constitutional supervision of the functioning of political parties. In Germany, for instance, the Federal Constitutional Court may declare that certain political parties are unconstitutional because their aims or the conduct of their adherents seek to undermine or abolish the free democratic basic order or the existence of the Federal Republic of Germany. This is of course one of the most difficult questions for any political system, when and by which means should it defend itself? The banning of political parties might give rise to all kinds of other problems, like societal instability and a lack of trust in democracy, democratic institutions and reigning political parties. Therefore many counties, like the Netherlands, take the approach that populist and even extremist parties should be allowed to participate in parliament and any counter-attack should be by democratic, electoral means.
2. Stability through the organisation of the electoral system a. Majority system Of course, the system in the UK is the first to come to mind for most people, but there are numerous variations of this model. France has a two-round system. Only the candidates who have received at least 12.5% of the votes in the first round are allowed to proceed to the second ballot. In the second ballot, the candidate who receives relatively most votes is elected.12 In general majoritarian systems are likely to produce very stable governments, but their drawback is of course that political minorities have practically no chance whatsoever of gaining a considerable amount of seats. In the view of some a very
12 D.M. Farrell, Electoral systems, A Comparative Introduction, Palgrave 2001, p. 52.
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lucky side-effect is that extremist parties have no possibility to undermine the political system from within. For instance, the right-wing British National Party has no chance in the general elections for the House of Commons, but it did win two seats in the European Parliamentary Elections, merely because a PR system is being used in these elections. The introduction of a PR system in 1986 by President Mitterrand was not only favourable for his socialist parties but also for the right-wing extremist party of Le Pen. The rise of Le Pen was stopped by the reintroduction of a majoritarian system in the next elections for the Assembly. b. Thresholds Introducing raised thresholds ensures that small or smaller parties have little chance of gaining seats in Parliament. In Germany, parties must have gained at least 5% of the votes to gain seats in Parliament. In Poland the threshold is even higher at 7%.13 c. Favouring the biggest party There are numerous countries where the position of the largest party after the elections is artificially strengthened even further, in order to facilitate the forming of a government and to ensure that ‘effective’ government will be possible. In Greece, at the local level, the party winning the most votes automatically receives three-fifths of the number of seats. In France, the winning party is always given at least half of the seats at the municipal level.14 d. Directly elected leader of government
Israel has had almost the same electoral system as the Netherlands for many years; that is to say, proportional representation with a list system, where the entire country is regarded as one electoral district. This led to an enormous fragmentation of political parties and little stability. At the beginning of the 1990s, it was thought that the solution to this problem could be found in the introduction of the directly elected Prime Minister who, backed by a strong legitimacy from the electors, would find it easier to unite the parties. The new system first came into effect in 1992. For better comprehension it is important to know that, apart from the introduction of the directly elected Prime Minister, who was to be chosen at the same time as the Parliament, no other changes were made. The electoral system of Parliament remained the same and there were therefore no raised thresholds, for instance. In addition, the parliamentary rule of confidence was to remain unchanged, also in relation to the Prime Minister. The consequences were devastating and this was mostly due to the fact that voters split their votes. The voter had two votes, one for the candidate running for the office of Prime Minister and one for Parliament. What happened was the vote for the Prime Minister was given to a moderate candidate at the political centre. In short, a person who was deemed fit to lead a coalition cabinet, but who was well capable of defending Israeli interests in the world. However, after the voter had done this - what we might call a sensible choice - he gave his second vote to a more right-wing, more left-wing or even extremist party, such as the orthodox religious parties. So instead of one or two large parties developing, one of which would at least back the Prime Minister, the Israeli Parliament broke up into all kinds of small parties. It became enormously complicated to form coalitions and even more difficult to keep them together. The end result was even more unstable: ineffective government. In 2001 they returned to the old system, because Parliament did not dare, or was not able to change other elements of the system, for instance introducing thresholds which could have diminished the number of small parties in
13 H.R.B.M. Kummeling/H. van der Kolk/M. Lourijsen, Gemengde kiesstelsels, in: Het nieuwe kiesstelsel onderzocht, Den Haag: Ministerie van Binnenlandse Zaken en Koninkrijksrelaties 2004, p. 33 ff. 14 See H.R.B.M. Kummeling e.a., Lokale kiesstelsels vergeleken, VNG Uitgeverij: Den Haag 2002, p. 153 ff.
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Parliament.15 Dutch parties every now and then toy with the idea of introducing a directly elected Prime Minister. It might be obvious that, given the Israeli experiences, I am not in favour of this. It would be different if other, really supportive changes were made, such as the change in the electoral system for the Second Chamber.16 But this is not likely to occur. After several unsuccessful attempts to reform the electoral system through the ordinary institutional channels, in 2006 a Citizens Assembly was installed seeking an answer to the following question: what is the best electoral system for the Netherlands? After a year of intensive study the answer was the following: the current one! Only a few minor adjustments were proposed.17
IV. Conclusion
With great strides we have come to the conclusion drawn in the introduction: there is no such thing as an ideal electoral system. An electoral system can contribute at most to supplying a solution for problems which a particular political system has at a certain time. It must also be borne in mind that academics and research are not unanimous on the specific effects and elements of electoral systems.18 A system of proportional representation may lead to instability but there is much evidence that it has the opposite effect. In general, these systems seem to be somewhat more effective. Majority systems often lead to stable governments but certainly not always to effective administration. In any case, such systems often have the problem of inadequate representativity; minorities and minority opinions are not able to penetrate into power, which may in the long term lead to ineffective administration.
What is clear, though, is that other factors besides the electoral system are relevant for the stability of governments and the political system. As well as the specific political culture, such aspects as leadership, the stability of political parties and political experience are extremely decisive for stability.
Where the necessity of changes to the electoral system is concerned, the primary questions are as follows: which problem has to be solved and which consequences of the chosen solution are people prepared to accept? Because one thing is very clear: electoral engineering in favour of stability practically always leads to lesser representativity and vice versa. Since every solution creates a new problem, the main question is the following: which problem is worse in a specific period?
15 R.Y. Hazan, The Changing Constitutional and Political Position of the Prime Minister in Israel: in: J.W.L. Broeksteeg/L.F.M. Verhey (eds), Een versterking van de minister-president?, Publicaties van de Staatsrechtkring, no. 23, Deventer: Kluwer 2005, p. 1 ff. 16 See also H.R.B.M. Kummeling, De rechtstreeks gekozen minister-president, in: J.W.L. Broeksteeg/L.F.M. Verhey (eds), Een versterking van de minister-president?, Publicaties van de Staatsrechtkring, no. 23, Deventer: Kluwer 2005, p. 33 ff. 17 For more information on the working of the Dutch Citizen’s Assembly see Patrick Fournier, Henk van der Kolk, André Blais, R. Kenneth Carty, and Jonathan Rose, Paper which is to be published by Oxford University Press (UK). Prepared for the workshop“Why Electoral Reform? The Determinants, Policy and Politics of Changing Electoral Systems”European Consortium for Political Research’s Joint Sessions of Workshops 14-19 April 2009, University of Lisbon, Portugal. 18 For instance D. Nohlen, Wahlrecht und Parteiensystem, 3rd edition, Opladen: Leske + Budrich 2000, p. 403 ff.
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The Use of International and Comparative Sources in a Domestic Constitutional Law Course
Brian K. Landsberg Distinguished Professor and Scholar Pacific McGeorge School of Law United States
Law schools in the United States have begun to recognize the need to provide global perspectives in so-called domestic law courses.1 Broadly speaking, the goals of globalizing the curriculum are to prepare for the practice of law in an era of increasing globalization, improve understanding and application of domestic law, and provide leadership in the global community.
This recognition extends to Constitutional Law.2 Nonetheless, the case books commonly used to teach Constitutional Law in law schools contain almost no comparative or international materials.3 The most obvious reason is that the case books already have more pages than a conscientious professor can cover in the time allotted. Some of the most popular U.S. Constitutional Law case books run to between 1600 and 1900 pages of very dense and difficult material. It is unrealistic to expect students to give careful attention to all this material, so faculty must almost always make hard choices as to which material to cover and which material to skip.
Thus, many U.S. law professors are torn between the need for coverage of basic domestic concepts and our felt need to also introduce global perspectives, which can be invaluable in illuminating the U.S. Constitution. In addition, of course, international law is a direct source of constitutional law. Moreover, exposure to foreign constitutional law helps prepare students for practice in a globalized society. Limited exposure will not lead to
1 . See, e.g., Mathias Reimann, From the Law of Nations to Transnational Law, 22 Penn. St.Intl.L.R. 397 (2004) and Making Transnational Law Mandatory: Requirements, Costs, Benefits, 23 Penn. St. Intl.L.R. 787 (2005); Franklin A. Gevurtz, et al, Report Regarding the Pacif McGeorge Workshop on Globalizing the Law School Curriculum, 19 Pac. McGeorge Global Bus. & Dev. L.J. 267 (2006). I discuss Pacific McGeorge School of Law’s experience in teaching global issues in my paper, Globalizing the Curriculum Through the Introduction of International, Transnational And Comparative Law Issues into Traditionally Domestically Oriented Required Courses, http://www.law.georgetown.edu/cle/documents/GLS/03FINALLandsberg.pdf, from which some of the points in this paper are drawn. 2 See, e.g., Neil S. Siegel, Some Modest Uses of Transnational Legal Perspectives in First-Year Constitutional Law, 56 J. Legal Ed. 201 (2006); Mark Tushnet, How (And How Not) to Use Comparative Constitutional Law in Basic Constitutional Law Courses, 49 St. Louis U.L.J. 671 (2005). 3 But see, Donald Kommers, American Constitutional Law: Cases, Essays and Comparative Notes (Rowman & Littlefield, 2d ed. 2004), which “stands alone among all American constitutional law casebooks for the amount and excellence of its treatment of comparative constitutional issues." David Fontana, The George Washington University Law School., http://www.rowmanlittlefield.com/Catalog/Reviews.shtml?command=Search&db=^DB/CATALOG.db&eqSKUdata= 0742563669 . Rowman & Littlefield, however, directs its publications to a wide range of university courses rather than to law school texts.
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understanding of other constitutions, but will both whet the interest and create awareness that more study is needed if one engages in a global law practice. Deeper understanding can be fostered in courses in International Law and in the newer discipline of Comparative Constitutional Law.4 Finally, exposure to foreign constitutional cases can help students understand the debate over the use of foreign law as persuasive authority in American constitutional cases.
U.S. law schools have adopted a variety of approaches to globalizing the curriculum. At my law school, Pacific McGeorge School of Law, we are experimenting with the pervasive approach, incorporating global perspectives into many domestic courses, including Constitutional Law.5 Pacific McGeorge’s Professor Franklin Gevurtz has edited a series of “Global Issues” books for West Publishing Company, which has grown to eighteen titles, covering most of the core curriculum and some other courses. While Pacific McGeorge School of Law has not generally required its professors to go global, many of us have been using these books in our required classes, and others have been incorporating international and comparative materials without assigning these books.
Two books in the series cover constitutional law.6 These books are designed to help constitutional law professors who wish to provide some exposure to global perspectives but are concerned about detracting unduly from core coverage. The amount of comparative and international law material available is overwhelming. Our object was not to write comprehensive books but to give faculty a modest menu of comparative and international materials from which to choose. The books are relatively short, to minimize the need to cut some domestic coverage in order to add comparative and international coverage. The materials are keyed to the major themes of most constitutional law courses: constitutionalism, judicial review, separation of powers, federalism, individual rights, the tensions between the right to speak and the harms that some speech may cause, and the tensions between the free exercise of religion and the separation of church and state. Some professors may feel comfortable assigning the entire book, while others will wish to pick and choose.
Professors who teach domestic constitutional law courses may not have a sophisticated knowledge of international law or the constitutional law of other countries. We believe that, with the help of a good teachers manual,7 they can nonetheless use global issues in their
4 For very fine case books, see, e.g., Norman Dorsen, Michel Rosenfeld, András Sajó, and Susanne Baer, Comparative Constitutionalism: Cases and Materials (2003) and Vicki C. Jackson and Mark Tushnet, Comparative Constitutional Law (2d ed. 2006). 5 For a helpful survey of methods, see James R. Maxeiner, Learning from Others: Sustaining the Internationalization and Globalization of U.S. Law School Curriculums, 32 Fordham Int’l L.J. 32 (2008). 6 Brian K. Landsberg and Leslie Gielow Jacobs, Global Issues in Constitutional Law (Thomson West 2007); Alan Brownstein and Leslie Gielow Jacobs, Global Issues in Freedom of Speech and Religion (West 2009). 7 Here is an example from the teachers manual for Global Issues in Constitutional Law: “Systems of Constitutional Review. The question this section poses is whether the surface differences among the various systems it describes substantially affect judicial review in practice. This section both shows the impact of Marbury v. Madison on other legal systems and also shows that other methods of constitutional review are possible. Note 2-4 asks the students to reflect on the common statement that English courts may not review constitutional issues, because England
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courses. Not only will their students gain greater understanding, but the professors also will gain deeper knowledge. Use of these supplements is likely to lead to increased interest in comparative and international law, both by faculty and students. This has proved to be the case for our faculty and, to a lesser extent, our students.
Overall student reactions have been positive, even though use of the material may have lengthened some reading assignments. Many students recognize the growing force of globalization in the law and are hungry to learn more. Student comments in spring 2008 about use of the Global Issues book in my Constitutional Law class ranged from very positive to very negative.8 In a broader survey of 496 students in spring 2009 about the use of global issues in their required classes, a majority of the students reported that they found the materials interesting, including 10% who found them very interesting. About half the students even said
lacks a written constitution. The rise of the administrative state, the development of European Union law, and generational changes require re-assessment of that view. Note 2-5 calls attention to features of Canadian constitutional review. The Amax Potash case has obvious parallels with U.S. jurisdiction stripping cases. Section 52(1) of the Canadian Constitution resembles the U.S. Supremacy clause but does not explicitly provide for judicial review, while Section 24(1) explicitly creates judicial review of claims under the Charter of Rights and Freedoms. Section 33, which allows temporary legislative override of constitutional decisions, can be the springboard for a useful discussion of the relationship between judicial review and a democratic system. Note 2-6 contrasts the German Basic Law=s description of constitutional review jurisdiction with Article III simple arising under language. The notion of the court as exercising a referee like function and the practice of issuing admonitory decisions also stand in contrast to U.S. notions of judicial review. Although South Africa adopted the German model of creating a Constitutional Court, the jurisdiction of lower courts over constitutional issues is treated differently. Finally, Note 2-7 examines the French and Chinese systems, which seemingly turn constitutional review over to non-judicial bodies. This note underscores that constitutional review of the validity of statutes may be treated differently than constitutional review of administrative decision making and executive action.”
8 Five liked the book. Seven said to get rid of it. Three said we should get rid of it unless we were going to have more classroom discussion of it Here are the few comments in spring 2008 course evaluations [out of 46 responses]:
Can global issues book. Don’t like global issues Global issues should be taken away Like your book Global book is good Global issues reading was POINTLESS unless we are going to be tested on it by the bar Spending a little more time with the “Global Issues” would be nice The global issues book was X helpful The global issues book was better [than the main text] I only read the first few assignments from the global issues book. I didn’t find it that helpful, honestly Global issues reading is not helpful when not discussed in class I liked the global issues book. I thought it brought some very interesting perspective. Not assign global issues unless there is more intent on discussing it We should get rid of the global issues book. Con Law is confusing and complicated as it is. No need to compare and contrast con law with foreign confusing constitutional cases. I didn’t think global issues was necessary The global issues book added some interesting perspectives
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the materials were more interesting than their domestic law materials, and about half also said that their exposure to global materials made them more likely to take international electives. A slight majority also said that the materials aided their understanding of law, and three quarters of the students said that the global materials helped them to see alternate approaches to legal problems, and three quarters also felt more alert to issues that may arise in an era of increased globalization.
Student criticisms of the global materials focused on two issues: the utility of the materials and the ways in which the materials were used. Some students thought the materials were not useful, because they would not be tested in their classes, would not be tested on the bar, or because the student felt that their future law practice would be purely domestic. Some students felt the materials were not discussed enough in class, were a confusing distraction, or that the professors needed to cut back on readings of domestic materials if they were adding global materials. Professors using global materials can minimize these student concerns by explaining the increasing globalization of domestic law practice, including assigned global materials in classroom discussions of constitutional law, using global issues in some exam questions, and exercising judgment as to the size of assignments.
Positive comments tended to note the way that global materials helped put domestic law into perspective, asked for even more exposure to international materials, and noted the globalization of economies and work forces.
The Global Issues series is meant to supplement domestic law case books. The need for such materials is highlighted by the fact that students are much more likely to be exposed to global materials when a Global Issues book has been published. However, the Global Issues series is not the ideal. Major publishers have flooded the market with at least twenty major course books in U.S. Constitutional Law. While every case book is drafted as a unitary resource, Global Issues books must be written for use with a wide variety of domestic texts. I believe the quality of the Global Issues Constitutional Law books is high, but they are no substitute for incorporating global materials into the domestic Constitutional Law case books. Ultimately, we, as the persons who are selecting what books to use in our domestic law courses must exert pressure on authors and publishers to add global materials to their books.
One possible criticism of the pervasive technique is that it necessarily oversimplifies global issues. Occasional reading and discussion of international, transnational, or comparative cases and materials fails to put them into context. A second criticism is that these materials are irrelevant to the future law practice of many graduates. Both critiques suggest that students who are interested in global issues should take global courses and that students who are not interested in them need not take them. I believe that these critiques misconceive the purposes of introducing global materials into domestic courses. The materials are not a substitute for classes in international, transnational or comparative law. They serve separate pedagogical and utilitarian purposes: to enhance understanding of domestic law and to prepare students for the globalization of legal practice.
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Freedom of Speech and Contempt by Scandalizing the Court in Singapore©
Jack Tsen-Ta Lee* School of Law Singapore Management University 60 Stamford Road, #04-11, Singapore 178900 [email protected] http://www.law.smu.edu.sg
The offence of scandalizing the court, a form of contempt of court, is regarded as obsolete in the United Kingdom. However, it continues to be imposed in other Commonwealth nations and remains very much alive in Singapore, having been applied in a crop of cases between 2006 and 2009. This short commentary examines one of these cases, Attorney-General v Hertzberg and others [2009] 1 Singapore Law Reports 1103, which has generated worldwide interest as it arose out of articles published in the Wall Street Journal Asia. In Hertzberg, the High Court of Singapore held that utterances by an alleged contemnor are actionable if they merely have an inherent tendency to affect the administration of justice. Drawing comparisons from other common law jurisdictions, it is contended that this traditional conception of the offence held by the court is inconsistent with the constitutionally guaranteed right to freedom of speech and expression, properly understood. The offence should therefore be fine-tuned by applying a more stringent standard for liability.
THE SPECIES OF the offence of contempt of court colourfully termed ‘scandalizing the court’, often regarded as having fallen into desuetude in the United Kingdom,2 has continued to be imposed in other parts of the Commonwealth. In particular, it remains very much alive in Singapore. It has been applied in a crop of cases over the past few years,3 one of the most recent being Attorney-General v Hertzberg and others,4 a decision of the High Court of Singapore. Hertzberg has generated a fair amount of interest around the world as it arose out of two articles and a letter published in the Wall Street Journal Asia (WSJA) in June and July 2008. The
© 2009. For conference use only – not to be published, reproduced or quoted from without the author’s permission. * LLB (Hons) (Nat’l University of Singapore), LLM (Lond); PhD candidate (Birmingham Law School, University of Birmingham, United Kingdom); Advocate & Solicitor (Singapore), Solicitor (England & Wales); Assistant Professor of Law, School of Law, Singapore Management University; 2009–2010 Lee Foundation Fellow.
2 In Ahnee v Director of Public Prosecutions [1999] 2 AC 294 at 305, Lord Steyn, delivering the judgment of the Privy Council on appeal from Mauritius, noted: “In England such proceedings are rare and none has been successfully brought for more than 60 years.” A person was last found guilty of the offence by an English court in R v Colsey, The Times (9 May 1931): Colin Munro, Case Comment, “More Heat than Light from Anwar” (2009) 13 Edin L Rev 104 at 107 3 See Attorney-General v Chee Soon Juan [2006] 2 SLR 650, HC (Singapore), You Xin v Public Prosecutor [2007] 4 SLR 17, HC (Singapore), Lee Hsien Loong v Singapore Democratic Party [2009] 1 SLR 642, HC (Singapore), and Attorney-General v Tan Liang Joo John [2009] 2 SLR 1132, HC (Singapore). The Singapore Law Reports (SLR) is Singapore’s official series of law reports. 4 Attorney-General v Hertzberg [2009] 1 SLR 1103.
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respondents in the case were Daniel Hertzberg, editor of the WSJA; Christine Glancey, WSJA’s managing editor; and Dow Jones Publishing Company (Asia) Inc, the proprietor and the publisher of the WSJA. The present case only involved Dow Jones, as the parties had agreed to hold the matters in respect of the first and second respondents in abeyance pending the outcome of this case and any consequent appeal. 5 After having been found guilty of scandalizing the court, Dow Jones elected not to appeal. The Attorney-General’s Chambers eventually brought further contempt proceedings only against Melanie Kirkpatrick, deputy editor of the WSJA’s editorial page, as it was her decisions that had led to the pieces being published. In March 2009, Kirkpatrick acknowledged responsibility for the publication of the pieces through her solicitors and was fined S$10,000.6 It does not appear that she appealed against the sentence. According to the Attorney-General, the articles and letter published in the WSJA, “individually and taken together, impugn the integrity, impartiality and independence of the Singapore Judiciary. It is implied that the Singapore courts do not dispense justice fairly in cases involving political opponents and detractors of Minister Mentor Lee Kuan Yew and other senior government figures, and the courts facilitate the suppression of political dissent or criticism in Singapore through the award of damages in defamation actions.”7 The third respondent denied that the items published constituted a contempt of court.
I. JUSTIFICATIONS FOR THE ‘INHERENT TENDENCY’ TEST
One of the main issues in Hertzberg was the appropriate test for determining if the offence had been made out. According to prior Singapore case law, the words complained of had to possess an “inherent tendency to interfere with the administration of justice”.8 Put another way, such words must convey to an average reasonable reader allegations of bias, lack of impartiality, impropriety or any wrongdoing concerning a judge in the exercise of his judicial function.9 Counsel for the respondent submitted that the test of whether there existed a “real risk” of prejudicing the administration of justice ought to be adopted, since it was clearer and struck a more appropriate balance between protecting the institution of an independent judiciary and the right to freedom of expression.10 He noted that this test had been widely adopted in other common law jurisdictions.11 However, the Court justified the rejection of the ‘real risk’ test on the ground that “conditions unique to Singapore (i.e., our small geographical size and the fact that in Singapore, judges decide both questions of fact and law) necessitate that we deal more firmly with attacks on the integrity and impartiality of our courts”.12
5 Id at 1109, [3]. 6 Zakir Hussain, “Govt to Take WSJ Editor to Court for Contempt: A-G Taking Action for Articles that ‘Scandalise the Singapore Judiciary’”, The Straits Times (14 March 2009); Zakir Hussain, “WSJ Senior Editor Fined $10,000 for Contempt of Court: Editor Responsible for Three Articles in its Sister Paper”, The Straits Times (20 March 2009). 7 Hertzberg, above, n 4 at 1113, [8]. 8 Attorney-General v Wain [1991] SLR 383 at 397, [50], HC (Singapore), cited in Chee Soon Juan, above, n 3 at 661, [30]–[31]; and Lee Hsien Loong, above, n 3 at 714, [174]. 9 Hertzberg, above, n 4 at 1124–1125, [31]. 10 Id at 1117, [17]. 11 Attorney-General v Times Newspapers Ltd [1974] AC 273 at 299, HL; Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 at 234; Ahnee, above, n 2 at 306; Wong Yeung Ng v Secretary of State for Justice [1999] 2 HKC 24 at 59, CA (HK); S v Mamabolo 2001 (5) BCLR 449 at [45], Const Ct (S Africa). 12 Hertzberg, above, n 4 at 1125, [33].
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In support of these justifications, the Court relied on its earlier decision Attorney-General v Chee Soon Juan.13 The judge in that case expressed the view that “the geographical size of Singapore renders its courts more susceptible to unjustified attacks”,14 relying on Ahnee v Director of Public Prosecutions.15 There, the Privy Council on appeal from Mauritius reasoned as follows:
[I]t is permissible to take into account that on a small island such as Mauritius the administration of justice is more vulnerable than in the United Kingdom. The need for the offence of scandalising the court on a small island is greater: see Feldman, Civil Liberties & Human Rights in England and Wales (1993), pp. 746– 747; Barendt, Freedom of Speech (1985), pp. 218–219.16
However, the thrust of the academic opinions referred to in Ahnee is that a lower threshold for determining whether a court has been scandalized may be appropriate in jurisdictions where the position of the judiciary is unstable and vulnerable to undue pressure from the executive or segments of the public. It can be questioned whether this is an accurate description of the situation in present-day Singapore. There is no history of civil unrest directed at the courts that threatens their operation. Singapore judges have themselves rejected accusations of being under executive influence.17 Singapore is generally regarded as having become a developed nation in the mid-1980s,18 and has a literate and well-educated population.19 There is little reason to assume that members of the public are incapable of assessing for themselves any allegations made against the judiciary.20 The second justification for preferring the ‘inherent tendency’ test relied on in Chee Soon Juan and Hertzberg is that the administration of justice in Singapore is “wholly in the hands of judges and other judicial officers”21 as they are deciders of both law and fact;22 jury trials were removed for all criminal proceedings except capital cases in 1960, and entirely abolished in
13 Chee Soon Juan, above, n 3. 14 Id at 659, [25]. 15 Above, n 2. 16 Id at 305–306. 17 See, eg, Goh Chok Tong v Jeyaretnam Joshua Benjamin [1998] 1 SLR 547 at 563, [31]–[32]; Chee Soon Juan, above, n 3 at 665–666, [50]. 18 According to Table 1 (“Human Development Index Trends”) of the United Nations Development Programme’s report Human Development Indices: A Statistical Update 2008
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1970.23 Michael Hor and Collin Seah have pointed out that if it is significant that the judge is a trier of fact, one would expect the threshold for determining if the court has been scandalized to be lower in non-jury trials in jurisdictions such as the United Kingdom. However, this is not the case – the same rules apply to both jury and non-jury trials.24 Thio Li-ann suggests the reasoning in Wain may be that since Singapore judges have a heavier responsibility as triers of both law and fact, they need greater protection from critical speech since such criticism potentially has a more damning effect on judicial reputation.25 However, in a non-jury legal system there is arguably a greater public interest in ensuring that judges remain accountable to the people. Hence, there should be greater freedom to discuss the manner in which judges carry out their functions.26
II. CONSTITUTIONALITY
It is evident that an offence that penalizes persons for speaking their minds potentially infringes the right to freedom of speech that is constitutionally protected in most democratic jurisdictions. This right is guaranteed by Article 14(1)(a) of the Constitution of the Republic of Singapore,27 which states that “every citizen of Singapore has the right to freedom of speech and expression”.28 However, the right is subject to Article 14(2)(a):
Parliament may by law impose… on the rights conferred by clause (1)(a)… restrictions designed… to provide against contempt of court…
In Chee Soon Juan, the view was taken that where the High Court and Court of Appeal29 were concerned, the restriction imposed by Parliament pursuant to the Article took the form of section 7(1) of the Supreme Court of Judicature Act30 which provided that these courts had “power to punish for contempt of court”. This was statutory recognition of the common law misdemeanour of contempt of court, and included the offence of scandalizing the judiciary. Thus, the offence could not be regarded as contrary to Article 14(1)(a).31 The constitutionality of the offence was not challenged in Hertzberg.32 Article 4 of the Constitution expressly affirms that ordinary legislation that is inconsistent with the constitutional text is void to the extent of the inconsistency. Since section 7(1) of the Supreme Court of Judicature Act was enacted to place the common law offence of contempt of
23 Andrew Phang Boon Leong, “Jury Trial in Singapore and Malaysia: The Unmaking of a Legal Institution” (1983) 25 Malaya L Rev 50 at 51. Juries have never been used in civil trials in Singapore: id at 50, n 1. 24 Hor & Seah, above, n 20 at 306–307. 25 Thio, “An ‘i’ for an ‘I’”, above, n 20 at 175. 26 Thio, ibid. See also Hor & Seah, above, n 20 at 307; Thio, “Administrative and Constitutional Law”, above, n 20 at 33, [1.94]. 27 1999 Reprint. 28 Note that the right is expressly reserved to Singapore citizens and therefore may not be availed of by foreign nationals (see Wain, above, n 8 at 398, [54]–[55]), presumably even if they have permanent residency status in Singapore. 29 The High Court is Singapore’s superior court with unlimited original jurisdiction, while the Court of Appeal is its final appellate court. 30 Cap 322, 2007 Rev Ed. 31 Chee Soon Juan, above, n 3 at 660–661, [29], citing Wain, above, n 8 at 394, [35]. 32 Hertzberg, above, n 4 at 1119, [21].
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court on a statutory footing, any such common law principles that are inconsistent with Article 14 are void. However, in Chee Siok Chin v Minister for Home Affairs,33 the High Court held that the phrasing of the exceptions to the right to freedom of assembly contained in Article 12(2)(b) – which is worded similarly to Article 12(1)(b) – means that courts cannot question whether ordinary legislation is reasonable. Rather,
[t]he court’s sole task, when a constitutional challenge is advanced, is to ascertain whether an impugned law is within the purview of any of the permissible restrictions. … All that needs to be established is a nexus between the object of the impugned law and one of the permissible subjects stipulated in Art 14(2) of the Constitution.34
The High Court came to this conclusion after comparing Article 19(3) of the Indian Constitution, which refers to “reasonable restrictions”, with Singapore’s Article 14(2)(b), which speaks only of “restrictions”. With respect, there is insufficient reason for holding that the absence of the word reasonable in the Singapore Constitution indicates that Singapore courts are not to have regard to the reasonableness of legislation as against constitutional rights. Singapore’s bill of rights is derived from the Malaysian Federal Constitution as Singapore was a state of Malaysia between 1963 and 1965. A study of relevant secondary legislative materials such as the reports of constitutional commissions,35 drafts of the Malaysian Constitution,36 and legislative debates in Malaysia and Singapore reveals a distinct lack of evidence as to why the word reasonable was omitted from the Malaysian predecessor of Article 14(2)(a). Since the fundamental liberties in a constitution should be interpreted generously and not in a manner that curtails rights unless the legislature has unambiguously expressed its intention to do so, it cannot conclusively be said that Parliament intended to deprive the courts of the discretion to consider the rationality of statutory restrictions on free speech. Another way of interpreting the Article, which is more consonant with the right to freedom of speech, is that the Constitution’s framers found it unnecessary to state that limitations imposed on the right had to be reasonable since it is inherent in rights interpretation that the judiciary must assess the reasonableness of such limitations.37 I submit that the ‘inherent tendency’ test does not meet the standard of rationality required by Article 14. First, when the test is applied, it does not matter whether there is any truth in the utterance by the alleged contemnor.38 A court may convict so long as it takes the view that the utterance poses some hazard, even if slight, to the administration of justice. This approach
33 [2006] 1 SLR 582, HC (Singapore). 34 Chee Siok Chin, above, n 33 at 601, [45]–[46]. 35 Report of the Federation of Malaya Constitutional Commission (Chairman: Lord Reid) (London: HMSO, 1957); Report of the Constitutional Commission, 1966 (Chairman: Wee Chong Jin CJ) ([Singapore: Printed by the Government Printer], 1966). 36 Eg, the Proposed Constitution of Federation of Malaya (Kuala Lumpur, Malaysia: Printed at the Government Press by G A Smith, Government Printer, 1957) at 4. 37 See Hor & Seah, above, n 20 at 298; Michael Hor, Case Note, “The Freedom of Speech and Defamation: Jeyaretnam Joshua Benjamin v Lee Kuan Yew” [1992] Sing J Legal Studies 542 at 544–549, particularly 547. 38 Unlike the law of defamation, justification is currently not a defence to the offence of scandalizing the court in Singapore: Hertzberg, above, n 4 at 1121, [23], citing Chee Soon Juan, above, n 3 at 665, [47].
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seems apt to create the impression that the court is more concerned with suppressing criticism to avoid trouble than investigating if the criticism is justified. Moreover, by finding too easily that an utterance amounts to contempt, the court may inadvertently give it undeserved credence.39 Hertzberg gave two reasons for preferring the ‘inherent tendency’ test: it does not require detailed proof of what will often be unprovable – that public confidence in the administration of justice really was impaired by the relevant publication; and it enables the court to intervene before any impairment of public confidence in the administration of justice actually occurs.40 These reasons, which were mentioned in a 1987 report on contempt of court by the Australian Law Reform Commission (ALRC),41 are problematic. Tests that are stricter than the ‘inherent tendency’ test, such as the ‘real risk’ test, do not require proof that public confidence in the administration of justice has actually been impaired, only that there exists a genuine and substantial risk that it may be affected. Since the offence is established by showing the existence of risk and not its eventuation, the court is not required to wait till public confidence in the administration of justice has already been impaired. The ALRC also pointed out counterarguments to the above reasons, notably that the ‘inherent tendency’ test “inhibits freedom of expression… to an unjustifiable degree, because criminal liability is imposed without it being necessary to establish that the community, or any institution or person within it, has been harmed or put in jeopardy in any significant way”.42 In addition, since the test opens the door to courts clamping down on conduct or speech that may not be significantly harmful, this infringes the principle that prior restraints on publication are only justifiable on the most compelling grounds.43 The law frowns upon prior restraints as they have an inhibiting or ‘chilling’ effect on speech, causing people to censor themselves which leads to potentially valid criticism not being articulated.
III. ‘REAL RISK’ OR ‘CLEAR AND PRESENT DANGER’?
If the ‘inherent tendency’ test is inconsistent with the right to freedom of speech and expression, what alternatives are there? We have already encountered the ‘real risk’ test, which requires a genuine and significant risk – certainly much more than a “remote possibility”44 – that the administration of justice will be adversely affected. In the United States the offence of scandalizing the court is unknown,45 but in Bridges v California,46 which involved a contempt of court action for comments relating to pending litigation, the Supreme Court
39 Hor & Seah, above, n 20 at 310. 40 Hertzberg, above, n 4 at 1125, [33]. 41 The Australian Law Reform Commission’s report Contempt (Report No 35) (Canberra: Australian Government Publishing Service, 1987) at 247–248, [427], cited in Hertzberg, ibid. 42 ALRC, Contempt, id at 248, [428]. 43 Id at 248, [429], citing Waterhouse v Australian Broadcasting Corporation (1986) 68 ALR 75, HC (Aust). 44 Times Newspapers, above, n 11 at 298–299, citing R v Duffy, ex parte Nash [1960] 2 QB 188 at 200; Hertzberg, above, n 4 at 1125, [33]. See also Mamabolo, above, n 11 at 68, [45]. 45 Bridges v California 314 US 252 at 287 (1941) per Frankfurter J (dissenting in part), Stone CJ and Roberts and Byrnes JJ concurring: “Some English judges extended their authority for checking interferences with judicial business actually in hand, to ‘lay by the heel’ those responsible for ‘scandalizing the court’, that is, bringing it into general disrepute. Such foolishness has long since been disavowed in England and has never found lodgment here.” 46 Bridges, ibid.
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adopted an even higher standard – the ‘clear and present danger’ test, which requires that “the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished”.47 This test was applied to the offence of scandalizing the court by two of the three majority judges of the Ontario Court of Appeal in R v Kopyto.48 In Bridges, the ‘clear and present danger’ standard was justified on the basis of the history of the United States Bill of Rights: “No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed. … [T]he only conclusion supported by history is that the unqualified prohibitions laid down by the framers were intended to give to liberty of the press, as to the other liberties, the broadest scope that could be countenanced in an orderly society.”49 North of the border, Cory JA accorded the right to freedom of expression in section 2(b) of the Canadian Charter50 the exalted status given to it in the United States. The Charter was intended to effect a decisive break with the past.51 Hence, despite the right being expressly subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”,52 the judge commented that “it is difficult to imagine a more important guarantee of freedom to a democratic society than that of freedom of expression”; therefore, it should be restricted “only in the clearest of circumstances”.53 As with Canada, the introduction of a bill of rights into Singapore was intended to establish a new legal order. Under the common law, the rights enjoyed by the people were the residual liberties remaining after their freedom of action had been restricted by statutes. The bill of rights that came into force tasked the judiciary with the responsibility of determining if statutory provisions are consistent with fundamental liberties, and striking down those that are not. However, unlike Canada, Singapore courts have not endorsed the view that free speech should be accorded pre-eminence among the fundamental liberties guaranteed by the Constitution. Rather, they have emphasized the continuity of the ordinary law before and after the Constitution’s commencement.54 I cannot agree with the proposition that laws pre-dating the Constitution must be taken to be consistent with it. But I accept that the balance struck by the Singapore Constitution between rights and other interests sought to be protected by the government may not the same as that in Canada and the United States.55 Like the Canadian Charter, the Singapore Constitution explicitly permits legislative limitations on the right to freedom of speech and expression, in particular to provide against contempt of court. This suggests that the right is not intended to be paramount over other interests. It remains to be seen whether the judiciary’s opinion of the importance of free speech will evolve and align
47 Id at 263 per Black J for the majority. See also Pennekamp v Florida 328 US 331 (1946) at 1031, SC (US); Craig v Harney 331 US 367 at 376 (1947), SC (US); Wood v Georgia 370 US 375 (1962), SC (US); H[arry] E Groves, “Scandalizing the Court – A Comparative Study” (1963) 5 Malaya L Rev 58. 48 R v Kopyto (1987) 47 DLR (4th) 213, per Goodman and Cory JJA. 49 Bridges, above, n 45 at 265. 50 The Canadian Charter, s 2(b), reads: “Everyone has the following fundamental freedoms: … (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication…” 51 See, for instance, R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 at 359, SC (Can), cited in Kopyto, above, n 48 at 224. 52 Canadian Charter, s 1. 53 Kopyto, above, n 48 at 226–227. 54 See, eg, Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1990] SLR 38, CA (Singapore); Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992] 2 SLR 310, CA (Singapore). 55 Compare Radio Avon, above, n 11 at 234; Mamabolo, above, n 11 at [40]–[41].
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itself with the attitude of the North American courts. When that happens, it will be appropriate to prefer the ‘clear and present danger’ test to the ‘real risk’ test. In the meantime, for the reasons mentioned, I contend that Article 14(1)(a) of the Singapore Constitution requires the rejection of the present ‘inherent tendency’ test in favour of at least the ‘real risk’ standard.
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Kelsen, Constitutions, Coup d’Etats and Courts
Tayyab Mahmud Seattle University School of Law United States
Orderly transfer of power contemplated by the constitutional order is often the exception rather than the norm in many postcolonial societies. A change of government often issues from the threat or use of force against the incumbent regime by the armed forces of the country, a coup d'etat. Since an incumbent regime forms part of the constitutional order, its extra-constitutional overthrow is not only illegal but amounts to the high crime of treason. A successful coup d'etat raises some complex legal questions. Are perpetrators of coups d'etat guilty of treason? Should (or can) they be tried and punished for the high crime? Does the constitutional order survive a coup d'etat? What is the constitutional foundation of a regime born of a coup d'etat? What is the source of validity, legitimacy, and legislative power of an extra-constitutional order? Can the courts validate usurpation of state power?
Judicial responses to these questions in postcolonial settings have often relied upon Hans Kelsen's theory of revolutionary legality to validate coups d’etats. This includes the Dosso Case of Pakistan 1958, the Matovu Case of Uganda 1966, the Madzimbamuto Case of Southern Rhodesia 1968, the Valabhaji Case of Seychelles 1981, the Mitchell Case of Grenada 1986, the Mokotso Case of Lesotho 1988, and the Matanzima Caseof Transkei 1988. This essay argues that the use of Kelsen’s theory as a rule of decision in judicial evaluation of extra-constitutional usurpation of political power is seriously falwed.
1. Kelsen and Coup d'Etat
Kelsen's theory of revolutionary legality seeks to answer when and under what circumstances one legal system ceases to exist and a new one is created in its place. Kelsen's response is that the "State and its legal order remain the same only as long as the constitution is intact or changed according to its own provisions." (Kelsen 1961: 368-9) Kelsen holds that this "principle of legitimacy . . . fails to hold in the case of a revolution," because "it is never the constitution merely but always the entire legal order that is changed by a revolution," with the result that all norms of the old order are "deprived of their validity by revolution and not according to the principle of legitimacy." (Id.: 117-8) In the wake of a coup d'etat, "[e]very jurist will presume that the old order--to which no political reality any longer corresponds--has ceased to be valid . . . . " (Id.: 118) If the revolutionaries "succeed, if the old order ceases, and the new order begins to be efficacious, because the individuals whose behavior the new order regulates actually behave, by and large, in conformity with the new order, then this order is considered as a valid order." (Id.) In his "attempt to make explicit the presupposition on which these juristic considerations rest," Kelsen finds that “the norms of the old order are regarded as devoid of validity because the old constitution and, therefore, the legal norms based on this
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constitution, the old legal order as a whole, has lost its efficacy; because the actual behavior of men does no longer conform to this old legal order. . . . The principle of legitimacy is restricted by the principle of effectiveness.”(Id.: 118-9)
Kelsen's theory assumes the identification of the state with the legal order, with their foundations rooted in the constitution. As his theory rests upon the "operative premise . . . that the positive and deliberate destruction of the foundation of the legal order presumes the intention to found a new state, a new sovereignty," (McIntosh : 5) it precludes any distinction between a revolution and a coup d'etat. While he recognizes that coups d'etat do not result in actual replacement of the legal system, and "only the constitution and certain laws of paramount political significance" are suppressed, while "[a] great part of the old legal order 'remains' valid,"( Kelsen 1961: 368) he is constrained to treat their legal implication as being the same as those of a revolution. This places his theory out of step with the reality of coups in post-colonial societies that do not aim at destruction of the entire legal order, but only at usurpation of political offices.
2. Kelsen's formal juridical conception of the state is fallacious
Kelsen's postulates rest on a narrow, formalistic, and juridical conception of the state, whereby concepts of "state," "legal order," and "constitution" become fused. It is this fusion which leads to statements that the state and its legal order remain the same only as long as the constitution is intact or changed according to its own provisions. Kelsen's is "a highly restrictive view of the State as the expression of the logical completeness and inner consistency of the system of legal norms."Dyson: 9) This conception of the state as a structure of legal norms is a purely juristic and formal one. It fails to take account of those social factors that condition the nature of particular states and legal orders in specific settings, and reflects legal positivism's lack of philosophical concern with moral questions that are at the very heart of the issue of legitimacy of any legal order or a state.
The nature of a particular state cannot be determined in isolation from civil society. Formal juridical conceptual divisions between the state and civil society, and the corresponding division between the public and the private spheres, only mask the mutually conditioning relationship between the two. The nature of the civil society conditions the forms that the state assumes within its midst, and the state, in turn, conditions the civil society by its very existence, structure, and functions. (See Mahmud) Furthermore, the function of the state is not exclusively a coercive one. Ideological and normalizing functions are the primary functions of a modern state, whereby the state and civil society necessarily overlap. The concept of the state is open-textured, making it susceptible to a multiplicity of usages. Any purely juristic explanation of the state is, therefore, an unavoidably abstract postulation of the quintessential form of the state of which actual states are particular manifestations. Even if one begins with the premise that a sovereign state exists "where there is an authority [in a defined territory], which fixes the norms of all law, and beyond which, in the search for the origin of such norms, we cannot go," (Laski: 238) the concept of a state remains a theoretical construct; a formal conclusion one may draw about a society in a defined territory where certain conditions obtain.
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However, the society, loosely defined as a group of human beings living and working together for the satisfaction of their mutual wants, remains indispensable to one's understanding of the nature of the state. Kelsen's theory of the state and revolution remains blind to this imperative.
While examining Kelsen's identification of law with the state and of the state with coercion, it is helpful to refer to the critique of Kelsen's discontinuity thesis advanced by J. M. Finnis. For Finnis, legal systems are not simply systems of rules, but sequences, or successive sets of rules, ever changing and cohering in what society accepts as a continuous system not by virtue of any perennial grundnorm or rule of recognition, but as a function of the existence of society itself, which is an organic structure responding to laws of growth, change, and decay analogous to those governing the individual organism. Consequently, he argues that "a revolution is neither a necessary nor a sufficient condition for anything that should be described as a change in the identity of the state or the legal system." (Finnis 1970:75) Accordingly, both the state and the legal system can be deemed to survive a revolution without implying the invalidity of all of a revolution's dispositions in areas conventionally regulated by law. However, Finnis argues that justice has other demands, so that "sometimes the character of a revolution is such that allegiance to the revolutionary order of society is unreasonable," and the reasonableness that forms the basis of his society- oriented, non-formalistic approach, is "the reasonableness of justice and philia politike, which demand legal coherence and continuity and respect for acquired rights." (Id.: 76) In order to appreciate Finnis' continuity of law thesis, it is important to bear in mind that for him the central meaning of law is of an authoritative common ordering of a community that facilitates the realization of the common good. While he concedes that "stipulations of those in authority have presumptive obligatory force," he argues that if a ruler uses authority to make stipulations "against the common good, or against any of the basic principles of practical reasonableness, those stipulations altogether lack the authority they would otherwise have by virtue of being his." (Finnis 1980: 359-60)
While for Kelsen the law is always concerned with coercion, for Finnis it is primarily aimed at facilitating the realization of the common good. The central difference between the two is that, while Kelsen equates the legal order with the state, Finnis identifies the legal order with the society. Although Finnis correctly points out the Kelsenian fallacy of focusing on the state to the exclusion of society, Finnis' own fallacy lies in his focus on the society to the exclusion of the state. My position is that recognition of the essentially interlinked and interdependent nature of the state and civil society is indispensable to the appreciation of the distinction and tension between the concepts of the legitimacy and the validity of a legal order. This distinction is critical to formulating an appropriate judicial response to coups d'etat.
3. Kelsen proffers a theory of law not a rule of decision
It is charged that "Kelsen's theory is betrayed, on its own terms, if it is put to normative use as a practical principle for guiding judicial decision and action."(Finnis & Gould: 53-4) This is primarily because Kelsen's doctrine is not capable of judicial application, the grundnorm being simply a hypothesis. Kelsen has himself contributed to this confusion. On the one hand, he takes the position that jurisprudence is not a source of law, but on the other, he asserts that
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"[w]hat sociological jurisprudence predicts that the courts will decide, normative jurisprudence maintains that they ought to decide."(Kelsen 1961: 172) The later statement has led to the understanding that Kelsen's theory "implies that a judge is under a legal duty . . . to accept successful revolutions . . . [and] this duty is not outweighed by any general legal duty of constitutional loyalty."(Harris:132) The problem is that the adoption of Kelsen's theory by judges does away with the essential distinction between judges and legal theorists. It disregards the fact that "accounting for or explaining such continuity or discontinuity is not an empirical task of identifying the continuance or discontinuance of individual (positive) rules of law, but is more appropriately conceptual in nature." (McIntosh: 6)
John Finch rightly asserts that misconceptions of Kelsen's theory are attributable, among other things, "to a confusion of the two senses of the word constitution . . . . In particular, the constitution in the positive legal sense has been taken for the basic norm, which it is not." (Finch: 112) The courts that adopted Kelsen's theory to validate coups d'etat generally treated grundnorm and the constitution synonymously. This facilitated treatment of Kelsen's position about the theoretical concept of grundnorm as directly applicable to the status of the constitution.
In Kelsen's theory, however, there is a sharp distinction between the two. The grundnorm is the reason for the validity of the constitution as seen by legal science; it is not the constitution itself. The grundnorm lies outside positive laws and norms; it is a presupposition made in the interest of legal science. Even though presupposed, the grundnorm has no independent status; it always refers to a specific constitution. Furthermore, the grundnorm is not prescribed by Kelsen's "pure theory." To prescribe it would be to make laws, and "pure theory" cannot create a law on its own account; only those authorized to do so by the legal system can do that. Kelsen's "pure theory" is concerned only with intellectual coherence in legal analysis. It is a descriptive theory, not a prescriptive principle of law. Kelsen refers to the grundnorm as the "constitution in the legal-logical sense" as opposed to the "constitution in the positive legal sense," and insists that these are distinct concepts, and any interpretation that would collapse the two "is without any foundation in my writings."(Kelsen 1965: 1141)
The confusion of grundnorm and constitution permitted judges in the cases mentioned above to present themselves as impartial, even scientific, fact- finders, objectively discovering and predicting efficacy. Such activity, however, is alien to the enterprise of "pure theory," which aims to describe the post-decision situation and thus cannot take part in making that decision. A decision that finds efficacy as a basis of validity is an act of norm-creation, not a presupposition of legal science. Acts of norm-creation, as Kelsen notes, may quite legitimately be politically inspired, constrained only by the need to rest the validity of the norm thus created on a higher norm. However, when the norm to be created is the constitution itself, the highest positive norm, it follows logically that the requirement of a higher norm is absent. At this point, the decision is entirely political, and therefore outside the province of adjudication.
Grundnorm is a hypothesis, presupposed in juristic thinking to serve certain logical purposes. It must not be identified with any real norm or socio- political phenomenon. The grundnorm is
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only a postulate of reason--a Kantian transcendental--and accords no ontological status to the legal order it supposedly validates. Even if the basic norm is a necessary condition of our knowledge that valid norms exist, it is not itself a "real" norm. The basic norm, lacking specific content, is nothing but a presupposition of any legal order, subject only to the condition that the order is an effective, actual legal order. Being a hypothetical postulate of reason, the grundnorm cannot establish the legal order's validity, for it is only after we have identified an actual legal order as valid that we presuppose a basic norm. But in his formal hierarchy of norms, Kelsen places the grundnorm above the constitution. While the constitution, written or unwritten, is recognized as the "highest level of positive law," it is itself validated by the presupposed grundnorm.(Kelsen 1961: 118) The troubling implication is that if the constitution, though the "highest level of positive law," is not in fact the highest norm, then the constitution's validity may be questioned like that of any subordinate law within the legal system. Resolution of this dilemma lies in the province of legal theory, not in adjudication. Consequently, Kelsen's theory cannot rightfully be used as a rule of decision in a court of law.
4. The relationship between efficacy and validity is problematic
The relationship between efficacy and validity posited by Kelsen remains elusive and problematic. The courts, in line with commentators, have understood Kelsen to ground the validity of a norm or legal order in its efficacy. Kelsen, however, insists that there is no direct cause and effect relationship between the two, and that "the efficacy of the legal order is only the condition of validity, not the validity itself."(Kelsen 1965:1139) Contrary to Kelsen's formulation that "validity is conditioned by the efficacy in the sense that a legal order as a whole just as a single norm loses its validity if it does not become by and large effective," and his "call[ing] attention to the fact that a legal norm becomes valid before it can be effective," (Id.: 1140) the postcolonial judicial practice first makes a factual finding of efficacy and then bases validity upon such a finding. Furthermore, the criteria of efficacy forwarded by Kelsen is profoundly imprecise: "A legal order is regarded as valid, if its norms are by and large effective (that is, actually applied and obeyed)." (Kelsen 1967:212) The imprecision leaves open a wide area for judicial politics. In all the cases that the new rigime was demined to be effective, the courts used different tests based on different evidentiary materials to decide the question. This singular lack of consistency lends credence to Dias' position that "[t]he truth of the matter is that effectiveness is only what the judges choose to regard as such; which places considerable power in their hands." (Dias 1968:254)
When Kelsen observes that "[t]he validity is a quality of law; the so-called efficacy is a quality of the actual behavior of men and not, as linguistic usage seems to suggest, of law itself. The statement that law is effective means only that the actual behavior of men conforms with the legal norms,"(Kelsen 1961: 39-40) he admits that efficacy depends on "those very sociological factors which he so vehemently excluded from his theory of law."(Dias 1970: 413) This in turn raises methodological and evidentiary issues about any judicial determination of "actual behavior" of people. The courts while validating extra-constitutional usurpations primarily relied upon judicial notice of so- called notorious facts and self-serving affidavits from agents of the usurpers to reach conclusions of the efficacy of coups. Evidentiary problems are
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compounded where courts undertake determination of the efficacy of the new legal order shortly after a coup d'etat because it invariably involves venturing predictions of future behavior, a task well beyond judicial competence.
There is also the problem of exclusion of reasons and quality of submission and conformity. Kelsen portrayed this as a methodological problem: "We are not in a position to say anything with exactitude about the motivating power which men's idea of law may possess. Objectively, we can ascertain only that the behavior of men conforms or does not conform with the legal norms." (Kelsen 1961: 40) This raises serious ethical and moral questions because "not only effectiveness but also conformity to morality and justice is among the very springs of [grundnorm's] being and continued life."(Dias 1968:225) Even if judges had no legal obligation to take into account the ethical and moral dimensions of the problem, "they are no more exempt from moral obligations than other officers of state in revolutionary situations. Indeed, moral obligation may weigh more heavily on them than on any other group of officers."(de Smith: 104-05) Kelsen is rightly criticized for making law and the state a composite of definitional fiats. Law, to be worthy of fidelity, must be something more than mere force. Law is not simply order; it must correspond to the demands of justice, morality, and agreed notions of what ought to be. To achieve this end, the teleology of state and law must be linked up with the fundamental project of philosophy: the human good and happiness.
Similarly, the Kelsenian teleology of efficacy and validity must be linked up with motivations and compulsions of general compliance with successful usurpations. It is "not so much whether morality or justice should count, but what counts as morality and justice."(Dias1968:255 Ignoring this question lends credence to the charge that "political quitism is the core of Kelsen's attitude." After all “[E]ven if one admits that a judge qua judge ought to accept the laws of a successful revolutionary regime, this legal duty may, in particular cases, be outweighed by other extra-legal duties. It may be outweighed by a political duty not to give support to an immoral regime or by a personal moral duty to observe a judicial oath. A revolutionary upheaval is just the sort of situation where being a good judge may have to give way to being a good citizen or a good man.”((Harris: 127)
Following the lead of the Asma Jilani Case of Pakistan 1972, some courts rejected Kelsen's equation of efficacy with validity on the ground that it excludes from consideration "sociological factors of morality and justice which contribute to the acceptance or effectiveness of the new Legal Order." Other courts modified Kelsen's efficacy test to ensure that submission of the people was the result of "popular acceptance" and the coup d'etat's "moral content," "not mere tacit submission to coercion or fear of force." Tests of validation were modified to require that "it must not appear that the [usurper] regime was oppressive and undemocratic." While the early cases, following Kelsen, had considered motivation of usurpation irrelevant, later cases took the position that "[t]he legal consequences of such a change must . . . be determined by a consideration of the total milieu in which the change is brought about, including the motivation of those responsible for the change," and "the reason why the old constitutional government was overthrown and the nature and character of the new legal order." It was further opined that each one of these considerations "raises a question of fact." But these
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modifications do not place the theory of revolutionary validity on a more sound footing. The evidentiary problems remain, as the Mitchell Court was prepared to admit.
More importantly, these consideration go towards the moral content of the right of a regime to govern and the obligation of fidelity of the governed. As such, these issues are political/moral in nature and go to the question of legitimacy, which remains beyond the purview of judiciaries and belongs in the political processes of the society at large. Since legitimacy of a revolutionary regime is not a legal issue susceptible to adjudication, the modified conditions of efficacy cannot be considered questions of fact to be pleaded and proven by the parties to the case. The error is to see the issue of legitimacy as a legal issue, hence the search for a rule of law to resolve the question. The modified conditions are not legal standards; rather, they are standards of political discourse for evaluating the legitimacy of an extra- constitutional order.
In sum, the use of Kelsen’s theory of revolutionary legality as grounds for judicial pronouncements on the validity of extra-constitutional usurpation of power is seriouslt flawed.
Bibliography:
Stanley A. de Smith, Constitutional Lawyers in Revolutionary Sitruations, 7 W. Ontario L. Rev. 93 (1968). R.W.M. Dias, Legal Politics: Norm Behind the Groundnorm, 26 Cambridge L/J. 233 (1968) Kenneth H. F. Dyson, The State Foundation in Western World (1980) John D. Finch, Introduction to Legal Theory (3rd ed 1979) John M. Finnis & B.C. Gould, Constitutrional Law, in Annual Survey of Commonwealth LKaw 1972 (H.M.R. Wade ed., 1973)
John M. Finnis, Revolutions and Continuity of Law, in Oxford Essays in Jurisprudence 23 (A.W.B. Simpson ed. 2nd ed. 1978). John M. Finnis, Natural Law & Natural Rights (1980). J.W. Harris, When and Why Does the Grundnorm Change?, 29 Cambridge L.J. 103 (1971). Hans Kelsen, General Theory of Law and State (Anders Wedberg trans., 1961). Has Kelsen, The Pure Theory of Law (Max Knight trans., 1967) Hans Kelsen, Professor Stone and the Pure Theory of Law, 17 Stanford L. Rev. 1128 (1965) Harold Laski, Studies in Law and Politics (1932). Simeon C.R. McIntosh, Continuity and Discontinuity of Law: A Reply to John Finnis, 21 Connecticut L. Rev. 1 (1988).
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Hybridization: A Study in Comparative Constitutional Law
John McEldowney, Professor of Law University of Warwick United Kingdom
Overview
Viewing constitutional law from a global perspective informs us about trends and concurrences that might otherwise go unnoticed. The main focus for this paper is how a new European legal tradition is being forged from two of the most influential Western traditions, the common and civil law. The term hybridization is used to refer to this phenomenon whereby there is convergence between different legal systems. In the first instance this hybridization was driven by private law. This has now given way to a European Administrative Law with important constitutional consequences, particularly for the role of courts and institutions. The hybridisation process in the European Union provides an important example for comparative law. It holds lessons for the study of constitutional law and its analysis in a broader global environment
Historical Beginnings: Convergence and Divergence in Comparative Law
It has already happened in European legal history that diffusion and convergence has led to the hybridisation of ideas that later formed basic legal doctrines. Assimilation and merger were significant influences in the transformation of the law of contract. James Gordley’s, The Philosophical Foundations of Modern Contract Doctrine1 shows how underlying the common law and civil law systems are many similarities in terms of legal concepts and doctrinal structures. Contract law is a good example because it transposes national boundaries and is primarily driven by economic forces that in turn may influence legal rules. David Ibbetson2 traces the emergence of the law of restitution by noting how trade in the modern world was largely through the contract of sale. In the early medieval European world while sales were important, the transfer of reciprocal gifts by both parties was more significant. The mark of a relatively undeveloped economic system, gifts became a simple trading device that spread throughout the trading world and eventually found source in the early written laws in Norway and Sweden. Finding legal form took time. The use of oaths became common place and various forms of pledges or tangible objects allowing the debtor and creditor to rely on promises took root. Sharing common obligations or experiences was also frequently used in creating a bond or reliability. Writing down such agreements took time but may be traced back to the middle of
1 James Gordley, The Philosophical Foundations of Modern Contract Doctrine Oxford: Oxford University Press, 1991 2 David Ibbetson, An Historical Introduction to the Law of Obligations Oxford: Oxford University Press, 2001
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the second century AD. The law distinguished between obligations that arose of some wrongdoing (delict) as distinct from contract (as it then became). Justinian’s Institutes catalogued various wrongs and also various contractual obligations. As the English common law took shape it fell under many influences – specifically borrowing from Roman law and at time assimilating ideas and writings – filling in gaps and fitting changes in the rules to modern circumstances. Adaptation and change; removing anomalies and inconsistencies; responding to new ideas and recognising changing economic circumstance were all at work. One remarkable part of changing circumstances was the codification movement in evidence from the 18th and 19th centuries in England. This ambition is still to be realised in the present century but it is evidence of the influence of continental and codified systems3 on the common law. In the last century the Uniform Commercial Code composed of restatements, model codes and co-operation through uniformity of practice took shape in the United States “ to provide an orderly statement of the general common law of the United States”. In effect the Commercial Code created harmonisation and simplification that overrides many local exceptions and practices. In Europe, it is through the European Union that many private law ideas embracing unification and harmonisation have taken shape. There are some countries that have created hybrid legal systems – Japan is one example where early Chinese influences that created a Japanese common law have given way to late 19th century codes drawn from France and Germany. After the Second- World War Japan’s constitution drew on many Anglo-American values that are accompanied by Western attitudes to law and legal issues.
The European Union and a common European Legal Culture
The European Union offers an example of how idealism and ideas may be transposed into operating doctrines and principles. Hybridisation is at the heart of this endeavour. Underlying this are certain assumptions including that there is a common set of principles and concepts that are genuinely on offer to all Member States; that ultimate codification or assimilation is desirable and achievable and finally that despite national and cultural differences, a common European legal culture will dominate. This has led to an intense debate between euro-sceptics and pro-euro enthusiasts. In terms of the future direction and debate the pros and cons of Europe under a unified legal system are being challenged and discussed. Yet the evidence suggests that much has already taken place to bring into existence a European private law4. There is currently a movement in favour of a European Civil Code or more precisely a Code of Contract law. The Common Frame of Reference currently being developed is an example of the methodology used to bring together different sets of assumptions and create general rules and principles in a single document. The idea is to provide some general restatement of the law containing legal principles, rules and guidance for interpretation and supplementary notes. This is largely juridical in form and is practical rather than theoretical or academic. The unity of the European Union may not be taken for granted and despite differences in perspectives
3 See Oreste Pollicino, “The New Emerging Judicial Dynamics of the Relationship between National and the European Courts after the Enlargement of Europe” Jean Monnet Working Papers (2008). 4 Jan M. Smits, ”Convergence of Private law in Europe: Towards a new ius commune?” in Orucu and Nelken ed., Comparative Law: A Handbook Oxford: Hart 2007.
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considerable progress has been made spanning different sectors from government led initiatives to private sector input and from non-governmental institutions or private individuals. There is a long historical legacy that goes back to the codification movement which has met with varying degrees of success. There are many examples where the EU has addressed issues common to its’ Member States. In the development of the financial service industry there is the Lamfalussy Process permitting the EU Parliament and Council to adopt legislation containing core values and guidelines that allow specific regulators to coordinate and enforce common rules and procedures in each of the Member States. Another example is the development of EU administrative law5, also with common procedures and principles. There is also a Social Justice Study Group intent on advancing common rules and procedures. The aim in all these projects is to provide an inclusive method of agreeing common principles even though in many Member States there is resistance to replacing too much national legislation with EU law. Taken together this represents a varied and diverse approach in competition and consumer law particularly, which may ultimately form a common law of Europe. As Zweigert and Kötz recognise: Comparative law must go beyond national systems and provide a comparative basis on which to develop a system of law for all Europe; it can do this by taking particular areas of law such as contract, tort, credit arrangements, company law and family law and showing what rules are generally acceptable throughout Europe and whether they are developing on convergent or divergent lines6.
This may result in a European Civil Code, though this will depend on the political and practical considerations of its application. It is inevitable that constitutional questions will arise – for example different forms of accountability; good decision making and how Member States and the EU are best able to make decisions. At the heart of such questions lies the fundamental role of the European Court of Justice and how judges are able to engage within an adequate constitutional framework.
Human Rights as a dominant force
It is unsurprising that human rights have become a dominant influence in shaping hybridization7. There is a universal sense that the theory and practice of human rights is an important basis for development. The Universal Declaration of Human Rights and various related international conventions are fundamental. Human rights and principles of democracy have provided enormous influence in post-independence constitutional developments in many countries. In the United Kingdom, the Human Rights Act 1998 has become a pivotal part of the common law. In the European Union, the European Court of Justice (ECJ) in Luxembourg has had to consider how within the EU human rights are best considered. Most Member States follow the European Convention on Human Rights and the European Court of Human Rights at
5 Paul Craig, EU Administrative Law Academy of European Law: 2006. 6 K.Z. Zweigert and H. Kötz, An Introduction to Comparative Law Oxford: Oxford University Press, 1998 3rd edition p.29-30. 7 A.W. Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention Oxford: Oxford University Press, 2001
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Strasbourg. There is a potential for the two courts to integrate and come to a common understanding on rights. Initially the EC institutions did not address human rights directly. Gradually, however, the ECJ began to develop its own strategy despite initial resistance to using human rights to interpret Treaty provisions8. This has gradually given way to a more liberal recognition of rights that are common to the various Member States9. Rights are considered consistent with the overall objectives raised by the European Community. In this approach there is a degree of deference to national courts. In Bosphorous v Ireland 10 the ECJ accepted that adequate protection had been afforded through the Irish Supreme Court and it was unnecessary to go beyond the protections within the Member State provided that they were adequate. What has been less clear is the extent to which Treaty making arrangements within the EU will advance human rights. The Maastricht Treaty failed to settle this matter. The Treaty of European Union provided that human rights (Article 6(2) EU) were a fundamental principle of EU law and that within the fields of Justice and home affairs there should be a human rights dimension. Nevertheless within the interpretation of Community law, the ECJ developed principles have a human rights resonance. Proportionality, equality and fairness were interpreted as part of the nature of the Communities. The Treaty of Nice moved the agenda to the next stage by providing a Charter of Fundamental Rights of the European Union, drafted in June 1999.The result was a common commitment as a Declaration of 15 personal representatives of the Heads of State or Government of the Member States and 16 members of the European Parliament and 30 members of national parliaments. The Charter containing 53 articles makes fundamental rights and freedom central to the EU citizen. In March 2007 the EU Agency for Fundamental Rights was established as an Agency of the EU. This is to provide advice and assistance to EU institutions and to support human rights. Taken together these steps represent important and significant stages in the development of EU law catalysed by the recognition of human rights. The hybridization process is continuous and likely to provide greater integration of legal rights into the different legal cultures in Europe
Conclusions
Sharing analytical ideas that may be used in a global setting is a dominant influence in approaching legal problems. Particularly suited to this approach are issues associated with climate change, the application of sustainable development and more recently issues connected with financial regulation. War and economic emergencies are also part of an on- going debate on accountability and measures to prevent or deter corruption. Systems of regulation and criteria of effectiveness need to be considered for achievable objectives within the constitutional framework. Comparative law faces many challenges when confronted by such issues. It must be rooted in an understanding of different legal techniques and analysis; it must be capable of comparing and analysing different procedures and legal cultures and it must be capable of providing a critical analysis of what works best and why. Evaluating constitutional
8 See Case 4/73 Nold [1974] ECR 491 9 Case C-94/00 Roquette Frères [2002] ECR I-90II also see Chappel v UK (1990) 12 EHRR 1 and Casey v UK (1991) 13 EHRR 189 also Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125. 10 Bosphorus v Ireland (2006) 42 EHRR 1
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strengths and weaknesses requires an understanding of what accountability means. Distinctions between legal, economic and political forms of accountability need to be distilled in a way that reflects the changing dynamics of legal understanding of the comparative law of human rights. Hybridization – a process of operating convergent and even divergent ideas is commonly at work. The European Union affords a glimpse of how different processes combine to bring hybridization to reality. While policy is central to the work of the European Commission, implementation is devolved to many agencies, institutions, networks and contracting parties within Member States. There is no single overriding method; different layers of administration and structures have to be adapted in the process. There are, however, common themes that emerge. In many instances the main operating influences have come from the judiciary. In the United Kingdom the values of the rule of law are often called in aid of an analytical approach to rights. It is striking how within the European Union civil and common law methodologies are increasingly intertwined. In the United Kingdom the traditional oral approach to presenting cases has been carefully incorporated into a case management system for civil and criminal courts that pays increasing attention to affidavits and written skeleton arguments. Conversely in many civil law countries, particularly France there is an increasing recognition of the values of oral argument and presentational issues and as enlargement of the European Union takes place Eastern and Western European legal systems come together. There is a “judicial dialogue “ at work between the differing judicial values of the new entry countries and the common identity found in the European Courts in Luxembourg and Strasbourg. This encompasses the scope of EU law and also the increasing role of human rights.
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The Roles of International Human Rights Norms in Comparative Constitutional Jurisprudence: CEDAW-Based Examples
Martha I. Morgan Robert S. Vance Professor Emerita of Law University of Alabama School of Law USA
In recent years constitutional law professors from around the world have been pondering how best to incorporate both comparative and international materials into their domestic constitutional law classes. Similarly, many of us have been seeking ways to make our courses more gender-sensitive. One way to accomplish all these goals is use the example of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to introduce students to the roles that international human rights norms play in different constitutional systems. The most obvious uses of CEDAW are in the area of gender equality. CEDAW has played an important role in the drafting, reform, and judicial interpretation of the gender equality provisions in domestic constitutions in many countries.1 Brazil, Colombia and South Africa provide good examples of how contemporary founding mothers and their supporters have used CEDAW at the drafting stage. Costa Rica, France and Argentina offer useful illustrations of how CEDAW has contributed to constitutional reform efforts. And the growing body of CEDAW- influenced constitutional jurisprudence from around the globe provides rich opportunities to expand coverage on judicial understandings of principles of equality and non-discrimination. But CEDAW can also be used to provide a context for examining topics other than gender discrimination. For example, it can be used to concretize discussion of issues related to the hierarchical status of constitutional and international law in domestic legal systems and exploration of questions about whether international treaty provisions are self-executing or require implementing legislation to become domestically applicable and enforceable. Jurisprudence invoking CEDAW also offers interesting practical illustrations of differing views on the roles that international human rights norms should play in constitutional interpretation. CEDAW’s impact in particular countries has been affected both by the rank that international human rights treaties occupy in the internal hierarchy of law and by whether such treaties are deemed self-executing once ratified. Many constitutions refer to international human rights treaties and conventions as having preeminence over internal law, without any further specification (see Art. 93 of the 1991 Constitution of Colombia, Art. 7 of the Costa Rican Constitution and Art. 46 of the Guatemalan Constitution). This type of language lends itself to the interpretation of international human rights law as having supra-constitutional status. In addition, in many countries, particularly those with civil law systems, once ratified international
1 See, e.g., Ruth Rubio-Marín and Martha I. Morgan, Constitutional Domestication of International Gender Norms, in Gender and Human Rights (Karen Knop, ed. Oxford University Press, 2004). This paper draws on this and other earlier writings and talks on CEDAW.
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human rights treaties are deemed self-executing or immediately applicable without the necessity of implementing legislation or regulations. In Costa Rica, for example, the Constitutional Chamber of the Supreme Court has expressly sanctioned both the supremacy and immediate applicability of human rights treaties.2 Section I, Article 7 of the Costa Rican Constitution expressly incorporates international human rights treaties and conventions ratified by Costa Rica and declares them to have authority “superior to the laws.”3 The Constitutional Chamber of the Supreme Court has interpreted Article 7 as incorporating and according supra-constitutional status to international human rights conventions ratified by Costa Rica and as making them self-executing.4 A 1993 opinion explained the hierarchy in these terms: “human rights instruments applicable in Costa Rica have not only a value similar to the Constitution, but to the extent that they grant greater rights or guarantees to the people, they prevail over the Constitution.”5 Article 7 has opened the door to the constitutional recognition of broad concepts of gender equality under several important international documents that Costa Rica has ratified, including the Inter-American Convention on Civil Rights for Women and the Inter-American Convention on the Political Rights of Women (both ratified by Law No. 1273 of March 13, 1951), the Convention on the Political Rights of Women (ratified by Law No. 3877 of June 3, 1967), the Convention on the Elimination of All Forms of Discrimination Against Women (ratified by Law No. 6969 of October 2, 1984), and the Belen Lo Para Inter-American Convention to Prevent, Punish, and Eradicate Violence Against Women (ratified by Law No. 7499 of May 2, 1995). The Constitution of Argentina takes a somewhat different approach. Article 31 follows Article VI of the United States Constitution and provides that the constitution, national laws, and treaties are the supreme law of the nation. Article VI of the U.S. Constitution is interpreted as according treaties the same status as federal laws. However, following the 1994 amendments to the Argentine Constitution, its Article 75 (22) generally accords treaties and conventions supra-statutory status and lists ten specific human rights documents (including CEDAW) that are accorded constitutional status. Other human rights treaties and conventions approved by the Argentine Congress require a separate vote of two-thirds of the members of each legislative chamber to enjoy this constitutional status. CEDAW can also provide a contextual setting for looking at different approaches to the interpretive uses of international human rights treaties. Some constitutions contain express provisions referring to human rights treaties as valid sources for the interpretation of relevant constitutional rights. Other constitutions contain no such express rules but have been interpreted as requiring or permitting such interpretive use. These interpretive rules, whether
2 In Colombia, the Constitutional Court first reached a similar conclusion but later changed course and interpreted article 93 as according constitutional status to international human rights law. 3 Importantly, Article 48 of the Costa Rican Constitution provides that all persons have right to file an amparo action in the Constitutional Chamber of the Supreme Court to maintain or reestablish the enjoyment of rights granted in the constitution, as well as those fundamental rights established in international human rights instruments applicable in the country. 4 The Constitutional Chamber has also recognized that interpretations of the Inter-American Court of Human Rights, whether in contentious cases or consultative opinions, have the same value as the norm interpreted. Voto No. 2313-95. 5 Voto No. 5759-93.
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express or implied, have provided another route for the use of CEDAW in domestic constitutional interpretation. For instance, the Spanish Constitution contains an express interpretive rule in its Article 10. 2 which provides: “the norms related to the fundamental rights and liberties which the Constitution recognizes shall be interpreted in conformity with the Universal Declaration of Human Rights and the treaties and international agreements on these matters ratified by Spain.” 6 It is not surprising that some of the countries with such express interpretive provisions are among those whose courts have been more prone to rely on international instruments when interpreting their national constitutions.7 Sometimes the reference to international law contained in the constitution is a more generic one, which the courts then use to develop an interpretive rule. For instance, this has been the case in India where Article 51c of the Constitution (situated among the Directive Principles of State Policy) provides that "the State shall endeavor to...foster respect for international law and treaty obligations in the dealings of organized people with one another." Article 51c’s mandate has been relied upon by the Indian Constitutional Court to impose a duty on courts “to give due regard to International Conventions and Norms for construing domestic laws, especially when there is no inconsistency between them and there is a void in domestic law”.8 Finally, there are countries where the interpretive value of international instruments is not explicitly sanctioned in the constitution and relies, instead on jurisprudential construction of what we could call interpretive presumptions or through judicial use of international norms or jurisprudence as of persuasive or contextual value. Importantly, this is the case in Australia. Although the Australian Constitution does not include a declaration of fundamental rights or bill of rights, Australian Courts have used several methods to facilitate the incorporation of international norms into Australian law. Of interpretive value is the doctrine of legitimate expectations, according to which there is a presumption that the public authorities will act in accordance with international conventions even when the treaty has not been incorporated into domestic law. This doctrine has been used to found legitimate expectations regarding the conduct of the Executive9 and to determine the relevant interpretation of a certain statute.10
6 See also art. 93 of the Colombian Constitution and art. 39.1 of the South African Constitution. 7 Heyns & Viljoen, ‘The Impact of the United Nations Human Rights Treaties on the Domestic Level’, 23 Human Rights Law Quarterly (2001) 483 (findings and recommendations of study initiated in 1999 of six UN human rights treaties, including CEDAW in 20 different countries). Heynes and Viljoen found that the Colombian Constitutional Court has an exceptional record of reference to the treaties (in 129 cases between 1992 and 1998 it has based their decisions on the ICCPR) Heynes &Viljoen, supra note 6, at p. 502. Spain is also listed among other countries where domestic courts make frequent interpretive references to international human rights treaties (28), as is South Africa (28). Canada´s Charter of Rights and Freedoms contains no express interpretive provision and yet Canada is also one of the countries with courts making frequent use of international law as an interpretive tool (169 references where identified in the study). 8 See Apparel Export Promotion Council v. AK Chopra, [1999] All India Reporter (S.C.) 625; [2000] 1 Law Reports of the Commonwealth 563, para. 28, Githa Hariharan v. Reserve Bank of India, [1999] 1 Law Reports of India 151; Vishaka v. State of Rajasthan 1997 SOL Case No. 177, para. 13. 9 See Minister for Immigration v. Teoh (1995) 183 CLR 273, at 287.
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Canadian jurisprudence contains numerous interpretive references to international human rights norms that are somewhat more difficult to classify. Sometimes there seems to be implicit the thesis that the Charter of Rights and Freedoms should be interpreted to provide at least as much protection as provided in the international human rights documents Canada has ratified.11 In the more recent decisions, the Canadian Supreme Court has referred more generically to “values reflected in international human rights law” as “able to inform the contextual approach to statutory interpretation and judicial review" even if such instruments could not be applied directly domestically because they had not been implemented by parliament.12 The idea is that in determining the meaning of the Charter provisions, the Court has to look to the external context at the time the Charter was drafted. Because the legislature is presumed to have knowledge of the relevant law, international sources are presumed to have been an inspiration and therefore are used to inform the interpretation of the provisions.13 The fact that a human rights tribunal has considered a clause similar to the constitutional provision in need of interpretation is sometimes considered an additional reason for relying on international sources.14 The Canadian case Reference Re Firearms Act, Decision of the Court of Appeal of Alberta, 1998 ABCA, upheld by the Supreme Court of Canada in 2000, provides an interesting example. In this case the Alberta Court decided that new gun control legislation did not violate the Canadian Constitution noting that Parliament’s efforts were motivated in part by the desire to reduce the incidence of firearms-related domestic violence consistent with the philosophy of CEDAW. The Court explicitly declared that “where legislation is open to two interpretations, one of which is more consistent with international human rights norms, then that interpretation is to be preferred” even if it has not been expressly incorporated into domestic law. Tanzania provides another example of the interpretive use of CEDAW. In Ephrahim v. Pastory and Another, Decision of the High Court of Tanzania, [1990] Law Repost of the Commonwealth (Const) 757, the Court treated principles expressed in the Universal Declaration of Human Rights, CEDAW, and the African Charter on Human and People’s Rights as expressing “a standard below which any civilised nation will be ashamed to fall.” The Court relied upon the constitutional interpretive value of these principles to strike down customary law that discriminated against female members of a clan by denying them the right to sell land. In other national settings the interpretive use of international human rights law is strengthened in those cases in which there is explicit recognition of the fact that constitutional rights were modeled on existing international instruments, as it is then assumed that such
10 See MacBain v. State of Victoria (2000) FCA 1009, where the ‘legitimate expectation’ principle was invoked in a dispute concerning the interpretation of The Sex Discrimination Act 1984 (Cth). 11 See, e.g., Davidson v. Slaight Communications, [1989] 1 S.C.R. 1038, 1056-57, where the Court looked to Canada’s international human rights obligations in interpreting both the content of Charter rights and the sufficiency of any justifications for restrictions upon such rights. 12 See Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 Supreme Court Reports 817. 13 See Québec Inc. v. Quebec, [1996] 3 Supreme Court Reports 919. 14 See Demers v. R., Decision of the Supreme Court of British Columbia, August 3, 1999.
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constitutional rights “give expression” to the relevant international instruments. For instance, in Chairman, Railway Board vs. Mrs. Chladrima Das AIR 2000 S. Ct. 988, the Indian Supreme Court held that rape is a violation of the Fundamental Right to life with dignity guaranteed under Art. 21 of the Indian Constitution. The Court placed reliance on the broad construction that the term “life” had to be given in reference to the Universal Declaration of Human Rights upon which that this section of the Indian Constitution was modeled. Also, sometimes the fact that there was international involvement in the drafting the Constitution is taken to reinforce the need to interpret it in the light of then existing international human rights agreements whether or not they have become part of domestic law.15 These brief examples are offered with the hope that constitutional law professors from all parts of the world might find in them useful starting points for class discussions that explore differing views on the roles that international and comparative law should play in domestic constitutional interpretation while also expanding students’ understanding of gender discrimination within a global context.
15 See, for instance, Kauesa v. Minister of Home Affairs and Others, Decision of the High Court of Namibia, [1995] 1 South Africa Law Reports 51.
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The Constitutional Conundrum of Locus Standi: Comparative Analysis of The Rules Standing in Public Interest Environmental Litigation in The USA And South Africa.
T Murombo* University of the Witwatersrand South Africa
1. INTRODUCTION
‘The voice of the inanimate object, therefore, should not be stilled. That does not mean that the judiciary takes over the managerial functions from the federal agency. It merely means that before these priceless bits of Americana (such as a valley, an alpine meadow, a river, or a lake) are forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these environmental wonders should be heard.’ Per William O. Douglas dissenting in Sierra Club v Morton 405 U.S. 727,749 (1972)
For a very long time United States of America (‘US’) federal courts have insisted that for a litigant to bring a case the litigant must pass the standing test developed by the Supreme Court over time in a long line of cases. In addition to showing an ‘injury-in-fact,’1Article III, sect. 3 of the Constitution of the United States of America (‘USA’)2 requires a prospective litigant to show that, such injury is concrete and particularised; the threat [of injury] must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favourable judicial decision will prevent or redress the injury.3 (emphasis added) This ‘standing doctrine’ as it has come to be called, has resulted in a number of cases where public interest environmental organisations have failed to prove standing to bring suits in the interests of protecting the environment, natural resources or a component thereof. Public interest environmental organisations must show that the action or threat of action or omission complained of posses an ‘actual or imminent’ injury to their members; otherwise they will have no standing to bring the suit. These decisions culminated in the recent decision of the US
* Senior Lecturer in Law, University of the Witwatersrand, LLB (Hons) University of Zimbabwe; LLM (Cape Town); LLM (Pace); PhD candidate (Wits), Email: [email protected] 1 NRDC v EP, 464 F.3d1, 373 US App. D.C 223 (2006); Lujan v Defenders of Wildlife, 504 U.S 555 (1992); Whitmore v Arkansas, 495 U.S 149 (1990)’ 2 Article III Section 3 the Constitution of USA. 3 The state was recently restated in Summers v Earth Island Institute 552 US—; 128 S.Ct. 1118 (2008) citing Friends of Earth, Inc v Laidlaw Environmental Services (TOC), Inc 528 US 167, 180-181 (2000).
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Supreme Court in Summers et al v Earth Island Institute et al 552 US — ; 128 S.Ct. 1118 (2008)4 where the Supreme Court reiterated its allegiance to the stringent approach to standing. The constitutional system in the USA with regards to standing summarised above contrasts sharply with the new approach adopted in the new constitutional dispensation in South Africa since 1994. Prior to 1994 the requirements for standing in South Africa for all civil cases were based on the common law requirements which, then, by and large mirrored the USA approach. The Constitution of the Republic of South Africa 1996,5 has done away with strict standing requirements, and for the purposes of this paper, relaxed the approach to standing in public interest environmental litigation. The relaxation of standing is further provided for in the South African: National Environmental Management Act 107 of 1998 (‘the NEMA’). In this paper I undertake a comparative constitutional analysis of doctrine of standing as applied in the US constitutional systems, comparing it to the South African regime, in public interest environmental litigation. In particular, the comparative constitutional analysis of the rules on locus standi in the US and South Africa is aimed at drawing lessons for the US federal courts. I argue that the US has so much to learn from the nuanced constitutional approach to standing that the South African Courts, especially the Constitutional Court, have developed over the short period of constitutional democracy.6 The comparative constitutional analysis is apposite given the Anglo common law history and traditions of the US and South Africa and the relative progress made in both jurisdiction in developing environmental law jurisprudence. I proceed from an analysis of the approach by South African courts to develop a motivation as to why the US federal courts should employ comparative constitutionalism to develop a nuanced approach to the US rules on standing in public interest environmental law and constitutional matters. The paper concludes that the archaic approach to standing in the US federal courts should be reformed and enriched by the US courts drawing on South African public interest environmental and constitutional law jurisprudence. The persistence of the strict approach in the US may well be better reformed through a constitutional amendment that not only introduces the right to an environment not harmful to health and well being, but also widens the rules when it comes to the vindication of such a right in the bill of rights and other environmental legislation.
2. THE ISSUE OF STANDING: LOCUS STANDI In public interest environmental litigation, while the complainant or applicant may be a natural person the injury or harm is often suffered by a component of the environment, be it an endangered animal/species, a river, a mountain, or the atmosphere. It naturally appears incomprehensible therefore for the US federal courts, specifically the Supreme Court to continuously interpret Article III section 3 as requiring a litigant to show imminent direct injury
4 This decision however shows the gradual shift of the justices’ approach on federal standing. The decision was carried by a majority of five against four dissenting (the dissent would have granted standing). 5 The Constitution of the Republic of South Africa Act, 107 of 199. 6 The jurisprudence of locus standi in public interest environmental and constitutional matters will be drawn from an appraisal of caselaw.
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or threat of injury in all cases and controversies. This point was aptly summed up by Burns and Kidd who assert that: the common law position as regards locus standi was an obstacle to an individual’s being able to vindicate the public interest in a healthy or undamaged environment, unless s/he had been personally affected…7 The old South African common law position which is almost equivalent to the current US model has since been abandoned in South Africa when it comes to matters that concern the enforcement of the Bill of Rights, and public interest environmental litigation. The criticism of the strict approach to standing was recently flagged by one of the US’ leading environmental lawyers. Joseph Sax argues that for forty years since the birth of environmental law there has not been any significant progress in terms of developing a body of environmental law that supports the underpinning objectives of environmental regulation. He submits, correctly that, in the US, ‘…judicial action remains a vital element of environmental law, and that element has provided a revealing aspect of what [he] see[s] as a misunderstanding of environmental harm.’8 Sax details how hopes of a liberal approach to standing in public interest environmental litigation were raised by the Mineral King decision (Sierra Club v Morton, 405 U.S. 727 (1972)) and how those hopes have faded over time as the Supreme Court continues to dig in on an archaic strict approach to standing. In reference to the Supreme Court decision in Lujan v Defenders of Wildlife, Sax argues that the majority decision is ‘worthy of derision’ and is ‘indicative of a distinct lack of sympathy with environmental litigation on the part of a number of the present justices.’ He further observes that: [w]hat is genuinely significant about the Defenders case, and deeply distressing, is what it shows about how the Justices perceive the significance of the [Endangered Species Act (16 U.S.C. 1531-1544, 87 Stat. 884)(‘ESA’)], what it means to be “injured” by violations of the Act, and who is injured?9 He concludes by decrying the; vast chasm between what environmental protection is all about and what our jurists think legal rights are all about. In the profoundest sense, they are denying the very possibility of environmental law in the sense that they cannot conceive of the most fundamental concerns of environmental protection as having the status of basic legal rights.10 Undoubtedly the focus on individual rights by the US Supreme Court in environmental litigation has blinded it to the objective of environmental law and regulation. For instance the ESA was never meant to promote the interests of human beings in animals or their habitats but
7 Y. Burns and M. Kidd, ‘Administrative Law & Implementation of Environmental Law,’ in H.A. Strydom & N.D. King eds, Environmental Management in South Africa 222, 263 (Cape Town: Juta 2nd ed.2009). 8 J.L. Sax, ‘Environmental Law Forty years Later: Looking Back and Looking Ahead,’ in M.I. Jeffrey, J. Firestone & K. Bubna-Litic eds, Biodiversity Conservation, Law + Livelihoods: Bridging the North-South Divide 17(New York: Cambridge University Press, 2008). The importance of the role of the courts was also highlighted by Ngcobo J in Fuel Retailers Association of Southern Africa v Director General: Environmental Management Department of Agriculture, Conservation and Environment, Mpumalanga Province, 2007 (6) SA 4 (CC) para 102 (‘The role of the courts is especially important in the context of the protection of the environment and giving effect to the principle of sustainable development. The importance of the protection of the environment cannot be gainsaid.’). 9 Sax, id at 19. 10 Id, at 21.
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precisely to protect the endangered animals and those habitats from anthropogenic threats. In the context of Lujan v Defenders of Wildlife it is inconceivable to the US Supreme Court for an individual to bring litigation in the interest of any endangered species unless they can show that they are personally imminently threatened with an injury in fact.11 Could any American bring actions to stop activities by an American transnational corporation that may endanger the Polar Bear or the Panda? The persistence of the strict approach is therefore a serious threat to the prospects of public interest environmental litigation in the US and it is argued here that short of a constitutional amendment, the Supreme Court must create exceptions to the requirements to show an injury in fact that is concrete and imminent and not purely conjectural. In order for the US judiciary to develop its constitutional jurisprudence in this direction it would be beneficial to deploy comparative constitutional law and look to foreign developments in public interest environmental litigation. This includes developments especially in South Africa12 and jurisdictions like India.13 In fact it has been observed that this movement in the US judiciary is showing signs of becoming a reality albeit at a minuscule pace.14 Justices Ginsburg and Breyer showed this progressive thinking in Grutter and also Justice Breyer led the dissent in Summers, although in the latter case there was no direct reliance on comparative jurisprudence. I argue that the USA approach is out of sync with international developments in environmental law and constitutional litigation where there is an increasing recognition that, more often than not, the people who suffer violation of constitutional rights, and in this case environmental harms are disabled from instituting litigation due to a number of factors to be analysed in an expanded version of this paper.15 Loretta Feris rightly submits that, [o]ne should consider that litigation is expensive and very few individuals have the necessary financial resources required for extensive and complicated litigation. In the South African context, people most often affected by environmental degradation are generally poor, which prevents them from gaining access to courts. Public interest organisations consequently take up the task of litigating on behalf of vulnerable groups.16 More importantly in violations of environmental legislation while they may directly affect people, often largely directly affect or damage the environment, which in the US conception
11 Lujan v Defenders of Wildlife 504 U.S 555 (1992) at 562. see also generally Sierra Club v Morton, 405 U.S 727(1972). 12 The Constitution of South Africa 1996 is regarded as probably, ‘the most progressive constitution in the world today in terms of guaranteeing and expansive set of fundamental human rights…’ per D. Takacs, ‘The Public trust Doctrine, Environmental Human Rights, and the Future of Private Property’ 16 New York University Environmental Law Journal 71,740 (2008). 13 The Indian Supreme Court has adopted an expansive interpretation of the right to life, an approach that has seen public interest litigation flourish without opening any flood gates or allowing the judiciary to encroach on other branches of government. 14 V. Jackson and M. Tushnet eds, Defining the Field of Comparative Constitutional Law (New York: Foundation Press 1999), see also Grutter v Bollinger 539 U.S 306 (2003). see also D. Fontana, ‘Refined Comparativism in Constitutional Law’ 49 UCLA L. Rev. 539 (2001) 15 This working paper is work in progress and will be expanded into a full article in due course. 16 L. Feris, ‘Environmental Rights and Locus Standi,’ in A. Paterson and L.J. Kotzé eds, Environmental Compliance and Enforcement in South Africa: Legal Perspectives 129,146 (Cape Town: Juta, 2009).
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does not have standing to bring suit, as it is not the subject of rights, but merely the object thereof. In this context the fact that the ‘poor’ in the US may be different from the ‘poor’ in South Africa becomes immaterial. The US approach at best illustrates the deficiency of a human-centred approach to environmental regulation where the interests of human beings are elevated above all other interests. A purely utilitarian perspective is taken towards environmental harm. A brief overview of the South African courts’ approach to standing in public interest constitutional and environmental litigation will further illuminate the arguments posited above.
3. THE SOUTH AFRICAN CONSTITUTIONAL MODEL
As indicated elsewhere above, before 1994 South African law required a litigant to show ‘a sufficient, direct, and personal interest’ in the matter.17 This ‘interest’ was construed to refer to a ‘legal right or recognised interest which must be direct and personal.’18 This approach had the same limitations as those being experienced by public interest environmental organisations and environmentalists in the US today.19 It was stringent and could not be relied upon to promote public interest litigation. With the advent of a new government dispensation in 1994 was born a new Constitution with extensive human rights and extensive standing provisions to facilitate effective protection of those rights and their vindication where they were violated.20 In terms of the Constitution any person can virtually bring an action to protect a provision of the Bill of Rights. This Bill includes, among other rights, the right to an environment not harmful to health and well being.21 The way this right is framed and subsequent legislation giving content to this right have all practically given a measure of rights to the environment and animals that can be enforced by environmental organisations and concerned citizens without them showing any particularised interest or injury suffered as a result of the impugned action or inaction.22 If it is an organisation that seeks to bring litigation it must obviously show that one of its objectives is to protect the environment i.e. that it was established to further the interests of environmental protection in one way or the other. The widened standing provisions in the Constitution23 as far as environmental matters are concerned, is further elaborated on in section 32(1) the NEMA which provides, among other things, that any person could institute proceedings in the “interests of the environment.”
17 Director of Education, Transvaal v McCagie and Others 1918 AD 616, 623. see also Von Moltke v Costa Areosa (Pty) Ltd 1975 (1) SA 255 (C), Verstappen v Port Edward Town Board and Others 1994 (3) SA 569 (D). 18 Burns & Kidd, note 7 above at 262. 19 See Sierra Club v Morton 405 U.S 727, 92 S.Ct. 1361 (1972). 20 Constitution of the Republic of South Africa 1996, section 38. 21 South Africa: section 24 Constitution of 1996 22 see Save the Vaal Environment note 6 above. 23 South Africa: section 38, a person seeking to enforce any rights outside the Bill of Rights still has to meet the common law requirements regarding standing.
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It is clear from this provision that civic environmental organisation would not struggle to establish standing and it has now become a routine that such organisations can bring an action without their standing being brought into issue.24
3.1. Distinction with the USA approach Whilst both the US federal courts’ and the South African courts’ approaches to the issue of standing stem from the constitutional provisions of both countries, it must be understood that the two constitutions are the result of different processes of political struggle. The South African Constitution is far much recent and was forged when human beings had had over two centuries of experience with constitutional democracies and their frailties. In addition the environmental imperatives and the relative policy priority that such imperatives are receiving in both countries are quite different. South Africa has such urgent need to promote social and economic development while the USA is regarded as a developed country (of course in desperate need of economic recovery). These distinctions though are not mirrored in the realities of the courts’ approach to the issues of standing. On the contrary, in South Africa where standing to bring all sorts of environmental challenges should supposedly be stringent to pave way for fast track economic development activities, the legislature and the courts have taken a more liberal approach compared to the stringent approach that is followed by the US federal courts. It appears therefore that the only possible reasons why the USA has maintained the stringent approach is the overemphasis on individual rights that has overshadowed the need to protect the environment for its own sake, and a constitutional tradition on standing which the Supreme Court seems too cautious to modernise.25
4. CONCLUDING REMARKS
A comparative constitutional approach to the issue of standing in matters of public interest environmental and constitutional litigation can be a useful way for the US federal courts, especially the Supreme Court to reform and modernise their approach to standing and bring the US Constitution into line with global trends towards a relaxed perspective on standing where harm to the environment or natural resource is concerned. I have argued that as a starting point the US can look to the progressive constitutional dispensation in South Africa and the standing jurisprudence that has been developed around the 1996 Constitution. Such a comparative approach will not only, enrich US environmental law jurisprudence, but also create room for public interest environmental law (and constitutional/civil rights) organisations to effectively vindicate and enforce the rights of marginalised communities and entities like the
24 see Wildlife Society of Southern Africa and Others v Minister of Environmental Affairs and Tourism of the Republic of South Africa and Others 1996 (3) SA 1095 (Tk), Wildlife and Environmental Society of Southern Africa v MEC for Economic Affairs, Environment and Tourism, Eastern Cape 2005 (6) SA 123 (E), and Cf. the USA position where the Supreme Court has said in Summers that ‘it is well established that the court has an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties.’ i.e. mero motu. 25 The call to ‘green’ the judiciary in South Africa by Kidd becomes eve seem more apposite and urgent in the USA federal courts, M. Kidd, ‘Greening the Judiciary’ (2006) 3 Potchefstroom Electronic Law Journal at 1. The stringent common law approach to standing is also still followed in many other jurisdictions with an Anglo heritage.
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environment and wild animals that lack legal rights. While the US Supreme Court justices are taking small steps towards this direction, it is submitted that they could do more without opening the flood gates, or overreaching their constitutional mandate, or destroying the foundations of the US Constitution and the long standing Anglo –American common law traditions. The orthodox standing rules were developed well before the civil rights and the environmental movements and they must be brought into line with contemporary legal thinking that is underpinned by the concept of sustainable development.
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Implementing The European Convention on Human Rights: A Comparative Constitutional Perspective With References to Ireland and France
Dr. Marie-Luce Paris Law Lecturer University College Dublin Ireland
Introduction The present paper relates to the general theme of Comparative Constitutional Law (although ideas developed also ties in the topic on Contemporary Challenges to Executive Power). One way of comparing the different constitutional traditions and rules is to examine how constitutional orders are influenced and adapt to an external set of rules whether national (i.e. the influence of private law on constitutional law/privatization of public law) or international. In the European context, the influence of European law understood as including, in its broadest sense, the influence of the law of the European Union (EU) and the law of the European Convention on Human Rights (ECHR), has obviously been most significant in transforming national constitutional orders.
The paper will focus on the impact of the ECHR1 which appears as the most successful achievement of the Council of Europe in the area of the judicial protection of human rights. Signed on 4 November 1950 and in force since 3 September 1953, the ECHR has evolved into a sophisticated legal system welcoming new signatories and adding new rights. Studies in the area have been increasingly focussing on the structural relationship between the ECHR and national legal orders showing the different aspects and processes of Europeanization of domestic law and politics2. Reception mechanisms and implementation processes of the ECHR have clarified and enhanced the nature and status of the Convention in the domestic legal order and thus profoundly impacted on national constitutional law and adjudication. The ECHR will serve as a medium to compare constitutional laws which is limited for this purpose to two countries – namely France and Ireland3. Both countries were among the founding members of the Council of Europe and first signatories of the ECHR. Some of the main differences and commonalities of the experiences of France and Ireland in implementing the ECHR will be addressed and reveal to what extent this implementation has influenced, or “Europeanized”, their constitutional approach to rights protection. The comparative law methodology is
1 Literature analysing the nature and influence of the ECHR identifies important evolutionary trends, the constitutionalization of its regime in particular which is now debated not only among scholars but now largely by judges and politicians. 2 The literature on Europeanization is extensive in the political science discipline. See i.e. See M Green Cowles, J Caporaso & T Risse (eds), Transforming Europe: Europeanization and Domestic Change (Cornell University Press, 2001), K Featherstone & C M Radaelli (eds), The Politics of Europeanization (OUP, 2003), and P Graziano & M P Vink (eds), Europeanization – New Research Agendas (Macmillan, 2008). In law, see i.e. F Snyder, The Europeanisation of Law : The Legal Effects of European Integration (Hart, 2000). 3 A more detailed version of some aspects developed in this piece were presented earlier at the inaugural conference of the Irish Society of Comparative Law (University of Limerick, 27-28 February 2009). The general research theme on the reception and implementation of the ECHR derives from my PhD (2006)which was about the implementation of the ECHR by the United Kingdom and from a report (2001) submitted to the Academy of European Public Law on a comparison between the UK and Ireland on the same topic. The choice of these two countries can also been explained by my personal status – French national living and working in Ireland!
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analytical rather than prescriptive and seeks to understand and explain the similarities and differences between the two legal systems4.
After looking at some historical paradoxical aspects concerning these two original signatories, especially the underlying justifications for late ratification by France and late incorporation by Ireland, the study shows that, pre-incorporation, Irish courts were rather ignorant of the Strasbourg system, while the French Constitutional Court (Conseil constitutionnel) decided from the start that the ECHR was not part of the bloc de constitutionnalité. However, the examination of the current status of the ECHR in the hierarchy of norms shows how the review operated under the ECHR Irish Act 2003, on the one hand, and the review operated by the French Conseil constitutionnel, on the other hand, represent interesting challenges as far the complex and ongoing process of “Europeanization” of constitutional law is concerned.
Overview of National Constitutional Orders A number of preliminary remarks concern the Constitution and its provisions on fundamental rights, the organization of the court system as well as the relationship between domestic and international law. Although bearing different legal cultures – one representative of the civil law tradition and the other of the common law tradition – both countries are unitary Republican States possessing a written constitution and sharing a long standing commitment to fundamental rights protection. Both constitutional texts are important single documents drafted at a key moment of the history of the country and attached to a charismatic person: de Gaulle in the case of the French Constitution (Constitution de la 5ème République, 1958) and de Valera in the case of the Irish Constitution (Bunreacht na hÉireann, 1937). Despite their original political nature and aim, they both evolved into dynamic and refined legal instruments.
The organization of the courts and the existence of judicial review of legislation are also important elements to take into account. The French legal system is divided into two main orders, the civil order with the Court of Cassation (Cour de cassation) at its top, and the administrative order with the Council of State (Conseil d’Etat) as its supreme court. The 1958 Constitution did also provide for a non-judicial Constitutional Council (Conseil constitutionnel) which has managed not only to transform itself into a body that, at least in some respects, resembles a constitutional court, but also transform the Constitution itself from an instrument primarily concerned with the institutional structure of government to one that also provides substantial protection of fundamental rights. Contrary to France, Irish law recognises a process of judicial review whereby either the High Court or Supreme Court may declare invalid (null and void) legislation, or any part of such legislation, which infringes a provision of the Constitution.
The relationship between domestic and international law determines the reception mode of the ECHR. The constitutional approach in this regard is different between France and Ireland. Formally, France is monist whereas the Irish constitution is resolutely dualist. In terms of rank in the hierarchy of norms, treaty law possesses supra-legislative, but sub-constitutional, status. Despite early involvement of political authorities in both countries, the reception of the ECHR,
4 For the numerous possibilities in comparative law research, see i.e. E Örücü & D Nelken (eds), Comparative Law: A Handbook (Hart, 2007).
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which was to be via the ratification process in France, and through incorporation by Parliamentary statute in Ireland, was not self evident and followed different paths in each jurisdiction
Paths to Reception of the ECHR Support to the ECHR was quite unproblematic for France and Ireland, despite reserves at drafting and/or signature stage. They were among the Council of Europe’s founding States and the first countries to sign the ECHR on 4 November 1950. France took a large part (as did the UK) in the drafting of the Convention which fully justified its prompt signature5. The Irish Government supported the adoption of the ECHR because it thought it would benefit the country for foreign policy reasons. Unofficial motivations also included anti-British or anti- partition sentiment, a view seemingly confirmed later by the 1978 Ireland v. UK case, the only interstate procedure ever launched by Ireland. However, both States displayed lateness in their full acceptance of the ECHR in the domestic legal order, France with its late ratification in 1974 and Ireland with its belated incorporation in 2003.
France only ratified the ECHR on 3 May 1974, after fifteen European States had already done so, and prior attempts had failed. Several reasons contributed to the delayed ratification6. In addition to being late, the French ratification was also qualified. Accession to the ECHR and its various Protocols was marked by reservations and declarations. Lastly, and despite numerous Parliamentary and doctrinal pressures, the individual right to petition was only recognized on 3 October 1981 and only for a limited and renewable period of five years (later renewed). This attitude was not limited to the ECHR system but characterized the French response to other international treaties on human rights7. The first judgement in an application against France was delivered by the ECtHR only in 19868.
Intervening soon after the signature and relatively unqualified, ratification by Ireland was comparatively unproblematic. The Executive, who has in most cases sole power to ratify a treaty under Article 29(1) and (2) of the Irish Constitution, ratified the ECHR on 25 February 1953, and it entered into force on 3 September 1953. Ireland ratified all optional clauses right from the beginning in 1953 and, along with Sweden, was the first Contracting State to accept the right of individual petition to the ECtHR, in February 1953 (entry into force on 5 June 1955). It was involved in the first individual petition ever considered by the ECtHR, in the Lawless case in 19619. All optional Protocols to the Convention, with the exception of Protocol no. 1210, have now been ratified by Ireland. However, for the next fifty years, the ECHR did not form part of
5Two eminent French scholars, namely René Cassin and Pierre-Henri Teitgen, who eventually became the first two French judges of the ECtHR, were among the instigators and drafters of the ECHR in the late 1940s. See A. Pellet (1974) ‘La ratification par la France de la Convention européenne des droits de l’homme’ Revue du droit public et de la science politique en France et à l’étranger 1328. 6 E. Lambert Abdelgawad & A. Weber (2008) ‘The Reception Process in France and Germany’ in A. Stone Sweet & H. Keller A Europe of Rights – The Impact of the ECHR on National Legal Systems (Oxford: OUP) at 108. 7 France denounced the declaration of acceptance of the compulsory jurisdiction of the International Court of Justice in 1974. See also the accession to the CCPR and to the 1965 Convention on the Elimination of Racial Discrimination. 8 ECtHR Bozano v. France 18 December 1986, Series A, Vol. 111. 9 ECtHR Lawless v. Ireland (No. 3) 1 July 1961, Series A, Vol. 3; [1979-1980] 1 EHRR 15. 10 The most important reason for not ratifying Protocol no. 12 is the fear that Conventional protection might lead to constitutional conflicts in Ireland, given that equality and non-discrimination are protected by Article 40(1) of the Irish Constitution.
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Irish domestic law, until the Oireachtas adopted the European Convention on Human Rights Act on 30 June 2003 (ECHR Act 2003). It was the UK’s incorporation of the Convention in the Human Rights Act of 9 November 1998 (HRA, 1998), following the Belfast Agreement of the same year11, that led Ireland to consider incorporation. Modelled on the British HRA, the ECHR Act incorporates Convention rights into Irish law in an indirect (interpretive) way. However (and in contrast to the HRA), important limitations prevent litigants to plead the Convention against the Parliament or the courts, while the equivalent Irish constitutional rights can be invoked against all authorities including the Oireachtas. The first ever declaration of incompatibility was granted by the High Court in the Foy case on 19 October 2007 in the case of a transsexual woman who was not entitled under Irish law to an altered birth certificate – this was found to be incompatible with the Convention, thus calling upon the Parliament to act12.
Common features characterize the key moments of reception of the ECHR in the national legal order in both countries: on one hand, the delay in ratification/incorporation was justified by national officials routinely asserting that reception would be superfluous since their domestic legal order was well adapted to the protection of individual fundamental rights; on the other hand, the reception step was envisaged more with external and/or ideological considerations in mind rather than to address a pressing domestic purpose. France undertook ratification to demonstrate faith in the European ideal, while Ireland ‘externalized rights politics’ by accepting incorporation as the price for peace in Northern Ireland and felt committed after the UK’s incorporation. The ECHR Act seems to generally supplement what is arguably the most advanced system of judicial protection of constitutional rights in Europe. This explains the strong constitutional resistance to incorporation on the part of Ireland. Reservations, declarations and non ratification of certain Protocols still reveal a common cautious approach towards the ECHR system especially when important aspects of constitutional law are at stake (e.g. Protocol no. 12 for Ireland).
Impact of the ECHR on the national constitutional order: constitutionality and ‘conventionality’ review Data on the activity of the ECtHR vis-à-vis France and Ireland and analysis of compliance mechanisms (preventive or post-ECtHR rulings) will be left aside. Suffice is to say that while Ireland ratified the ECHR and accepted the right of individual petition long before France, the number of judgements against Ireland places it among the countries with the lowest total of cases filed and adverse judgements. At the other end of the spectrum, France quickly became a regular litigant before the ECtHR. In both instances, the case law of the ECtHR has had some substantial effects on both national legal orders. Rather emphasis is put here on the role of the constitutional judge whether enhancing effectiveness of the ECHR or resisting its reach. This part gives some account of the impact of the ECHR on the method of constitutional review and how has the taking into account of the ECHR and its case law been reconciled with judicial
11 The 1998 Belfast (‘Good Friday’) Agreement was signed between Ireland and the UK in the context of advancing the peace process in Northern Ireland. It committed the parties to establishing a Human Rights Commission whose remit would be to supervise the enforcement of human rights obligations. 12 Lydia Foy v. Ireland 19 October 2007 [2007] IEHC.
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review in both systems. It primarily concerns developments within the Irish Supreme Court and the French Constitutional Council.
In both countries, the ECHR has an infra-constitutional rank. The Irish ECHR Act 2003 is not an entrenched statute and the incorporated Convention rights possess sub-constitutional rank in Irish law. However, the ECHR Act is unlikely to be overruled. Also, the courts’ structure explains a lot of the attitude towards the ECHR system. In France, there is a duality of courts – ordinary courts (Court of Cassation and the Council of State) on one hand, Constitutional Council on the other hand. In Ireland, there exists a sophisticated, mainstream and seemingly self-sufficient judicial review.
The point of tension in this area has been the reconciliation of constitutional review (compatibility with the Constitution) and ‘conventional’ review (conformity with the ECHR) in the supreme courts. Concerning the Constitutional Council, it seems not to be influenced by the ECHR and its case law (even when it acts as electoral judge) since it refuses any control of the compatibility of French law with the ECHR. However, the account has to be more subtle than that. If the Conseil constitutionnel does not include the ECHR as an operative tool when exercising its constitutional review (including it in the norms of reference), it does not mean that it has totally neglected and ignored it. The French constitutional judge has been more inclined over the years to use the ECHR, as interpreted by the ECtHR, as an aid to the interpretation of rights and liberties protected at domestic level. In recent years, it has come to refer to the ECHR itself and, recently, to its case law within the legal bases (visas) of its decision13. This is typical of a growing awareness of the constitutional judge towards European norms. These constitutional arrangements and judicial developments produce a particularity that the reception of the ECHR has put to the fore. A law can be judged to be in conformity with the Constitution by the Constitutional Council but later be found in its application before the ordinary civil or administrative judge to be in violation of the ECHR14. The review of ‘conventionality’ by the high courts is arguably said to operate as ‘a functional substitute for rights protection under the Constitution’15.
In Ireland, Irish judges tend to subsume Convention rights and arguments under domestic constitutional remedies themselves, even when constitutional and conventional guarantees are not entirely congruent 16 - in other words they stretch interpretation of incorporated Convention rights to make them correspond to constitutional rights. This might explain why only one section 5 declaration of incompatibility has been granted by Irish courts so far. However, the assimilation of ‘conventionality’ review into domestic traditional constitutional review must remedy some of the structural deficiencies of the ECHR Act moving from a
13 See Conseil constitutionnel Decision 2004-505 DC of 19 November 2004 (Traité établissant une Constitution pour l’Europe) in which the Conseil mentions explicitly a decision of the ECtHR in its visas: ‘Having regard to decision n° 4774/98 of the ECtHR (Leyla Sahin v. Turkey) dated 29 June 2004’ (see also below). 14 See e.g. ECtHR (Grand Chamber), Zielinski and Pradal and Gonzales and Others v. France, 28 October 1999, Reports 1999-VII, 95. 15 E. Lambert Abdelgawad & A. Weber (2008) at 116. 16 See e.g. Hardiman J. in J.F. v. DPP [2005] 2 IR 174, T.H. v. DPP & His Honour Judge Peter Smithwick [2004] IEHC 76; see e.g. Gashi & Others v. Minister for Justice, Equality and Law Reform & Others [2004] IEHC 394, and Margine v. Minister for Justice, Equality and Law Reform & Others [2004] IEHC 127.
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declaration of incompatibility to a declaration of invalidity – thus extending the benefit of constitutional remedies to Convention rights as in other Contracting States.
Conclusion Comparing the two systems leads to paradoxical observations. Early membership of the Council of Europe and commitment to the ECHR could have arguably augured a positive attitude towards the Convention system. Yet, France and Ireland have both displayed enduring reluctance in their full acceptance of the Strasbourg system often reasserting the validity of their own model of human rights protection. Whereas the distrust of France vis-à-vis the ECHR postponed ratification of the Convention for more than twenty years, a strong indifference delayed the incorporation of the Convention for more than fifty years in Ireland. As for the implementation of the Convention post-ratification in France and post-incorporation in Ireland, one could have assumed that Ireland, as a dualist country, would have had an advantage in incorporating through legislation, compared with France with the monist technique of enabling immediate validity and reception through adjudication. Indeed, in addition to the benefits of enhanced political legitimacy, statutory incorporation can resolve the difficult issues of validity, applicability, and rank of the incorporated norms, rather than leaving such problems to judges to deal with on an ad hoc but continuous basis17. However, the model of incorporation chosen by Ireland – and much inspired by the British Human Rights Act 1998 – has been somewhat limited in scope and use.
However, the use of the ECHR, as interpreted by the ECtHR, as part of the national judicial landscape is becoming more commonplace, albeit at different degrees and from different times. It is also important to stress that in both countries awareness of lawyers and jurists has increased as well thereby contributing to increasing the profile of the ECHR.
17 S. Besson (2008) ‘The Reception Process in Ireland and the United Kingdom’ in A. Stone Sweet & H. Keller A Europe of Rights – The Impact of the ECHR on National Legal Systems (Oxford: OUP) at 97.
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Comparative Indigenous Rights and Serendipity
Paul Rishworth Professor of Law The University of Auckland New Zealand
The legal effect of colonisation has long been explored, sometimes famously, through judicial decisions in the colonised countries. Each legal regime comes to use a language emerging from its own background and structure – “domestic dependent nations”, “aboriginal rights”, “treaty rights” and the like. In modern times the aspirations of the indigenous peoples themselves are increasingly expressed in terms suggested by international human rights law – self- determination, consultation, good faith and rights to the enjoyment of culture.
The purpose of this brief note is to report on a distinctive feature of New Zealand’s constitutional arrangements: the happy but somewhat accidental alignment between the nation’s foundational document – the Treaty of Waitangi, made in 1840 between the Queen of England and the Maori chiefs – and the imperatives now brought to bear by article 27 of the International Covenant on Civil and Political Rights.
Treaties with indigenous peoples were, of course, common enough in the colonial era. But while the North American treaties often partook of the character of land transactions, the New Zealand one was explicitly about sovereignty.
A story worth telling, then, is the serendipitous choice of text for this treaty. That choice has served to ensure the Treaty’s continuing relevance in modern New Zealand (one hastens to add, a relevance that has surfaced only after 150 years of being on or near the “back burner”). The Treaty text neatly articulates a modern issue in relation to indigenous peoples in colonised countries: is there room for a continuing domestic Maori self-determination, for accommodation of their cultural rights, and for consultation on matters affecting them?
The Treaty of Waitangi and the Maori dimension of New Zealand
The Treaty of Waitangi was signed in February 1840. Its origin lies in the decision of the English Government in 1839 to seek a cession from Maori chiefs of their sovereignty over New Zealand. This would enable the assertion of English authority over the growing number of settlers who were making their way to the then recently discovered isles. But it seems plain that a power to govern Maori was also envisaged.
Captain Hobson was despatched to secure the treaty. Within days of his arrival, and apparently without having been given any suggested draft or precedent to copy, Hobson prepared and obtained the first signatures on a treaty. It was written first in English but, for obvious reasons,
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translated into the Maori language. By that time the Maori language had become a written language, on account of nearly three decades of missionary activity from 1814. As it transpired, the Maori version was not in fact a direct translation of the English text and therein lies the serendipity alluded to in my title. But we will begin with the English text, for this indicates English intentions.
The English Treaty has three brief “articles”: by article 1 the Maori cede their sovereignty to Queen Victoria; by article 2 the Crown1 guarantees to Maori the continued enjoyment of their “lands, estates, forests, fisheries and other properties” for so long as they wish to retain them (and with the Crown to have rights of first refusal); and in article 3 Maori are guaranteed equal rights along with British subjects.
The Treaty is, therefore, an early form of bill of rights, or international human rights treaty. It affirms Maori property rights and a general right to equality. (An oral addendum on 6 February 1840, the day of the first signing at Waitangi – sometimes called the “fourth article” – added a guarantee that all religions including the beliefs of Maori would be equally free.)2
Maori chiefs duly signed the Treaty, albeit the Maori version mentioned shortly. Colonisation of New Zealand proceeded apace, in a manner reflecting the English version. English style institutions were created – a legislature, an executive and a judiciary. Many settlers came in the decades following. Maori were regarded as susceptible to the entirety of English law, ameliorated in the early days so far as criminal law was concerned. Maori customary law was recognised in some areas, but this withered and disappeared in the 20th century for a variety of familiar reasons. These included the alienation of Maori land, Maori migration to cities, integration into European ways, and (in the courts) the influence of legal positivism which came to hold that Maori had no cognisable rights save for those created by Parliament, which were few and far between. That sleight of hand precluded recognition of Maori fishing rights for nearly a century. Indeed, only in 1985 were customary fishing rights successfully asserted in litigation (a time when a similar renaissance of customary rights was being seen in Australia and Canada).3
The crux of the problem for Maori was that the Treaty of Waitangi, from its very inception, was a victim of New Zealand’s dualist paradigm. A treaty is not law unless its provisions are implemented by Parliamentary legislation. No direct recourse to it can be made in litigation; not, at least, as a source of rights.
The Maori Treaty, Te Tiriti o Waitangi
But in fact, the “real” Treaty is in the Maori language, and it is not the same as the English version. Virtually all signatories signed the Maori version, first at Waitangi and then elsewhere
1 “The Crown” was and remains a common term used to designate the locus of Executive power. 2 This was written into the text signed at Waitangi but not included in the many other treaty copies signed at different places over coming months. It reads: 'The Governor says the several faiths, of England, of the Wesleyans, of Rome, and also the Maori custom, shall be alike protected.' 3 Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 682.
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in New Zealand, so it plainly has a moral authority. Its text generates an intriguing ambiguity about the colonisation enterprise, anticipating much of the modern jurisprudence, and politics, of indigenous peoples’ rights.
In Maori, article 1 of the Treaty is no simple cession of Maori sovereignty. It is a grant by Maori to the Queen of “governorship”,4 implying (some argue) a continuing role for Maori in the new order as overseer or at least partner with the Crown in the business of government. Meanwhile, and consistently with the Maori version of article 1, article 2 promises not just continuing Maori ownership of their properties, but chieftainship5 over them. In other words, an implication of political control over what is theirs and a measure of self-determination. Further, the English word “properties” was translated by the Maori word taonga, a word including intangible properties such as language and culture.
Putting this together, Te Tiriti o Waitangi is very close to the set of aspirations that modern indigenous people have in the once-colonised nations. It implies continuing self-determination and some sort of place in the constitutional order. It is no surprise, then, that the Treaty remains central to Maori concern about the structure of the New Zealand state and they way their interests ought to be regarded.
Even so, it remains the position that the Treaty can give no legally enforceable rights, unless and to the extent it is embodied in legislation. And no legislation has ever incorporated the Treaty into the law of New Zealand in any global sense. And so courts have not had occasion to declare what the Treaty means and requires, save in certain restricted situations.
Increasingly, however, a convention of regard for Maori interests is coming to qualify the power of Government. The implications of the Treaty are explored in the context of all fields of government activity and policy. This is premised on a continuing Maori claim to be a “Treaty partner”, arising from the foundational status of the Treaty of Waitangi. A combination of factors has produced this “re-imagination” of the New Zealand state. They include political pressure and a measure of judicial activism in the few cases where legislation has given the courts a role in pronouncing on the issues.
It is here that the serendipitous overlap with the imperatives of modern human rights law can most easily be seen. The Treaty principles are now taken to imply what modern human rights law also implies: consultation, good faith, and appropriate regard for Maori interests as indigenous peoples (including their right to enjoy their culture as protected by article 27 of the International Covenant on Civil and Political Rights).
The 2001 “views” of the Human Rights Committee in Mahuika v New Zealand6 is illustrative. A complaint was made under the Optional Protocol by several Maori tribes who had dissented, in
4 The word used is kawanatanga, a transliteration of the English word “governor”, in use by 1840 to denote the office of Pontius Pilate in the New Testament and of Governor Gipps in New South Wales, each of whom answered to a higher authority. 5 The word is rangatiratanga, derived from rangatira or chief, denoting chieftainship. 6 (2001) 8 IHRR 372.
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1992, from a major settlement made between the Crown and Maori (generally) concerning Maori customary fishing rights. The settlement made a very significant allocation to Maori of New Zealand’s lucrative offshore fishing quota. Most Maori tribes were happy with the settlement, and agreed to discontinue their then pending litigation over customary rights. The settlement was duly implemented in legislation, under which all Maori (including dissentients) were thenceforth precluded from asserting customary fishing rights in the courts. (But the dissentients were equally entitled to share in the benefits that the settlement produced – to be participants in the fishing industry with fishing quota allocated under New Zealand law.)
The dissenting tribes argued under article 27 of ICCPR that the settlement was a denial of their “right to culture” (to fish, both commercially and for traditional purposes). But the Human Rights Committee rejected the claim, holding that there had been appropriate consultation with Maori including the dissenting tribes, that the settlement was beneficial for Maori generally, and that the Crown had paid proper attention to the religious and cultural significance of Maori fishing.
The case exemplifies how the Crown’s discernment and performance of its Treaty of Waitangi obligations met the contemporary expectations of human rights law.
It is fair to say that this alignment would not necessarily be seen by Maori as wholly good news. Maori would say instead that the special relationship augured by their Treaty with the English Crown is not to be transmuted into one of being merely a minority in islands that have become someone else’s state, even if they are a generally well-treated minority.
That is the challenge for New Zealand, reconciling the foundational status for Maori with the equality of all who have come since 1840. And as I write this, it is being played out over the question whether special seats ought to be set aside to ensure Maori representation on the governing body of the new proposed “Super City” structure for the metropolis of Auckland.
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Principle or Ideology? A Comparativist Perspective on The U.S. Controversy Over Supreme Court Citations to Foreign Authorities
Michel Rosenfeld∗ Yeshiva University Benjamin N. Cardozo School of Law United States
Summary
Constitutions are typically deeply embedded in national psyches and cultures making comparisons hazardous. For example, similarly phrased free speech provisions have resulted in widely diverging scopes of protection. Yet, in spite of these difficulties, there has been an increasing use of comparative constitutional materials over the last couple of decades both by constitution-makers and constitutional adjudicators. The South African Constitution goes so far as specifically empowering courts to consider foreign constitutional law when interpreting the country’s Bill of Rights. But even in the United States, with its strong strains of constitutional exclusivism and exceptionalism, the Supreme Court has referred to foreign authorities in cases involving highly contentious issues such as the death penalty and the rights of homosexuals.
The debate among scholars concerning the legitimate scope of comparative work in constitutional law centers around three broady defined positions. Proponents of the first of these maintain that both the problems of constitutional law and their solution are, or ought to be, essentially the same across the spectrum of full-fledged constitutional democracies. Advocates of the second position agree that the problems of constitutional law are the same for all, but are convinced that the solutions to these problems are likely to differ from one constitutional polity to the next. Finally, partisans of the third position are persuaded that neither the constitutional problems nor their solutions are likely to be the same for different constitutional democracies. The first position tends towards constitutional universalism, and turns to comparative constitutionalism to elucidate the proper standards and to spotlight deviations from the latter. The second position is poised to highlight differences and to place them in their proper context, thus shedding light on how different one constitutional system is from the next, and why such constitutional systems -- including the comparativist’s own system --differ from one another. The third position leads to the conclusion that comparisons are most likely to be ultimately arbitrary, and that the comparativists choices and analyses are bound to be driven above all by ideology.
∗ Justice Sydney L. Robins Professor of Human Rights, Benjamin N. Cardozo School of Law, New York City, USA.
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If the issues confronting most constitutional polities are essentially the same, and if the resolution of these issues is, or ought to be, largely the same for all, then the comparativist can play a key role that is both constructive and critical. That role would involve three distinct tasks: distill essential similarities from contingent differences; elaborate a constructive account of relevant constitutional experiences in polities that have developed a jurisprudence on a given issue for use in polities that first confront the issue in question; and provide a critical assessment of the actual handling of a constitutional issue in ways that thwart the achievement of attainable similarities in outcome.
For those comparativists who maintain that constitutional issues are largely the same across the board, but that their resolution ought to differ from one polity to the next, the principal task is to establish and explain relevant differences. Like their counterparts who emphasize similarities, the comparativists who concentrate on differences must deal with the dynamic between identity and difference. But unlike their counterparts, the comparativists of difference do not regard identity as essential and difference as contingent. They regard the identity of issues and problems as providing a common baseline for analysis, and the differences in the various solutions given to the same problem as the key to understanding the uniqueness of each constitutional polity. Consistent with this understanding, the principal role of the comparativist of difference is also multifaceted. Above all, such a comparativist is in an optimal position to contribute to an understanding of how each constitutional jurisdiction – and perhaps most importantly her own – is unique. Moreover, although from the standpoint under consideration, difference looms as prior to identity certain constitutional cultures bear closer similarity to one another than to others. Accordingly, by providing a proper accounting of differences, the comparativist can illuminate when and how similar solutions to the same problem across constitutional boundaries may be appropriate. Finally, just as the comparativist of identity plays a useful critical role, so too can the comparativist of difference. In the latter case, the critical role will be primarily geared to pointing to misunderstanding or improperly accounting for relevant differences.
Certain critical theorists have emphasized that the crucial task confronting the comparativist is that of properly evaluating the import of the similarities and differences encountered in the course of comparing constitutional jurisprudences. However, in the view of these theorists, such proper evaluation may well be beyond the reach of the comparativist because of unavoidable ideological biases. Under this view, the comparativist inevitably imposes the biases of his or her own constitutional culture on all materials from other cultures that are slated for comparison.
All three positions are at least in part persuasive, and a dynamic conception of the interplay among them provides a credible insight into the true potential of comparativisim. It is reasonable to reject the highly implausible hypothesis that comparison in the realm of constitutional law is either altogether impossible, or that its findings are bound to be utterly irrelevant. It follows from this that any hypothesis concerning the utility and the potential of comparison in this field must recognize that there must be both identities and differences among systems, and that these are relevant for comparison even if the exact relevance of
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particular identities or differences or concerning what ultimately ought to count as a relevant similarity or difference remains in dispute.
There is one bias, the national one, that does seemingly set the comparativist apart. Regardless of internal domestic ideological divisions, scholars, judges, politicians and citizens within the same country may share a national bias that sets them apart from their counterparts in other countries. The American ideology and legal culture is thus different from the French, German or Russian one, and the American scholar will most likely be unable to shed his national identity when dealing with foreign legal materials. This seemingly inevitable national bias may even be stronger when dealing with constitutional law, which is likely to be closer to the core of national identity than other fields, such as a commercial law.
The key question concerns the importance rather than the existence of this national bias. This bias is not as important as it may at first appear for two principal reasons. First, the national bias is one among many that spread across borders and that may be equally relevant from the standpoint of the comparativist. Second, once aware of the national bias, one can take steps to mitigate it even if it can never be eradicated. One can explore the political and cultural context in which foreign constitutional law is embedded, read the foreign country’s domestic scholarship, enter into dialogue with foreign comparativists, domestic constitutional law scholars, etc. In short, the comparativist is like a person who needs to learn and use a foreign language to function in an alien land. The person in question will never dominate the foreign language as she does her native one or shed her non-native accent in her newly acquired language. Nevertheless, she will be understood and will in turn be able to learn much about her hosts and their way of life.
The American controversy over citations to foreign authorities is primarily among judges and it has arisen in cases dealing with highly divisive issues such as the death penalty for juveniles or the mentally impaired and the rights of homosexuals. These issues have long divided American judges and the larger polity along moral, political, religious, ideological and constitutional grounds. The more recent controversy over citations to foreign authorities, on the other hand, arose as a consequence of certain historical changes. Most notably, after the fall of the Berlin Wall in 1989, constitutionalism promptly spread throughout the formerly communist polities in Europe followed by rapid expansion into other politics throughout the world, including South Africa, much of South America and many countries in other parts of the world. Moreover, this trend not only brought constitutional democracy to an ever-increasing number of polities, but it also led to the proliferation of constitutional adjudication by courts extending to all corners of the world.
These developments had two salient consequences for American constitutionalism. They put an end to American constitutional hegemony and they yielded a rich and varied judicial constitutional jurisprudence available to be mined for various purposes involving either identification or differentiation between American and non-American approaches and results with respect to similar issues.
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Concurrently with the spread of constitutionalism, and particularly after the United States became the only superpower upon the dissolution of the Soviet Union in the early 1990s, there was an intensification of the divide among the respective proponents of two opposing visions of America. The first of these is the exclusivist vision. In the exclusivist view, the United States is a country with a unique destiny, exemplary values and ideals, and it serves as a model for the rest of the world. Under the second, universalist view, on the other hand, the United States is a diverse cosmopolitan nation which is as much influenced by trends and developments coming from abroad as the rest of the world is influenced by it.
In their current incarnations, the exclusivist view is mainly held by political conservatives; the universalist, by progressives. Moreover, for the exclusivists the United States Constitution must remain purely American and free from foreign influence or contamination. For the universalist, in contrast, there is a convergence of norms and values, at least among advanced constitutional democracies, which makes constitutional cross- fertilization attractive and often useful.
The question of the legitimacy of comparison divides exceptionalists and universalists. For the exceptionalists, at the extreme, consistent with American originalism, which confines legitimate constitutional interpretation to discovery and implementation of the framers’ intent, comparativism is downright illegitimate, a position embraced by Justice Scalia. Universalists, in contrast, may well find foreign authorities and common traditions shared with foreign polities legitimate interpretive resources in the elaboration of a legitimate constitutional jurisprudence. The broader the framing of the issues, and the more they are conceived as evolving, the greater it would seem that comparative considerations would be fruitful.
In the last analysis, comparativism in constitutional adjudication can play an important positive role. This is because there are enough similarities, differences and ideological issues with respect to constitutional adjudication and constitutional scholarship, and because these are contested and contestable. Paradoxically, were similarities, differences and ideological biases obvious and fixed, there would be less of a need for comparativism. But because the interplay between identities and differences and the irruption of ideological bias are constantly in a state of flux, the relationship between one’s turf and the broader universe of which it is a part must constantly be reexamined. Comparativism is thus essential not only to keep abreast of how we relate to others and of what we may profitably learn from them, but also to better understand ourselves so as to forge a better constitutional path for our own polity.
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Comparative Law as a Source of U.S. Constitutional Definition
Kevin W. Saunders Michigan State University United States
There has been relatively recent contention in United States Supreme Court and in political debate over the use of, or perhaps merely reference to, foreign law in constitutional adjudication. The best example in the Court may be in Lawrence v. Texas,1 where the Supreme Court declared unconstitutional statutes criminalizing homosexual sodomy. The majority opinion responded to Chief Justice Burger’s claim, in an earlier case, that recognizing a right of homosexual sodomy would be contrary to millennia of Judeo-Christian moral teaching and the history of Western civilization. The Lawrence Court, in contradiction to that historical view, noted that a committee appointed to advise the British Parliament had, in 1957, recommended the repeal of laws punishing homosexual conduct. The majority also pointed to the decision of the European Court of Human Rights, in Dudgeon v. United Kingdom,2 holding that the criminalization of consensual homosexual sodomy was invalid under the European Convention on Human Rights. The Court went on to say: "Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct."3
A dissent, written by Justice Scalia and joined by the Chief Justice and Justice Thomas, took the majority to task for this use of foreign law and expressed a general disagreement over any use of changes in viewpoint since its earlier decision, in Bowers v. Hardwick,4 upholding prohibitions against sodomy. The dissent said:
[A]n "emerging awareness" is by definition not "deeply rooted in this nation's history and tradition[s]," as we have said "fundamental right" status requires. Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on "values we share with a wider civilization," but rather rejected the claimed right to sodomy on the ground that such a right was not "’deeply rooted in this Nation's history and tradition.5
The contention arose again, two years later, in Roper v. Simmons,6 which declared unconstitutional the execution of those who were minors at the time they committed murder. The majority there said "[o]ur determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in
1 539 U.S. 558 (2003). 2 (1981) 3 E.H.R.R. 40, at 45 Eur.Ct.H.R., 501, 502. 3 539 U.S. at 576 4 478 U.S. 186 (1986). 5 539 U.S. at 598 (Scalia, J., dissenting)(emphasis in original). 6 543 U.S. 551 (2005).
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the world that continues to give official sanction to the juvenile death penalty."7 The majority opinion recognized that that fact was not controlling and that it had the duty to define the constitutional parameters of cruel and unusual, but the majority thought it proper to refer to the laws of other countries and international agreements, such as the United Nations Convention on the Rights of the Child, for instructive purposes. With regard to foreign law and constitutional adjudication, the majority said that it "does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom."8
Justice Scalia was again in dissent, again joined by Chief Justice and Justice Thomas. Justice Scalia did not believe that the meaning of provisions of the Constitution "should be determined by the subjective views of five Members of this Court and like-minded foreigners."9 He went on to say that the "basic premise of the Court’s argument-- that American law should conform to the laws of the rest of the world-- ought to be rejected out of hand."10 With regard to the majority's position that its citations to foreign sources were made to underscore the position of values within our own system, Justice Scalia said:
Foreign sources are cited today not to underscore our “fidelity” to the Constitution, our "pride in its origins," and our own [American] heritage." To the contrary, they are cited to set aside the centuries-old American practice . . . of letting a jury of 12 citizens decide whether, in particular case, youth should be the basis for withholding the death penalty. . . . "Acknowledgment” of foreign approval no has place in a legal opinion of this court unless it is part of the basis of the court's judgment-- which is surely what parades as today.11
In reality, this dispute is simply a rephrasing of the long-running argument over the sources of fundamental rights. It is a rephrasing that seems to allow judicial conservatives to claim that the Supreme Court has ceded sovereignty to some sort of international consensus. But, that is not in fact the case. When the Lawrence Court cited to Dudgeon, it did not suggest that its outcome was controlled by the decision of the European Court of Human Rights. Nor did the Roper Court contend that its decision was controlled by either the laws of other countries or by United Nations Convention.
Rather than the decisions of foreign and international courts being the source of United States law, a situation that might reasonably be seen as a ceding of sovereignty, those bodies of law merely help to provide definition with regard to long, if not universally, recognized sources of United States law. The disagreement over the use of foreign sources is then more properly seen as simply another manifestation of this long-standing debate over what counts in the recognition of fundamental rights. Under one approach to that question, foreign sources may be seen as legitimate sources of definition
7 Id. at 575. 8 Id. at 578. 9 Id. at 608 (Scalia, J., dissenting)(emphasis added). 10 Id. at 624 (Scalia, J., dissenting). 11 Id. at 628 (Sccalia, J., dissenting)(emphasis and addition in original).
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for already existing U.S. constitutional norms. Under a competing approach, they must be seen as irrelevant.
The recognition that there are non-textual limits on legislative authority has a long history. It may be found in pre-colonial English cases, such as Dr. Bonham’s Case,12 and in opinions in colonial and postcolonial American cases, such as Justice Chase’s opinion in Calder v. Bull.13 However, it finds its best statement for the present purposes in an opinion by Justice Washington. In Corfield v. Coryell, he considered what constituted the privileges and immunities protected by Article 4 of the Constitution. In that regard, he said: "We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments . . . .”14 He did go on to add that these privileges and immunities "have, at all times, been enjoyed by the citizens of the several states,"15 but the standard of rights being fundamental based on whether or not they belong to the citizens of all free governments is both important and relevant to the current controversy.16
Moving to a more modern analysis of fundamental rights, Justice Harlan’s opinion in Griswold v. Connecticut17 also seems relevant. While concurring in the Court's judgment holding the application of the anti-contraception statute to married couples unconstitutional, he objected to what he saw as the Court’s restricted view of the scope of the 14th Amendment's Due Process Clause. Justice Harlan’s view of the proper inquiry was not whether there was in right found within the penumbrae of other constitutional rights but whether the statute violated the Due Process Clause, "because the enactment violates basic values ‘implicit in the concept of ordered liberty.’”18 He saw the Due Process Clause as protecting rights independently of any other provisions of the Constitution, and the standard for the recognition of those rights was their implicitness in the concept of ordered liberty. Justice Harlan’s test was arguably adopted by the majority in Roe v. Wade.19 In discussing the right of privacy, the Court examined its prior to decisions and concluded that those decisions "make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ are included in this guarantee personal privacy."20
If the test for fundamental right is to be that “which belong[s], of right, to the citizens of all free government,” evidence of what is regarded to be of right in other free governments would certainly seem relevant. If the European Court of Human Rights has recognized a right to be free from
12 8 Co. 113b, 77 Eng.Rep. 646 (1610). 13 3 Dall. (3 U.S.) 386 (1798). 14 6 F.Cas. 546, 552 (No. 3,230). 15 Id. 16 Justice Washington's interpretation of privileges and immunities was accepted by the dissent in the Slaughterhouse Cases, 16 Wall. (83 U.S.) 36 (1873), as providing meaning for the Privileges and Immunities Clause of the Fourteenth Amendment. While it was a dissent, it does seem to have the better historical justification for its view, as opposed to the far more stilted view of the majority. 17 381 U.S. 479 (1965). 18 Id. at 500 (Harlan, J., concurring)(citing the opinion for the Court in Palko v. Connecticut, 302 U.S. 319, 325,(1937)). 19 410 U.S. 113 (1973). 20 Id. at 152 (also citing to Palko).
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prohibitions on consensual homosexual activity, that court’s analysis, as representative of a significant proportion of those countries deserving to be called free, is relevant to the recognition of a fundamental right. If fundamental rights are those rights that are “implicit in the concept of ordered liberty," what better evidence for the claim of a right is there than the fact that it is recognized in those countries or groups of countries that would be recognized as participating in ordered liberty?
In terms of death penalty cases, the prohibition on cruel and unusual punishment requires an analysis of what is cruel and unusual. That analysis might be limited to views found within the United States, but it might also include other sources. If every other country views the application of the death penalty to juveniles as unacceptable, that may not dictate its unconstitutionality in the United States, but it does indicate that, on some scale, the punishment is unusual.
Viewed in this way, recourse to foreign law is not the ceding of power or sovereignty to some entity outside the United States. It is the application of long-standing Constitutional tests for the fundamentality of rights. Foreign law does not dictate the standard; it provides definition for already accepted standard.
Not all judicial conservatives directly contradict this position. Instead, they may refuse to recognize the tests to which international recourse is relevant. When Justice Scalia dissented in Lawrence, he stated a more limited test for fundamental rights. He said "that only fundamental rights qualify for this so-called ‘heightened scrutiny ‘protection-- that is, rights which are’ deeply rooted in this Nation’s history and tradition.’”21 In Roper, Justice Scalia not only denied a role for foreign law, he denied any role for the Court to other than discerning the moral consensus of the American people. That task, like the identification of American history and tradition, allows no role for foreign judgments or values.
Political conservatives outside the membership of the Court have not appreciated the real nature of the conflict. In the recent confirmation hearings for Judge Sonia Sotomayor , Senator Sessions raised the issue of her reliance on foreign law.22 This led The Washington Times to assert that there was “ample reason to reject her nomination to the Supreme Court.”23 According to the paper,
On April 28, Judge Sotomayor delivered a speech in which she worried that "unless American courts are more open to discussing the ideas raised by foreign cases, and by international cases ... we are going to lose influence in the world." She also said judges rightly have looked to foreign authorities "to help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking.”24
While the suggestion that courts should make decisions based on what the rest of the world might think is problematic, the idea that foreign judgments may help judges understand “our own constitutional
21 539 U.S. at 593 (Scalia, J., dissenting). 22 See Sotomayor's Foreign Ideas: Supreme Court Nominee Backs Transnationalism, WASHINGTON TIMES (July 2, 2009), available at www.washingtontimes.com/news/2009/jul/02/sotomayors-foreign-ideas/ 23 Id. 24 Id.
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rights” is reasonable, not because it helps understand where we fall in the mainstream of international thought but because constitutional tests call for an examination of other nations deserving to be called free or possessing ordered liberty.
In a more direct invocation of the loss of sovereignty, a conservative website states:
Placing Sotomayor on the court would be a major coup for the transnationalist movement. While Justice Ginsburg already represents the transnationalist view on the court, if President Obama could add a second Justice to the court with transnationalist views it would strike a blow against Constitutional sovereignty. Hillary Clinton, Rahm Emanuel, Harold Koh, Cass Sunstein, and many other high ranking Obama administration officials favor application of United Nations protocols and international law over the Constitution. Sotomayor believes that use of foreign law can be “very important and a source of good ideas.”25
Recognizing foreign law as a source of ideas is not a ceding of sovereignty. It is not the acceptance of foreign law as authoritative. Rather, it is the recognition that some constitutional tests need definition and that those tests invite comparative analysis.
If one accepts a test for fundamental rights based on the concept of ordered liberty or rights in countries deserving the appellation “free,” one is left with two possibilities. Either the definition must be provided by philosophical analysis as to what constitutes freedom or ordered liberty, or one may look to practices in countries recognized as free or as participating in ordered liberty. The empirical approach would actually seem the more conservative of the two. It allows for less imposition of individual values by judges. On the other hand, if one rejects the freedom or liberty tests and insists that rights my only rest on American tradition, reference to the law of other countries is simply irrelevant. The debate between the two approaches is certainly not of recent vintage. What is of recent vintage is the assertion that those on one side, who rely on relevant evidence in the application of their test, are somehow anti-American or willing to give up national sovereignty. It is that characterization that must be rejected, even as the debate over proper constitutional tests proceeds.
25 Brian J. Barnes and Jesse Williams. Executive Summary of Judge Sonia Sotomayor, THE ETHICS & RELIGIOUS LIBERTY COMMISSION (Barrett Duke, ed., July 10, 2009), available at http://erlc.com/documents/pdf/sotomayor-exec- summary.pdf
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Building Blocks for A Constitution
Herman Schwartz American University United States
Noted author and constitutional scholar, Herman Schwartz, examines the challenges facing drafters of the world’s newest constitutions. Schwartz elaborates on key building blocks to be considered by drafters of constitutions such as who should draft the document, length, and the makeup of courts and legislative bodies.
Those who write constitutions for emerging democracies face daunting challenges. First, they must write a document that enables the society to decide difficult and divisive questions peacefully, often under grave circumstances. At the same time they must establish effective protections for human rights, including the right of the minority to disagree and for the legislative minority to become a majority.
Secondly, divisions and conflicts usually begin quickly and resolving these can create long-term problems. When the transformation is negotiated, as in much of the former Soviet bloc, the losers will try to hold on to as much power as they can. If the change involves the complete ouster of a regime, as in Iraq, then the winners will vie for power. The compromises resolving these disputes are often incorporated into the constitution, which can be troublesome in the long run. For example, compromises over slavery in the U.S. Constitution made it possible to get that Constitution adopted but were ultimately not good for the nation. Moreover, a constitution is written at a specific point in time, usually when the society faces very difficult economic, social and other problems. There is a temptation and often a necessity to deal with these problems quickly. But provisions designed to quickly deal with immediate problems may not be appropriate solutions for the long term.
Overhanging all documents written at a specific time and place is the fact that it is impossible to foretell the future. And the future will always be different from what is anticipated. Thus, drafters of constitutions must give future governments the flexibility to meet unpredictable and unforeseeable challenges.
One lesson from near-universal experience is that human rights must be effectively protected immediately. When an authoritarian regime is ousted, the society inevitably experiences a sense of liberation and a yearning for freedom. But that sense of excitement does not last very long. Experience in new democracies and old demonstrates that if human rights are not adequately protected initially, it will be difficult to do so later.
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PRELIMINARY CONSIDERATIONS
First, should the constitution be written by an ordinary legislative body or by a special constituent assembly? If the decision is to go with the former, incumbent legislators can write a constitution that keeps themselves in office. A special constituent assembly representing as many elements in society as possible is preferable, even though it is more cumbersome and expensive.
Another preliminary decision is about changing or amending the constitution after it is adopted. It should not be easy to do this. The document should reflect the deepest values of the society and the basic ground rules for the democratic process. These should be stable. On the other hand, since some of the provisions produced by the immediate pressures, conflicts and expectations of the initial period may be ill-suited for the long term, making changes difficult may prevent future governments from dealing adequately with unforeseen problems. For this reason, it would be wise to review the structural aspects of the constitution after a given period of time. One way is to provide for an expert commission at ten or twenty-year intervals to determine whether structural changes need to be made. This could be particularly useful after the first ten years, when at least some of the problems created by the constitution will become apparent.
This review should not, however, include a weakening of the human rights provisions even though there may be a temptation to do this. As the initial euphoria wears off and expected quick improvements to living standards are not felt, there is less concern for human rights. Leaders and even peoples may be tempted to see human rights as a luxury, secondary to matters such as economic stability, even though experience shows that human rights rarely impede an effective response to these challenges.
A related preliminary question is whether the constitution should be short or long. Many in the United States believe that because our short Constitution has lasted for more than 200 years, short constitutions are the best, even for nascent democracies. I do not share that view. U.S. constitutional law cannot be found within the texts of the thirty-four original and amending articles. It can only be found in the over 550 volumes of decisions that a powerful and solidly established U.S. Supreme Court has issued over two centuries. These decisions have established our most fundamental constitutional principles and rights, few of which can be discerned from the bare text of the U.S. Constitution. Democracies that are new, however, do not have the luxury of two centuries to develop these rights and few, if any, start out with a powerful judiciary. They can and should build on American and other experience, and write these fundamental rights and principles into their constitutions without having to wait for the courts.
This does not of course mean that the constitution should be very detailed.
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Constitutions that include too much can block the necessary flexibility. Deciding what should go into a constitution, what should be left to the legislature, and what should not be regulated at all, is one of the most basic and difficult initial questions.
THE BUILDING BLOCKS
So-called horizontal and vertical structural issues are the most difficult issues for they involve the distribution of power. They are almost always resolved amid political controversy, with short-term goals, particularly how to get and keep power, often dominant.
An initial issue is whether to have a presidential or a parliamentary system. Although each has many varieties, they fall into two groups. The presidential system, of which the American version is the best known, usually involves the election of a chief executive by the people either directly or, as in the United States indirectly for a set period of years. The president, who is both head of state and head of the government, sets both domestic and foreign policy and picks ministers to implement these policies. Ministers are often subject to confirmation by the legislature, but ultimately subject to direction and control by the president.
The legislature is independently elected, also for a set period of years. Neither the president nor the legislature is normally subject to dismissal by the other. This produces a system of dual legitimacy and clearly separated powers.
The presidential system offers stability and, in the hands of a strong president, can provide vigorous leadership. The stability can, however, turn into rigidity, for an unpopular or ineffective president cannot be easily removed until his term expires. Moreover, legislative stalemate and gridlock may result if the legislature is controlled by a different political party. If this division continues, the government may not be able to function efficiently for many years. In a parliamentary system, the parliament is the only source of electoral legitimacy. There is no separation of powers between the legislature and the executive -- the judiciary of course is independent but it stands outside the legislative sphere -- for the executive branch, usually called the government and headed by a prime minister, is chosen by the party that has a majority in the parliament or from a coalition reflecting a majority of the legislators. The head of state is a president with little power, and is usually chosen by the parliament. The prime minister and the government are accountable to the parliament and can be dismissed by it. Elections can be called at any time, providing flexibility. Since there is no formal separation of powers between legislative and executive, there is little chance of an impasse since a government or prime minister who loses the confidence of the parliament can be dismissed by it.
The parliamentary system can, however, produce a frequent turnover of governments and great instability. It can also produce sudden drastic changes of policy when an opposition
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gains a majority, which can create a different kind of instability.
There is no obvious answer to which system is better. The choice will often depend on history, the needs of the moment, and other factors. All the countries of the former Soviet bloc outside the Soviet Union, as well as the Baltic nations, adopted parliamentary regimes, in large part because they wanted to become a part of Western Europe which is almost entirely parliamentary. All the former non-Baltic components of the Soviet Union however, have adopted presidential systems.
It must also be decided whether to have a unicameral (single house) or a bicameral (upper and lower house) legislature. If the state is to be a federal state with relatively autonomous components, such as the United States or Germany, it may be desirable to have a second (usually upper house such as the U.S. Senate) legislative chamber that represents the interests of the components. The second chamber is sometimes limited to certain decisions such as those affecting taxes and judicial or other appointments, or to matters directly affecting the components themselves.
Whether to have a second chamber raises an additional question: how centralized is the state to be? How much authority and autonomy should be allocated to lower levels of government like regions or national units? How much independent authority should be allocated to cities, towns, and villages? The range of possibilities is wide, from highly autonomous units to total central control. There is good reason to allow as much autonomy to regional and local units as they can efficiently manage since a central administration is often unfamiliar with local conditions and needs. Also, participation in local government offers people a chance to participate directly in making many of the key decisions that affect their lives, and can be an important part of democratic self-governance.
THE JUDICIARY
History has established the need for an independent judiciary that can keep the other branches from transgressing constitutional limits, and particularly where basic human rights are concerned. This can be either the regular judicial system, as in the United States, or a special tribunal, a constitutional court, limited to deciding constitutional questions and a few other matters, as in Germany. In the former case, the ultimate authority is a supreme court composed of regular court judges who are appointed for life and normally handle appeals from lower courts. Their business is to decide specific cases and they normally decide constitutional questions only if necessary to settle the dispute at issue. Most constitutional court members, however, are law professors and others not drawn from the regular court system and usually serve one, and occasionally more, 8-12 year terms. They decide constitutional questions if requested by high government officials, regular courts, and in many countries by private citizens who claim that their rights have been violated. Most emerging democracies have
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chosen to create constitutional courts, partly because judicial review by ordinary judges is not in their tradition, and partly because they mistrust the existing judiciary.
Whatever system is chosen, the constitution must explicitly establish the courts’ authority to annul laws and other norms and acts inconsistent with the constitution. If there is a special constitutional court, it must not be burdened with extraneous responsibilities. Much of its work will be controversial, for one of its major responsibilities, particularly in the early years, is to establish the constitutional boundaries among governing authorities. Also, it will sometimes have to rule against the government in human rights cases. In all these instances, it will often be severely criticized by the losers. The constitution should not multiply the occasions for such attacks by giving the constitutional tribunals non-judicial or non-constitutional tasks, for at least in their early years they will lack the prestige and public support on which they depend for effectiveness.
Bolstering an independent judiciary is another reason why a constitution should not be too brief. The more specific a constitution, the easier it will be for the courts to point to relevant language in the document to support their more controversial decisions, and the less they will be seen as having acted according to the judges’ own subjective beliefs. Because the courts’ decisions will often be politically sensitive, their independence and impartiality must be constitutionally guaranteed. The judiciary must be an independent branch of government with a fixed term and not be under the Ministry of Justice. The judiciary should control its financial and administrative affairs, free from executive involvement, though necessarily subject to the legislature’s ultimate control over the budget. The constitution must also provide that the lower court judges apply the constitution in their decision-making. In many of the new democracies, all too often those judges ignore constitutional issues when making decisions.
PROTECTION OF HUMAN RIGHTS
It is now established that the constitution must protect human rights and that the courts, particularly the special constitutional tribunals, should play a major role in providing that protection. The U.S. Supreme Court pioneered this development, but tribunals throughout the world now recognize this responsibility. Where international human rights agreements ratified by their governments are at issue, judges have considered themselves bound to observe these treaties. They have often looked to the courts of other nations for guidance on common problems. The result has been the creation of an international constitutional law of human rights.
Every new constitution now contains a statement of basic human rights. This is not enough. The constitution must create institutions to make those rights enforceable. The constitution must specifically provide that persons who claim that their rights have been
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violated have ready access to a court, and that if a violation has occurred, the victim can obtain an adequate remedy for that violation. Many nations have found that an ombudsman (often an investigator or mediator of complaints) is useful in this regard. A special human rights office in the state prosecutor’s office can also be helpful.
Of vital importance to democracy is that the citizenry be able to learn whether the government is doing its job properly and acting in the best interests of the people. The constitution should contain provisions allowing citizens inexpensive and prompt access to all materials in government files, except those the exposure of which can be shown to endanger national security, personal privacy, law enforcement or some other vital national interest. Leaving to the legislature the matter of whether to adopt a measure like this is unwise, for many governments resist such measures or try to weaken them substantially. Few public officials are eager to expose their activities to public scrutiny.
ADOPTING THE CONSTITUTION
The final question is how should the constitution be adopted? By the special constituent assembly discussed earlier? By the regular parliament, as in many European countries? By the general public? Should the public’s involvement take place before or after the constitution is drafted? If the latter, how should the public’s participation be obtained? These and other questions have been answered in different ways, and though many political scientists believe that the approval of a constitution should be by the people, that has not been the universal approach.
Writing a constitution is an experiment, the results of which will always be significantly different from what was intended and anticipated. Moreover, the success of a constitution is usually the result of external factors -- the economy, the social forces at work within the society, the nation’s foreign relations, natural disasters and many other factors over which constitutional drafters have no control.
Despite these difficulties, new constitutions for emerging democracies can make a difference. They offer a rare opportunity to create a society in which human beings can live in peace and freedom. History does not offer a nation many such moments, and when they occur, the challenges must be met, for the nation’s future is at stake.
Herman Schwartz is a professor of law at American University, Washington College of Law in Washington, D.C., where he specializes in constitutional law, civil rights, and antitrust and utility regulation. He was a member of the U.S. Delegation to the 50th and 51st Sessions of the U.N. Human Rights Commission, in 1994 and 1995. He is the author of numerous scholarlyworks including the book The Struggle for Constitutional Justice in Post-Communist Europe, (University of Chicago Press, 2000).
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Comparative Constitutional Law: A Window into the Fundamental Requirements of a Just Legal Order
M.N.S. Sellers Regents’ Professor University of Baltimore United States
Polite society has always rested on the principle that “comparisons are odious.” 1 This observation is true, of course, in many circumstances, but has tended to inhibit the work of comparative legal scholars, who often seek to explain or excuse, rather than to evaluate, the differences between the legal systems that they study. Montesquieu rightly observed that laws should be adapted to the people they are meant to rule,2 but did not shrink from advancing his opinion concerning which legal systems were “les plus conformes à la raison.”3 This raises the question whether there are any universals in constitutional law. What does reason require of a just constitution? Or should we accept, with Thomas Hobbes, that is no justice or injustice at all, until a civil power asserts itself to tell us what justice will be, from now on.4
The proper purpose of constitutionalism has been, from the beginning, to advance the common good through law. 5 Partisans of constitutional justice must struggle to discern “what combination of powers in society, or what form of government, will compel the formation of good and equal laws, an impartial execution, and faithful interpretation of them, so that the citizens may constantly enjoy the benefit of them, and be sure of their continuance.”6 The architects of law and government have divided naturally into two parties, the partisans of constitutionalism or government “de jure” on the one hand, and the partisans of arbitrary power, or government “de facto” on the other. 7 The whole enterprise of constitutional government rests on the premise that some legal institutions are better (more just) than others, and that legal institutions should be constantly improved to achieve fuller justice. 8
1 See e.g. John Lydgate, Debate between the Horse, Goose and Sheep (ca. 1440). 2 Charles de Secondat, baron de la Brède et de Montesquieu, De l’Esprit des Lois (1748) at I.iii. 3 Ibid. at XXIX.ix. 4 Thomas Hobbes, Leviathan: or the Matter, Forme, and Power of a Commonwealth Ecclesiasticall and Civill (1651) at ch. XV. 72. 5 Plato, Politeia, I.xv. 342 E; Nomoi, IV. 715 B. cf. Aristotle, Politica III.iv.7; VII.ii.IO. 6 John Adams, A Defence of the Constitutions of Government of the United States of America (1787) at I. 128. 7 See M.N.S. Sellers, Republican Legal Theory: The History, Constitution and Purposes of Law in a Free State (2003) at 13-14. The insight is usually attributed to Donato Gianotti or to Livy, who wrote of an “imperia legum,” and to Aristotle. Cf. Brian Z. Tamantaha, On the Rule of Law: History, Politics, Theory (2004). 8 See, e.g., the Constitution of the United States of America, which seeks to “establish Justice,” to “insure domestic Tranquillity,” to “promote the general welfare” and to “secure the Blessings of Liberty” for those who are subject to its rule. (Preamble).
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Modern constitutionalism saw its greatest successes and most rapid advancement beginning in the eighteenth century with the French and American revolutions, but the constitutionalists of that period considered themselves to be part of a much longer historical continuum, going back through the English, Dutch and Italian resistance against arbitrary power to the political controversies of Greece and Rome.9 The Renaissance and Reformation in Europe, the English Civil War, and the “Glorious” Revolution of 1688 all encouraged closer to study of the principles of good government,10 but the basic elements of constitutional design (as understood by the advocates of constitutionalism) remained remarkably consistent for two thousand years. As John Adams memorably expressed it, the advantages and inconveniences of the different forms and combinations of government were as well known “at the neighing of the horse of Darius” as they are today.11
The eighteenth-century pioneers of practical constitutionalism saw themselves as participants in the regular course of the progressive improvement of the arts and sciences, seeking the general advancement of “civilization” and “humanity.” 12 Their study of the theory and practice of government led to a growing consensus in Europe and America that even well- established autocracies found hard to resist.13 The introduction of “checks and balances” into government, the maintenance of an independent judiciary, the protection of property, of personal liberty, of freedom of speech, of religion, and of the press, all reflected growing “knowledge” of “the principles and constructions of free governments” on which the “virtue” and the “happiness of life” depend.14 These “checks and balances of a free government” include representation in the legislature, periodic elections, and broad suffrage.15 Proponents of constitutional government have sought to realise justice by founding laws and institutions “on the simple principles of nature,” 16 discovered “by use of reason and the senses.”17
What place, then, for comparisons? Documents such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights have established certain transcendent standards of law and justice that apply to all societies, such as the duty to “act towards one another in a spirit of brotherhood,” not to discriminate on the basis of race or color, the guarantee of personal liberty, the ban on slavery, the prohibition of torture, the right to equality before the law, the right to effective legal remedies, to impartial tribunals, to privacy, to own property, to periodic and genuine elections, to universal and equal suffrage, and so forth. These standards were clarified by cross-cultural consensus, but do not depend on culture
9 See, e.g., M.N.S. Sellers, The Sacred Fire of Liberty (1998). 10 See Adams, Defence at III.210-211. 11 Adams, Defence at I.ii. 12 Ibid. at I.i. 13 Ibid. 14 Ibid. at I.ii. 15 Ibid. at I.iii. 16 Ibid. at I.xiii. 17 Ibid. at I.xiii-xiv.
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for their validity. They are necessary corollaries to human nature, once we accept the “inherent dignity” of our fellow human beings.
The purpose and value of comparative constitutional law arises, then, not from identifying these fundamental requirements of a just legal order, which will be clear whenever human beings are free to consider and openly to discuss the requisites of justice, without coercion. The value of comparative constitutional law arises rather from comparing the efficacy with which the many various constitutional orders in the world realize and advance a just legal order, in the very different political, cultural, regional, historical and other circumstances in which they find themselves. Different societies face differing situations, but the human needs and capabilities with which they work do not differ very much. The benefit of comparisons is that they clarify the similarities (and dissimilarities) of the surrounding circumstances, and provide those making constitutional comparisons with inspiration to improve the institutions of their own legal order, in the light of the experience of others.
The study of comparative constitutional law, like all legal study, is (or ought to be) a normative enterprise. The purpose of law is to establish justice and to advance the common good of the people. Many of the fundamental requirements of justice are well known everywhere. Most of the institutional structures that will advance and protect justice best have been well known for thousands of years. Legal science is intimately connected with human nature, which does not change, and is well understood by all human beings. The comparative study of constitutional law provides those who undertake it with better insights into where their own existing legal institutions fall short in realizing universal goals, and how to improve them. Lawyers and legal scholars should take the side of justice in the battle between de jure and de facto government. This means challenging the status quo, when it fails to meet well- established standards of substantive and procedural justice. Comparativists and constitutional scholars should be the partisans of the public welfare. When, for reasons of politeness, fashion (or self-interest) they refuse this role, they betray the sense and purpose of their craft.
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Plenary II
Religion, State and Constitution
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The Multi-Dimensional Nature of Religion
Alan Brownstein University of California, Davis School of Law United States
International law struggles with perceived conflicts between religious liberty and other constitutional values and principles that are fundamental to a democratic system. Religious practices may clash with principles of gender equality. Leyla Sahin v. Turkey [GC], no. 44774/98 ECHR 2005-XI. The protection of religious beliefs may justify restrictions on freedom of expression. Otto-Preminger-Institut v. Austria, 20 September 1994, Series A) no. 295-A; Wingrove v. the United Kingdom, 25 November 1996, Reports of Judgments and Decisions 1996-V.
Less attention is directed at the internal contradictions within a legal framework that strives to protect religious belief and practice against burdensome regulation and discriminatory treatment. Yet the same conflicts that are alleged to exist between religious liberty and external rights of equality and speech exist within any constitutional framework designed to protect religion against state interference and control.
At a minimum religion subsumes at least three fundamental, and sometimes conflicting, constitutional values that typically receive independent recognition and protection in a democratic system: personal autonomy and liberty, freedom of speech, and equality. Obviously, religious freedom protects personal liberty – the ability to practice one’s faith free from governmental interference. This value is essentially a dignitary interest. It is grounded on a basic commitment to the autonomy rights of individuals to make important self-defining decisions that are crucial to the development of their identities. Other liberty rights that reflect a similar commitment to personal autonomy include rights related to intimate association, marriage, and reproductive freedom.
Religious freedom also implicates freedom of speech. There is a speech dimension to many religious activities including sermons, prayer, proselytizing, and the publishing of books and periodicals. As an independent source of moral values, religion clearly plays a role in the marketplace of ideas. While freedom of speech serves important dignitary and autonomy values, it is primarily protected to further instrumental goals. Freedom of speech is the foundation of democratic self government because the right to vote lacks utility and legitimacy if the electorate is not free to publish and obtain information related to public policy issues and to debate those issues free from sanction. The most serious abridgments of freedom of speech involve viewpoint discriminatory laws through which the government distorts debate and manipulates electoral and policy-related outcomes.
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Finally, there is an important equality dimension to the protection provided to religion. Religion does more than describe the beliefs of individuals; it defines the identity of groups and communities. Discrimination against classes defined by religious affiliation is problematic for many of the same reasons that discrimination against classes defined by race, ethnicity, gender, and sexual orientation is constitutionally troubling. Constitutional norms are often violated when majoritarian groups oppress historically victimized and vulnerable minorities or exclude them from the public life and benefits of society.
The multi-faceted nature of religion substantially complicates its protection under any constitutional regime which tries to respect each of the aforementioned values. While personal autonomy, freedom of speech and equality values sometimes overlap each other, they are also often in tension. For example, there is no mandatory equality requirement among autonomy interests. State recognition of certain kinds of autonomy interests, but not others, may constitute unequal treatment in some abstract sense, but does not raise constitutional concerns. Thus, the fact that the state protects one aspect of personal autonomy, such as the right to practice one’s religion, does not require it to protect other important autonomy interests, such as the right to pursue one’s trade or vocation, to the same extent. Accordingly, accommodations of religious exercise, including exemptions from neutral laws of general applicability, do not have to be provided to secular individuals whose ability to pursue their personal preferences are similarly burdened by government regulations.
Freedom of speech, by contrast, does mandate formal equality by requiring government neutrality among the subjects and viewpoints of expression. Here, any attempt to exempt religious expressive activities from general regulations without providing parallel exemptions for secular speech will raise serious constitutional questions. A law exempting a religious revival meeting from a general law banning expressive activities after 9:00 pm in a residential park would be challenged in the United States on the grounds that it unconstitutionally favors religious speech.
The tension between these competing constitutional frameworks – one grounded in autonomy and the other protecting freedom of speech – is not easily resolved. Of course, many religious practices, such as those that relate to the preparation and consumption of food and alcohol, are essentially non-expressive in nature. Exempting these practices from general laws creates no conflict with free speech requirements. But much of what constitutes the exercise of religion has a substantial speech dimension, and is protected as speech against discriminatory treatment under United States constitutional law. Good News Club v. Milford Central School, 533 U.S. 98 (2001). When these religious expressive activities are recognized and protected as speech for constitutional purposes, religious accommodations and exemptions do not appear to be protecting religious autonomy in the name of human dignity. Instead, they are likely to be perceived as the privileging of religious viewpoints – a preference that clashes sharply with the instrumental goal of preventing government action that distorts the marketplace of ideas.
Another example illustrates the potential conflict between individual and associational autonomy and religious equality. It is common in many countries for state subsidized social
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services and educational programs to be organized, and provided to beneficiaries, through the auspices of religious institutions. These arrangements further religious autonomy in various ways. Beneficiaries may believe that having such services provided in a religious environment is essential to their ability to live, and raise their children, according to the dictates of their faith. Moreover, religious institutions may assert a claim to collective autonomy in operating programs in a way that is consistent with their faith.
The fragmentation of social and educational services along religious lines may impose serious inequality costs on the members of minority faiths, however. In some locations, the most convenient or highest quality services may be provided in a pervasive religious environment that runs counter to minority beliefs. Further, if religious institutions are permitted to discriminate on the basis of religion in hiring employees to staff publicly subsidized programs, religious minorities may be ineligible for a significant percentage of state funded job opportunities in the social service and educational areas. In the latter case, no one would doubt that there is a real, material cost to the members of a racial minority in having social and educational services fragmented along racial lines in a way that denied them the opportunity to seek employment in programs operated under the auspices of the majority race. Similar costs and burdens are intrinsic to the fragmentation of services along religious lines.
An understanding of the multiple and diverse values that underlay a constitutional system committed to the protection of religious liberty and equality may be helpful in analyzing tensions between religion and external free speech and equality values. For example, one of the reasons that it is so difficult to justify restrictions on third party speech that offends the sensibilities of religious communities is that religious individuals and institutions are also speakers in the market place of ideas. If religious actors seek to have their expressive activities protected as speech for constitutional purposes when their words are employed as a sword to condemn others to damnation or as abominations, their free speech claims create considerable dissonance with the argument that religious communities should be shielded from insult and indignity by state restrictions on the speech of others. The judicial function of balancing the harm caused to group sensibilities by deliberately hurtful speech against the free speech rights of the speaker is a difficult task in most circumstances. It becomes even more complicated, however, when the victimized groups assert conflicting values: the right to peacefully exercise their autonomy in dignity and the right to aggressively assert their beliefs by challenging the identity and conduct of others in the cultural and political arena.
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The Expression of Cultural and Religious Practice: A Constitutional Test
Hlako Choma University of Venda South Africa
Various conventions and national constitutions are differently worded and that the interpretation of national constitutions, in particular, reflects different approaches to the concepts of equality and non‐discrimination. The different approach adopted in the different national jurisdictions arise not only from different textual provisions and from different historical circumstances, but also from different jurisprudential and philosophical understanding of equality.
The jurisprudence of the courts make clear that the proper reach of the equality right must be determined by reference to the society’s history and the underlying values of the Constitution. It has been observed that a major constitutional object is the creation of an non‐racial and non‐ sexist egalitarian society underpinned by human dignity, the rule of law, a democratic ethos and human rights. From there emerges a concept of equality that goes beyond mere formal equality and mere non‐discrimination which requires identical treatment, whatever the starting point or impact.
The question is, how does the state, in limiting religious freedom, conform to the standards of an open and democratic society based on human dignity, equality and freedom? The hope is that the conclusion of this paper will then be able to be extended to more controversial cases, in particular, involving limits on the right to freedom of expression1.
1.1. FIRST AMENDMENT BACKROUND
The first amendment of the United States Constitution provides that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The two clauses, the Establishment Clause and Free Exercise Clause, have provided considerable grounds for litigation. One other reference to religion is found in the United States Constitution. Article IV provides that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” The central purpose of the Establishment Clause is to ensure governmental neutrality in matters of religion. “When government activities touch on the religious sphere, they must be secular in purpose, evenhanded in operation, and neutral in primary impact2.
The Canadian Supreme Court in R v Big M Drug Mart Ltd 3 made a distinction between an exercise clause and an establishment clause. The relevance of the establishment clause to the
1 Demise Meyerson, Rights Limited: Freedom of Expression, Religion and the South African Constitution. 2 Gillette v United State 401 US 437 (1971) 3 18 DLR (4th)321
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question of freedom of religion was carefully canvassed by the Court. It has been suggested that the establishment clause does not simply prohibit coercion but prevents endorsement and acknowledgement by the state of religion4. The Canadian Supreme Court held as follows: “The values that underlie our political and philosophical traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided, inter alia, only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own. Religions belief and practice are historically prototypical and, in many ways, paradigmatic of conscientiously‐held beliefs and manifestations and are therefore protected by the Canadian Charter. Equally protected, and for the same reasons, are expressions and manifestations of religious non‐belief and refusals to participate in religious practice. It may perhaps be that freedom of conscience and religion extends beyond these principles to prohibit other sorts of governmental involvement in matters having to do with religion. For the present case it is sufficient to say that whatever else freedom of conscience and religion may mean, it must at the very least mean this: Government may not coerce individuals to affirm a specific religious belief or to manifest a specific religious practice for a certain sectarian purpose.”5
The right of free exercise of religion implies the right to free exercise of non‐religion and no one should therefore be coerced into commitment to any religion. Consequently the free exercise clause is sufficient to forbid the state to coerce any minority group into a contrary belief.6
1.2 PRINCE v PRESIDENT OF THE LAW SOCIETY, CAPE OF GOOD HOPE AND OTHERS7. A SOUTH AFRICAN CASE LAW
This paper will share views and experience on the particular case of allegedly infringements on religious freedom, the right which is protected in section 15(1) of the South African Bill of Rights8: “everyone has the right to freedom of conscience, religion thought, belief and opinion.” What counts as a religion is of course, an interesting but difficult question. Providing an answer to it is, however, not strictly necessary for the purposes of this paper. The freedom of religious issues is raised by legislation which limits actions motivated by religious convictions, as well as by legislation which limits the freedom to believe. It is true that the South African Constitution, particularly the Bill of Rights does not explicitly state this limitation, by contrast, for instance, with the European Convention on Human Rights and the International Covenant
4 Cachalia et al, Fundamental Rights in the New Constitution. See also Kevin “Seamus” Hasson, The Right to be Wrong: Ending the Culture War Over Religion in America, Encounter Books, 2005. http://en.Wikipedia.org/wiki/freedom of religion 5 R v Big M Drug Mart Ltd 18 DLR (4th) 321 in Cachalia et al Fundamental Rights in the New Constitution 6 Luynch v Donnelly 465 US 668 (1984) read with County of Allegheny v Greeter Pittsburgh ACLU 492 US 573 see also Everson v Board of Education of the Township of Ewing 330 US 1 (1947) 7 1998 (8) BchR 976 (c) 8 South African Constitution, Act 108 of 1996. See also Christian Education South Africa v Minister of Education 2000 (10) BCLR 1051 (cc)
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on Civil and Political Rights which state the limitation9. Article 9 of the European Convention states that everyone has the right to freedom of thoughts, consicience and religion, and to manifest his religion or belief, in worship, teaching, practice and observance. Article 18 of the International Covenant provides that freedom of religion includes the right to manifest one’s religion and belief in worship, observance, practice or teaching.
Prince’s case, applicant desired to qualified himself to be admitted as an attorney and had fulfilled most of the statutory requirements save for a period of community service in terms of section 2A(a) (ii) of the Attorneys10 The Law Society of the Western Cape Province declined to register his contract to perform community service with his principal adopting the view that Applicant was not a fit and proper person to be admitted as an attorney, as he had two previous convictions for the possession of dagga and had made it clear that he intended to continue to use dagga in the future. Applicant was an adherent of the Rastafari religion. The Rastafarians use dagga for spiritual, medicinal, culinary and ceremonial purposes which it is alleged form an integral part of the religious practice of adherents of Rastafari religion. Applicant accordingly adopted the stance that the Law Society’s decision had the effect of violating the constitutional guarantee of the right to freedom of religion in terms of section 15(1) of the South Africa Constitution11, as well as the guarantee contained in section 31(1) of the South African Constitution which state that no one may be denied the right with other members of a religious community to practice their religion. It was also contended by the Applicant that the decision in question also infringed Applicant’s right under section 22 of the Constitution, which provide that one has the right to freely choose his own profession. The Law Society’s decision not to register applicant contract to perform community service brought about unfair discrimination against Rastafarians in contravention of section 9(3) of the Constitution.
Applicant launched the instant proceedings in which he sought an order reviewing and setting aside the Law Society’s decision and directing it to register his contract of community service. The Minister of Justice and the Attorney‐General sought leave to intervene as Respondents in the application and such leave was granted.
9 Denis Meyerson, Limited Rights: Freedom of Religion and the South African Constitution. 10 Act 53 of 1979. Christian Education South Africa v Minister of Education 2000 (10) BCLR 1051 (cc). There can be no doubt that the right to freedom of religion, belief and opinion in the open and democratic society contemplated by the Constitution is important. The right to believe or not to believe, and to act or not to act according to his or her beliefs or non‐beliefs, is one of the key ingredients of any person’s dignity. 11 Act 108 of 1996. Wittmann v Deutscher Schulverein, Pretoria and Others 1999(1) BCLR 92 (T), Section 14 of the interim Constitution and section 15 of the final Constitution explain the nature of the right, the word “religion” in these provisions is not neutral but denotes a particular system of faith and worship, “religious observance” is an act of a religions charter. “Religious education” does not constitute “religious observance” even if religious instruction did not amount to religious observance, the Constitutions have conferred on State and State‐aided educational institutions the right to conduct religious observances, provided that attendance at such is voluntary that right cannot be nullified e the right to abstain from them but choose not do so.
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Pillay v Kwa Zulu‐Natal MEC of Education and others12
The background
Appellant’s daughter who is a learner at Durban Girls High School (“the school”) returned from the school holiday in the first week of the fourth term in the year 2004 wearing a nose stud, having had her nose pierced during the holiday. The school’s code of conduct provides that, in respect of jewellery, earrings‐plain round studs/sleepers may be worn with one in each ear lobe at the same level and further that no other jewellery may be worn except a watch.
Third Respondent sought an explanation from Appellant for her daughter’s decision to wear the nose stud. Appellant, in response, stated that she allowed the piercing for several reasons including the fact that this is a time honoured tradition. She and her daughter come from South Indian family that has sought to maintain a cultural identity by respecting and implementing the traditions of the women before them.
Usually, a young woman, upon her physical maturity, would get her nose pierced, as an indication that she is now eligible for marriage. While this physically orientated reasoning no longer applies, they do still use the tradition to honour their daughters as responsible young adults.
After her sixteenth birthday, her grandmother will replace the current gold stud with a diamond stud. This will be done as part of a religious ritual to honour and bless her daughter. It is also a way in which the elders of the household bestow worldly goods including other pieces of jewellery upon the young women. This serves not only to indicate that they value their daughters but is in keeping with Indian tradition, that their daughters are the Luxmi (goddess of prosperity) and Light of the house.
She herself has adhered to this tradition and wears a nose stud. From this perspective she cannot and will not impose a double standard on her daughter. He daughter is not wearing the nose stud for adornment and fashion purpose. Family traditions are handed down from generation to generation, not taken up as a trend.
Decision against the wearing of the nose stud.
On 2nd February 2005 Fourth Respondent took a decision that Appellant’s daughter should not be allowed to wear the nose stud. This decision was to take effect on 4th April 2005.
Appellant then addressed a letter to First Respondent appealing and asserting that Fourth Respondent’s decision was a violation of her daughter’s constitutional rights to practice the religious and cultural traditions of her choice especially when they are common practice to the rest of her family; that this right takes precedence over any school code particularly when it is
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not related to, nor has any bearing on, the actual manner, attitude and conduct of the learner at school.
Second Respondent, in letter dated 6th May 2005 replied on behalf of First Respondent refusing Appellant’s appeal. In endorsing the decision of the Fourth Respondent, Second Respondent wrote that “Schools are not obliged, as it is unreasonable to expect them, to accommodate all idiosyncratic practices.”
In the letter dated 13th May 2005 Third Respondent advised Appellant that the nose stud should be removed. Appellant’s daughter was accordingly given until Monday 23rd May 2005 to remove the nose stud, failing which the matter would be referred to Fourth Respondent for disciplinary action to be taken against Appellant’s daughter.
The rebuff from Respondents prompted Appellant, as complainant, to institute proceedings and seek an order referred to in paragraph 1 above, in terms of section 20 of the Promotion of Equality and Prevention of Unfair Discrimination Act no.4 of 2000 (“the Equality Act”).
After hearing the evidence of Appellant, Dr. Rambilass and Mrs. A Martin, who were the only witnesses who testified, the court below came to the conclusion that: ● the school’s action against Appellant’s daughter were reasonable and fair in the circumstances. ● the school did not discriminate or unfairly discriminate against Appellant’s daughter. ● Appellant’s daughter’s wearing of the nose stud was in violation of the school’s code.
The preparation of the code of conduct, in schools, is a requirement imposed on the governing body of a public school by section 8 (1) of the South Africa Schools Act 84 of 1996 (“the Schools Act”).
The Minister of Education may in terms of section 8 (3) of the Schools Act determine guidelines for the consideration of governing bodies in adopting a code of conduct for learners.
The Guidelines for the consideration of governing bodies in adopting a code of conduct for learners were promulgated in Government Notice 776 of 1998 – Government Gazette 1890 dated 15th May 1998 (“the Guidelines”).
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Conclusion
There can be little doubt about the importance of the limitation in the war on drugs and that war serves an important pressing social purpose, the prevention of harm caused by the abuse of dependence‐producing substance13. The abuse of drugs is harmful to those who abuse them and therefore to society. The government has a clear interest in prohibiting the abuse of harmful drugs. South Africa has an international obligations to fight the war against drugs subject to the Constitution.
The government objective in prohibiting the use and possession of cannabis arises from the belief that its abuse may cause psychological and physical harm. On the evidence of the experts on both side, it is common cause that cannabis is a harmful drug. However, such harm is cumulative and dose‐related. Uncontrolled use of cannabis may lead to the very harm that the legislation seeks to prevent. Effective prevention of the abuse of cannabis and the suppression of trafficking in cannabis are therefore legitimate government goals14.
The government does not contend that the achievement of its goals requires it to impose an absolute ban on the use or possession of drugs. Nor was it contended that any and all uses of cannabis in any circumstances are harmful. The use and possession of cannabis for research or analytical purposes under the control of the government can hardly be said to be harmful, let alone an abuse of cannabis. Similarly, the use of cannabis for medicinal purpose under the supervision of a medical doctor cannot be said to be harmful. These uses of cannabis are exempted because they do not undermine the purpose of the prohibition.
The most important Section of the South African Bill of Rights is the so‐called “limitation clause” laying down, as it does, the conditions under which a right protected by the Bill may permissibly be limited. This paper contributes to the understanding of the limitation clause.
13 Bhulwana and gwandiso, referred to above. The in United State v Hardman 297F3d (10th Cir 2002). The Controlled Substances Act does not and did not before the issuance of the injunction prohibit the plainfiffs from practicing their religion. The 1971 Convention on Psychotropic Substances does not and did not before the issuance of the injunction prohibit the religious use of the UDV’s sacrament, hoasca. Blake supra, where the defence of freedom of religion in interposed to a marijuana change, it is not uncommon for the court to assume that the alleged religion is bonafide and the defendant is sincerely subscribed to its doctrine. See United States v Middleton, 690F2d 820 (11th Cir. 1982). 14 Prince’s case. See also OCentro Espirital Beneficiente Uniqo Do Vegetal, et al v John Aschcroft, et al, at the outset it is important to recognize that the issue before court is not the plaintiff’s right to believe (imposition of the plaintiffs’ free exercise of their religious beliefs. What is at issue is their right to practice their religion. See Hobbie v Unemployment Appeals Community, 480 US 136 (1987). Compelling a party to forego a religious practice imposes a substantial burden on that party. Article 18(1) of the United Nation International Covenant on Civil and Political rights ratified by the United States in 1992 provides that everyone shall have the right to freedom of thought, conscience and religion.
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Religious Freedom and Groups
John Garvey Boston College Law School United States
America has a great tradition of religious liberty. James Madison, the architect of the First Amendment, said that this principle “promised a lustre to our country.”1 In the twentieth century the Supreme Court enlarged the scope of the principle greatly when it applied the free exercise2 and the establishment3 clauses to the states. Today all our government institutions, from the lowest municipal agency to the Congress of the United States, are obliged to respect the freedom of religion.
What is in doubt today is not the scope of the freedom but its strength. A right may cover certain people and activities, as a suit of armor may cover the wearer; but it may protect them only against certain attacks – against arrows, say, but not armor-piercing bullets.4 This concern, about the strength of our religious freedom, has attracted a lot of attention in the last twenty years, since the Supreme Court’s decision in Employment Division v. Smith.5 Smith held that the first amendment protects religious actors against discrimination, but not against laws that are neutral and generally applicable. So, for example, a law that forbids Mormons to run for office would be unconstitutional. But a law that forbids consumption of alcohol, applied to Catholics who took wine at mass, would not be.
I want to say a word about the Smith rule and religious groups. There is a tendency to deny protection to religious groups when their interests conflict with individual interests. (Protecting individual concerns is said to be a neutral reason for subordinating religious liberty.) There is something very American about this. In teaching about religious freedom we tend to adopt an individualist perspective. Our hypotheticals focus on religious dissenters: the Mormon office-seeker, the Catholic mass-goer, the Jehovah’s Witness peddling salvation door to door, the conscientious objector to the draft. Justice Douglas once said, by way of explaining his vote in a case, that “religion is an individual experience.”6 If this is so, then maybe group claims do not rise to the full dignity of first amendment rights; and this, on top of the Smith rule, explains why they lose out so often in competition with individual interests.
I don’t think Justice Douglas was right. For many people religion is a group experience. Churches are the paradigm example. The first two big Supreme Court cases after Smith involved churches. One, an Afro-Cuban religion, wanted to build a church in Hialeah where
1 John Noonan, The Lustre of Our Country 4 (1998). 2 Cantwell v. Connecticut, 310 U.S. 296 (1940). 3 Everson v. Board of Education, 330 U.S. 1 (1947). 4 Frederick Schauer, Must Speech Be Special?, 78 Nw. U.L. Rev. 1284 (1983). 5 494 U.S. 872 (1990). 6 Wisconsin v. Yoder, 406 U.S. 205, 243 (1972) (Douglas, J., dissenting).
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they would do animal sacrifice.7 One was a Catholic Church that wanted to enlarge its building against the wishes of a city historic landmarks commission.8 But there are many religious groups besides churches: schools, hospitals, social service organizations; Mormon gymnasiums, Catholic Charities, the Fellowship of Christian Athletes, the International Network of Prison Ministries, and so on.
In modern American society these groups come into conflict with the law in two different ways. Though it was not always so, today the government regulates almost every aspect of daily life. Conflicts arise “from efforts by federal and state governments to provide welfare and unemployment benefits; to regulate health, education, labor relations, and the environment; to promote civil rights; to control fraud; and to administer a variety of tax programs.”9 Let me give a few examples. • Case 1. A California law (the Women’s Contraception Equity Act) requires Catholic Charities to include prescription contraceptives in its health insurance plan. Catholic Charities believes that artificial contraception is sinful.10 • Case 2. The Massachusetts Department of Early Education and Care will not license adoption agencies that discriminate on the basis of sexual orientation in doing adoptions.11 Catholic Charities had to give up its license because of its stand on gay marriage. • Case 3. The California Court of Appeal has held that a Catholic hospital is guilty of medical malpractice if its emergency room won’t provide information about and access to the morning-after pill. The hospital viewed the morning-after pill under some circumstances as a form of abortion.12
This is one way that religious groups come into conflict with the government. The other arises from the government’s power to tax and spend. Dallin Oaks, a former law professor at the University of Chicago and a member of the Quorum of the Twelve Apostles in the LDS Church, hypothesized that there is a first amendment equilibrium of establishment and free exercise. As government accommodation of religion increases, so too does the amount of regulation.13 In the last quarter century we have seen such accommodation. The Supreme Court has abandoned its insistence on strict separation of church and state, and has allowed government support for parochial schools14 and religious providers of social services.15 During this same period the Court has relaxed its free exercise protection. It turned from a rule of
7 Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). 8 City of Boerne v. Flores, 521 U.S. 507 (1997). 9 McConnell, Garvey, and Berg, Religion and the Constitution 85 (2d ed. 2006). 10 Catholic Charities of Sacramento v. Superior Court, 32 Cal. 4th 527 (Sup. Ct.), cert. denied, 543 U.S. 816 (2004). 11 102 Code Mass. Regs. § 1.03(1). 12 Brownfield v. Daniel Freeman Marina Hospital, 208 Cal. App.3d 405 (Ct. App. 1989). 13 Oaks, Separation, Accommodation and the Future of Church and State, 35 DePaul L. Rev. 1 (1985). 14 Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Mitchell v. Helms, 530 U.S. 793 (2000). 15 Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 42 U.S.C. § 604A; Bowen v. Kendrick, 487 U.S. 589 (1988); Freedom From Religion Foundation v. McCallum, 324 F.3d 880 (7th Cir. 2003). Cf. Hein v. Freedom from Religion Foundation, 551 U.S. 587 (2008). See generally McConnell, Garvey & Berg, supra note 9, at 397-398.
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strict scrutiny for any substantial infringement of religious liberty16 to a rule that does little more than forbid discrimination against religious actors.17
Oaks was not sure what produced this equilibrium. “It may be as simple as the common-sense operation of accountability and fairness[.]”18 The government has an interest in seeing that its money is spent in a way it approves of. More plainly, he who pays the piper calls the tune. Consider these cases: • Case 4. The Salvation Army receives government funds for a domestic violence shelter. A federal court holds that it may not prefer employees who subscribe to its religious principles.19 • Case 5. The City of Cleveland has a voucher program in which parochial schools can participate. It forbids participating schools to discriminate on the basis of religion in admissions.20 • Case 6. Catholic hospitals generally support the health care bills currently winding through Congress. But they worry that publicly funded plans will force hospitals to counsel about, refer and provide for abortions.21
All these cases have a similar alignment. On one side is a religious group (school, social service agency, hospital) asserting a constitutional right to act on its beliefs. On the other is an individual seeking some service (contraception, adoption, abortion, employment, education) that the group, for religious reasons, is reluctant to provide. The individuals invoke two kinds of reasons for preferring their interests over those of the group: a right to equal treatment, and a right to self-determination. Case 1 turns on a law that has “the purpose of eliminating a form of gender discrimination in health benefits.”22 Cases 2, 4, and 5 involve state and federal rules that forbid discrimination on the basis of sexual orientation and religion. Case 3 holds “that [the woman’s] right to control her treatment must prevail over [the hospital’s] moral and religious convictions.”23 Case 6 might turn on the same principle. (The law is still in the pipeline.)
This is not a summary of the state of the law. Some cases come out the other way on these issues.24 But the position I have described is an influential one, and it seems consonant with the very American ideals of personal equality and individual self-determination. Group rights seem to conflict with these ideals. A school that admits Baptists but not Muslims seems
16 Sherbert v. Verner, 374 U.S. 398 (1963). 17 Employment Division v. Smith, supra note 5. 18 Oaks, supra note 13, at __. 19 Dodge v. The Salvation Army, 1989 WL 53857 (S.D. Miss. 1989). 20 Zelman v. Simmons-Harris, supra note 14; Ohio Rev. Code Ann. § 3313.976(A)(4). 21 See America’s Affordable Health Choices Act of 2009, H.R. 3200 § 115 (111th Cong., 1st Sess. (2009). 22 32 Cal.4th at 549. 23 208 Cal. App. 3d at 412. 24 See, e.g., Combs v. Central Texas Annual Conference of the United Methodist Church, 173 F.3d 343 (5th Cir. 1999) (sex discrimination in employment); Scharon v. St. Luke’s Episcopal Presbyterian Hospitals, 929 F.2d 360 (8th Cir. 1991) (same); Hall v. Baptist Memorial Health Care Corp., 215 F.3d 618, 625 (6th Cir. 2000) (religion-based hiring by a recipient of federal funds).
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to deny the equality of persons. So too with a women’s shelter that won’t hire Catholics. A hospital that won’t do abortions makes it harder for a woman to determine the course of her health care. Why should the interests of an artificial entity trump these claims? People are real. Religious groups are not. They are just associations of people.
The first amendment (both the establishment and the free exercise clauses) tells us we should not insist that all religions share the same beliefs. This includes the belief that personal autonomy and equality are the fundamental building blocks in our system of values. In fact, for many Christian churches the fundamental unit is the group, not the individual. Here are statements of the point by influential Catholic and Protestant theologians:
God’s relationship to us and our relationship to God is not exclusively, nor even primarily, individual and personal. It is corporate and communal.25
Not the individual but the ‘church’ is called, to it belongs the promise. . . . The individual . . . finds deliverance, but only because he belongs to the . . . community, not because of his personality.26
Such churches and religious groups are not voluntary associations of autonomous individuals. One might become a member without choosing to do so. A child of a Jewish mother is born a Jew. Baptism, the Christian rite of initiation, is often administered to infants. And faith is not a stance one voluntarily assumes. It is a gift from God. 27
The Supreme Court has acknowledged this point – that some religions put the group ahead of the individual – in disputes over the control of church property. The Episcopal Church in America has recently been divided over the ordination of gay bishops. When Gene Robinson, an openly gay man, was consecrated bishop of New Hampshire in 2004 the priest at the Church of the Redeemer in Rochester, New Hampshire, a Rev. Donald Wilson, refused to accept his authority. Wilson was removed, and the next Sunday 40 parishoners walked out of the service in protest. Suppose a majority of the parishoners sided with Wilson and voted to join the Catholic Church. Could they take the building with them – the physical Church of the Redeemer? The Supreme Court has held that courts should defer to the Episcopal Church on this question.28 The canons of the Episcopal Church say the decision is up to Bishop Robinson.29 This rule (the rule of deference to church authority) holds “that the Church as a spiritual body has liberties which will be given protection directly rather than derivatively[. And] it gives that protection to liberties which, in their essence, differ from those possessed by the members of
25 Richard McBrien, Catholocism 731 (1981). 26 Rudolf Bultmann, Jesus and the Word 47 (1958). 27 Garvey, What Are Freedoms For? 148 (1996). 28 Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952). The Court allows states to choose this rule for resolving church property disputes. Alternatively, states may choose the rule of neutral principles. Jones v. Wolf, 443 U.S. 595 (1979). 29 The Canons of the General Convention of the Episcopal Church, Canon 7 (1991).
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the Church.”30 When the Supreme Court announced the current, less protective, rule about religious freedom in Smith, it left this doctrine in place.31
In one way the church property cases are easier than the six I have posed. The conflict is between a church and its members, and there are reasons for siding with the church in this situation that don’t apply in disputes with nonmembers: perhaps that the members have impliedly consented to the rules; or they have accepted the benefits of membership and so should accept the burdens. You can’t say these things about a rape victim who shows up at a Catholic hospital, or a nonbelieving child who takes a voucher to a parochial school. On the other hand there is something uniquely insensitive about conscripting religious organizations to provide nonmembers with services that violate the group’s deeply held beliefs. This is particularly true when the services (for reproductive health, adoption, employment, education, etc.) are available from other providers.
This is a complex question, with refinements I do not have space to explore. One concerns the distinction between Cases 1-3 and Cases 4-6. The government can sometimes attach strings to its financial aid. If Massachusetts is paying agencies to handle adoptions, and the state recognizes gay marriages, it should be able to insist that funded agencies serve all married couples. On the other hand the state can not insist that funded agencies adhere to the political tenets of the Democratic Party. A second refinement concerns distinctions among religious groups. They are not all equally ‘religious,’ and consequently not entitled to the same degree of first amendment protection. There is a spectrum with churches at one end, and at the other, groups just faintly tinged with religious color. (Consider the degree to which Duke University is a Methodist institution.)
The point of this short paper is to argue that the constitution’s guarantee of religious freedom extends to groups as well as individuals, and that the rules enforcing that guarantee should not reflexively favor individual interests over the rights of groups.
30 Howe, Foreword: Political Theory and the Nature of Liberty, 67 Harv. L. Rev. 91, 92 (1953). 31 Laycock, The Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1, 42-44.
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Germany: Religion, State and Constitution
Prof. Dr. Helmut Grothe Freie Universität Berlin Germany
As is the case for most modern constitutions, the German Grundgesetz (Basic Law) provides for the separation of church and state. Classically, the doctrine of separation of church and state encompasses two principles, freedom of religion and the secularity and religious neutrality of government. You will find both of these principles in the Grundgesetz. However, the Grundgesetz also stipulates a cooperation between church and state, most importantly by guaranteeing the subject ‘religion’ in public schools and by providing for a ‘church tax’. For this reason, it is sometimes proposed that the separation of church and state in Germany is hinkend, i.e. limping. While this choice of wording is questionable, Germany surely is not an example of a strictly laicist state. In the following, I will illustrate the German notion of religious neutrality and freedom of religion with some recent case law, before I turn to the distinctively German synergies between church and state.
1. Secularity and Religious Neutrality of the State Interestingly, the principle of secularity is not stipulated by the Grundgesetz itself. Instead, Art. 140 GG incorporates Art. 136 et seq. of the Weimar Constitution (WRV) of 1919. Art. 137 WRV decrees that there is no state church. Further, Art. 137 WRV guarantees the freedom to form religious congregations and allows religious groups to independently arrange their own affairs, including the appointment to offices. This institutional separation of church and state is complemented by an implicit commandment of religious neutrality of the state, i.e. an attitude which comprehensively fosters religious freedom for all denominations. At the same time, it is accepted wisdom that the deep cultural ties with the Christian religion and its impact on the German culture need not be disavowed. In the year 1995, the Cruxifix-decision of the German Federal Constitutional Court stirred considerable political and legal debate (BVerfGE 93, 1 et seq.). Following the Bavarian school laws of the time, each classroom had to be fitted with a cruxifix, i.e. a cross with a representation of Jesus’ corpus. The Federal Constitutional Court held that while no one had a right to be spared the view of other people’s demonstration of faith, the principle of religious neutrality did not allow the state to affiliate itself with one particular religious denomination. Even if the majority of pupils in the school possessed the Christian faith, students were not obliged to tolerate such a symbol in the classroom, since the German provisions for compulsory education made a withdrawal from those religious symbols extremely difficult. Finally, the Court argued that the cross was such a decisive symbol of the Christian religion that it could not be regarded as a general cultural symbol.
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Another recent case of the Federal Constitutional Court concerned governmental warnings or declarations regarding religious cults (BVerfGE 105, 279 et seq.). The Court held that the principle of neutrality did not stop the government from voicing criticism regarding religious groups. However, the critique needs to be precise and based upon a factual explanation. Sweepingly branding a particular religious movement as ‘destructive’ or ‘pseudo-religious’ is inadmissible.
2. Freedom of religion Art. 4 GG guarantees the freedom of religion and religious exercise. It further stipulates that no one may be forced to do military service with a weapon against their conscience. Freedom of religion includes the right to negate the existence of God, and no one may be forced to undertake religious acts. This human right is in principle not subject to any limitation, however, it may need to be restricted in order to achieve a coordinated coexistence with the fundamental rights of other persons or other fundamental principles of the constitution. Let me give you some examples: A recent case before the Federal Constitutional Court concerned zabiha, i.e. the killing of vertebrates without anesthesia by religious Muslims (and would apply in the same line to the Jewish equivalent shechita). While the Federal Administrative Court had argued that the ban on such butching techniques did not interfere with religious freedom since neither Islam nor Judaism obliged the believers to eat meat in the first place (BVerwGE 99, 1 et seq.), the Federal Constitutional Court held that butchers of the particular faith could apply for a special approval, provided that the circumstances ensured approriate consideration for the animals’ needs (BVerfGE 104, 337 et seq). There is some debate whether this decision would need to be reversed after animal protection was proclaimed a state goal by Art. 20a GG, which was introduced in the year 2002. The Headscarf-case (BVerfGE 108, 282 et seq.) concerned a muslim woman who was refused employment as a primary school teacher due to her unwillingness to take off her headscarf in class. As in the Cruxific-case, the problem was that students of other beliefs would necessarily and inescapably have been confronted with the religious symbol during lessons, particularly so since most classes are taught be the same teacher in primary school. Despite the obvious parallels, there was also a significant difference: The debate in the Cruxifix-case centered around a state decree ordering crosses to be affixed to classrooms, i.e. around the government’s identification with the symbol of a particular religion. In the Headscarf-case, it was quite plain that the diplay of the religious symbol was a personal choice and that the government, respectively the school authorities, did not express a preference for Islam. The Constitutional Court held that the government possessed a prerogative in establishing a balance between the religious rights of teachers and students: In times of increasing religious plurality within a changing society, the government might either opt for a stricter concept of religious neutrality in order to avoid religious conflicts witin schools, or it might choose to allow obvious displays of faith in an attempt to foster tolerance and integration. In any case, the decision on how to establish the balance of interest was too important to be left to the singular school authorities, but had to be decreed by statutory law. In the aftermath of the decision,
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several German states have introduced specific legislation which bars teachers from wearing religious symbols in the class. Some of these statutes make distinctions between headscarves and Christian symbols, the underlying reason being that the former is declared a political symbol of fundamental Islam as well as a symbol of women’s oppression, whereas the latter is seen as a cultural symbol. It is questionable whether these distinctions would be upheld by the Federal Constitutional Court. Religious symbols worn by students are generally considered to be unproblematic. The discussion regarding students’ expression of their beliefs rather centers around their right to miss particular parts of school, i.e. the question whether Muslim girls are entitled to be excused from sports classes or class trips and whether parents may request that their children not be exposed to sex education in school. While the Federal Administrative Court has accepted that Muslim girls may be exempted from sports classes, the general trend in case law is to handle exemptions restrictively in view of the state’s responsibility for education, which is put forward in Art. 7 (1) GG.
3. Cooperation between Church and State As I’ve already noted above, Germany is not a strictly laicist state. The preamble of the Grundgesetz explicitly refers to God, albeit not one of a particular faith, and Art. 140 GG in conjunction with Art. 136 et seq. WRV provide for a cooperative relationship between church and state. The most striking indicator for the cooperation between church and state is the fact that the German constitution explicitly allows for a church tax, which is levied from church members. The historic origin of this tax dates back to the early 19th century, when many of the German states lost their territory to France as a result of the wars of the French Revolution and the military successes of Napoleon Bonaparte. The now stateless monarchs were compensated with territory which had formerly belonged to the churches, roughly 95.000 square kilometres of land (Reichsdeputationshauptschluss of 1803). On the other side of the coin, the princes suddenly had to provide for the salaries of clerics and the upkeep of churches. They tried to alleviate this part of the secularisation process by imposing fiscal duties upon church members. The Weimar Constitution of 1919 acknowledged these fiscal duties by granting the churches a right to raise taxes. Art. 137 WRV allows religious communities to apply for the status as ‘corporations under public law’ (Körperschaften des öffentlichen Rechts). Whilst this status does not entail any additional duties and responsibilites, it allows the churches to levy ‘church tax’ upon their members. The church tax is collected through the state-organized tax-collection system, comes as an addition to the income tax and currently amounts to 9 % in most German states (8 % in Bavaria and Baden-Wuerttemberg). The status of ‘corporations under public law’ is granted to religious groups irrespective of their particular beliefs, as long as they provide a guarantee of continuity and their present conducts shows that they do not pose a risk for the fundamental principles laid down by the Grundgesetz. A recent application by the Christian denomination Jehova’s Witnesses was successful, even though the group regards any secular political system, including
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the constitutional order of the Grundgesetz, as ‘part of the world of satan’ and its congregation does not, as a matter of principle, participate in elections. The German Federal Constitutional Court held that Art. 137 WRV did not presuppose a particular loyalty to the State beyond the requirement that the religious community’s actions are not directed against the constitutional order (BVerfGE 102, 370 et seq.). Apart from Art. 137 WRV, Art. 7 (3) GG accommodates religious groups with the constitutional guarantee of a subject ‘religion’ in public schools. Historically, this guarantee is tailored towards the two big German churches, the Evangelical Church and the Roman Catholic Church. Nonetheless, other convictions are to be considered as long as the religious group constitutes a reliable, permanent partner for the State which is able to articulate authoritative principles regarding their faith. Due to the short tradition and fragmentation of the Islamic belief in the religious communities within Germany, attempts to enforce Islamic religion as a subject in public schools have so far failed in German courts. However, several states have undertaken trial phases in which a subject of ‘neutral’ Islam was offered as an alternative to Islamic pupils.
Suggested reading: Hans-Jürgen Papier, Aktuelle Herausforderungen im Verhältnis zwischen Staat und Kirche unter besonderer Berücksichtigung der staatlichen Neutralitätspflicht, in: Pitschas / Uhle (eds.), Festschrift für Rupert Scholz zum 70. Geburtstag [2007], pp. 1123-1139.
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Freedom of Speech and Freedom of Religion: Three Types of Relationships
Guy Haarscher President of the Perelman Center for the Philosophy of Law Free University of Brussels (ULB) Belgium
Schematically speaking, there are two opposed ways of arguing against human rights and the values of liberal democracy. I shall call the first one the “frontal attack”: the “enemy” explicitly defends values that are radically at odds with liberal-democratic principles. For instance, the opponent defends an authoritarian conception of political power (fascism, Nazism, Soviet communism…), or a dogmatic conception of religious power (imposition of the law of God on earth, necessary “eradication” of the infidels, etc.). Such a rhetoric is very influential today, for instance – but not only – in the Islamic world. It is very preoccupying, as everybody knows. But this is not my present topic. I am interested here in the second, totally opposed, strategy: in order to be at least heard by the democratic community, the “enemy” uses the language of liberal democracy. By doing so, he or she very often succeeds in radically distorting the language of human rights. I shall call such a strategy: “the wolf in the sheep’s den”. The first strategy possesses at least a virtue: its clarity. The values and aims are stated in a rather straightforward way. For instance, liberal democracy is considered to be against religion, as it substitutes the law of God for the law of “We the People”, the divine law for a law emanating from the social contract. But such a frontal attack is not convincing at all in the liberal democratic community. So another approach is more and more used: here the opponent uses the language of liberal democracy, by subtly distorting the meaning of the concepts and values that are at the core of human rights and democracy. Such a distortion permeats the general discussion in the polis, so that at a certain point even democrats acting in good faith fall prey to such a sophistic manipulation. Of course, the strategy I call the “wolf in the sheep’s den” has the disadvantage (for us, democrats) of taking the interlocutors off-guard: as they think they are confronted with someone accepting liberal-democratic values, they do not see the danger. And so, as I said in the beginning, the democratic fortress has not to be stormed: the enemy is already inside, as a Trojan horse. In order to make myself understood, I shall begin my demonstration by reexamining a very tricky problem, that is, some specific limits to free speech related either to religion (blasphemy) or to “race” (racist speech). I want to analyze the rhetoric which is used today not only in the public debates but also by judges sitting in high courts (at least in Europe). In order to make myself understood, I would like first to analyze a sequence of events that took place in 2005 when the Danish newspaper Jyllans Posten published the now famous cartoons on the Prophet Muhammad. Let us, as far as our problem is concerned, summarize the sequence as follows: when the Danish journalists were threatened, some newspapers in other European countries decided to republish the cartoons, not necessarily because they thought that they
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were the result of a good and wise editorial policy, but out of solidarity with the threatened individuals, and in defense of free speech as a central value of liberal democracies. Now one can easily consider that these cartoons were blasphemous: of course, they could also be read in a political context, for instance if one thought they criticized a human, all to human, instrumentalization of religion. Whatever interpretation one decided to give to the cartoons (the meaning of a drawing is always more open than the meaning of a discursive expression), freedom of expression had to be protected. From the point of view of the (more or less violent) opponents of the journalists, the meaning of the caricatures was clear: it was an offense to the Prophet of Allah, that is, an insult to God, in other terms an outrageous blasphemy. One immediately sees the danger, for the advocates of the Jyllands Posten, of trying to show that the drawings, after all, were not blasphemous: it would have meant that if they were, the journalists would have been left without defense. "Another such victory and I am undone."1 So it would be safer for the future of freedom of expression to accept that the cartoons can reasonably be interpreted as being blasphemous or sacrilegious, and that this should be protected speech. At least the situation would be intellectually clear, although it would be physically dangerous to defend such a position. The anti-blasphemy statutes that still exist in some European countries are, as it were, the remnants of a time when religion was officially protected and sanctioned by the secular powers. The conflict was between the “dissident” individual and a theologico-political entity. Now in pluralist societies, religion (or a particular faith) should not be immune from criticism. The problem is not only formal. It is very important to begin with a clear characterization of the nature of the conflict that took place in Denmark, then – which is unavoidable in an era of global communication – throughout the world. A newspaper exercised its right to free speech and was accused of blasphemy. For the moment, the problem is not to answer the question: “Is blasphemy a legitimate limitation of freedom of expression or not?”, but to characterize the situation. Obviously, it is because Muhammad is a sacred figure in Islam that the cartoons were attacked, at least on two counts. First, they were a representation of the Prophet, which, according to a rather dominant tradition in Islam (although it is not the only one), is radically forbidden. Secondly, the content of the drawings was blasphemous in that, for instance, one of the caricatures portrayed the Prophet wearing a bomb on his head instead of a turban. Now everybody is entitled to give whatever meaning he wants to a drawing. A problem arises only when one considers that such an expression constitutes as such an abuse of the right and should be suppressed. Now we can limit ourselves to two different forms of suppression. The first one is legal censorship, that is, suppression (and possible punishment of the author) through the avenues opened by the rule of law. The second one is to be situated outside the law: one tries to suppress the expression or to sanction the author(s) by resorting to intimidation, threats and outright violence. In the present paper, I am only interested in the first form of suppression, that is, legal censorship. The question is thus the following: “Is it justifiable under the rule of law to censor an expression because a part of the population thinks it is blasphemous?” Let us, for the sake of argument, take the position of the advocates of
1 Supreme Court of the United States, Beauharnais v. Illinois, 343 U.S. 250 (1952), dissenting opinion of Justice H. Black.
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censorship. Their case is of course the easiest when they act in a country where an anti- blasphemy statute is in force: it suffices then to apply the law. But, rhetorically speaking, the situation is very different – and the case harder – when there is no blasphemy law on the books. An episode which took place in the wake of the publication of the Danish cartoons is well known: some European newspapers decided to republish the drawings out of solidarity with the threatened journalists. In sum, because there were attempts to suppress the cartoons in the second (illegal, violent) way, they wanted to show that, whatever they thought of the wisdom or the “prudence” of the editor-in-chief of the Jyllands Posten, they would defend freedom of expression against intimidation and fanaticism. But here comes the first “avenue”. The French newspaper Charlie Hebdo was one of the printed media that republished the cartoons. The advocates of a legal censorship filed suit, trying to get the suppression of the drawings by legal means. But here is the difficulty: France does not have an anti-blasphemy statute, so the case for censorship was much more difficult that it would have been, say, in Austria or in Britain. This is not to say that the opponents of Charlie Hebdo were not entitled to bring the case before a tribunal. The problem is that, in order to have their claims heard by the judges, they first had to translate them into the language of French law. In other words, if there was no statute supporting censorship for blasphemy, they had to find another legal basis. The strategy looks like this: one subtly transforms the conflict between a fundamental human right (freedom of expression) and the remnants of an official religion into a conflict between human rights. Instead, thus, of saying that the cartoons offend God, one says that they insult the religious feelings of a (more or less) defined community. The problem, then, is not that “God” is insulted (which is the original definition of blasphemy), but that certain individuals are (supposed to be) wounded in their religious feelings, which prevents them from exercising their right to freedom of religion. The translation works in the following way: the opposition between the individual and the order of God becomes a conflict between rights: between freedom of expression and freedom of religion. Now these are rights which are on the same level: in many jurisdictions, there is no hierarchy or priority rule (in the Rawlsian sense) allowing us to make one of them superior to the other. So, if they are of equal value, the only way of taking a decision is to “balance” them against each other. In other terms, as freedom of expression and freedom of religion have the same value, the judge will have to assess whether or not one of the rights has been exercised in an “exaggerated” way, preventing other persons from exercising the other right. There are many examples of such “systemic” conflicts, that is, conflicts arising inside de system of human rights, and not between a human right and some exterior Norm. For instance, freedom of expression must be balanced against the right of the suspect or the accused to a fair trial, so that the press must show some restraint; but on the other hand the press has to inform the public of cases that are important for the democratic life of the country. Freedom of expression must also be balanced against the right to privacy or the right to reputation (defamation). These are well-known examples of systemic conflicts between human rights. My point is that in the case of free speech and freedom of religion, the systemic conflict is artificially constructed, and, if one sees through it, particularly absurd. I would like to show that such a process of “translation” is characteristic of the way judges reason in certain European countries and at the European Court of Human Rights. Then I
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shall briefly contrast the European situation with the jurisprudence of the United States Supreme Court regarding blasphemy. According to me, the Court does not translate the problem into the language of the “rights of the others” (freedom of speech v. freedom of religion) but adopts a principled attitude about blasphemy or “sacrilegious” speech a such. Finally, I want to analyze a third model of reasoning about the possible conflicts between freedom of speech and freedom of religion. At the recently created UN Human Rights Council, an expression is very often used by representatives of some (often powerful) non-Western countries: “defamation of religion”. I would like to show that in this case, the process of translation becomes totally absurd, especially when it takes place in the framework of a conference on racism (the all too famous Durban II conference - “defamation of religion” was finally dropped from the final document). To summarize my argument, I would say that in the US, the translation process has not so far been accepted by the Supreme Court; at the global level (Human Rights Council) it is widely used and endangers the very fabric of the language human rights; finally, Europe has adopted a “middle-of the-road” position. We shall have to assess whether such a choice is a sign of tolerance and reasonableness, or creates a dangerous “slippery slope”.
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Religion and Constitution of Georgia
Ketevan Kalandadze Academic manager Caucasus University Caucasus School of Law Georgia
The term of Constitution is Latin word and means - establishment, ascertaining. This term was used as far back as ancient age in the legislation of the Rome Empire. In ancient time in the slavery and feudal community the word “constitution” expressed the orders by the emperors and the different rules set by them but it at that time did not bear the meaning of the main law of the government. The origination of the constitution is the result of the Bourgeois Revolution that originated new the societies and the governmental institutions. The first constitution was written in 1787 here in the United States of America and since the right this period many scientist-lawyers have attempted to assume its concept; Right as a result of such discussions and changes of the opinions during the time it was defined and finally formed as the notion of the constitution. It obtained the strength of the main law of a country by which the territorial settlement of a country, the bases of the rules of a society, the legislative state of the citizens and other such significant principles should be defined which would be a bases for a state for the performance of the existence and functioning.
The constitutional development in Georgia has quite interesting history. The first constitution was adopted during the Democratic Republic of Georgia on 21 February 1921 before this time the constitutional acts performed this function among which the act of Independency issued on 26 May 1918 is the most significant. By the indicated document the political form of Georgia, the domestic and foreign policy principles and so forth were defined for the first time. Though in the same year due to the occupation of Georgia by Soviet Russia, the adopted constitution was not remained in force. Despite this we can say that the constitution made in 1921 was the perfect and refined model of the main law of the government that was based on the experience of the world’s constitutions and at the same time foresaw the historical, cultural and other characteristics characterizing Georgian reality. After occupation of Georgia by the Soviet Union the Soviet Socialistic Republic of Georgia adopted 4 constitutions in different times, but to review that as the modern and democratic model is not wise because the soviet formation did not know such notions as the private property, the division of the government among deferent bodies of the management and so on.
As a result of the national movement that started in 80-90s of 20th century Georgia managed to get rid of 70 year reining of Soviet Russia and on 9 April 1991 the act of the restoration of Independence of Georgia was adopted. In 1992 the new parliament elected on 24 August 1995 adopted new constitution that is still I force with different additions and amendments.
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Matters of the religion and faith belong to the deepest fields of the soul of a human and it is connected inseparably to inviolability of a person’s merit and honor. The respect of the religion rights of a human by the government is necessary, ignoring the religion rights of a human and his discrimination on the bases of religion faith is the rejection of the main principles of a democratic state according to which the source of the government is people. This principle obliges the government to care for its citizens and not to infringe their rights. We meet the decrees about inadmissibility of discretization and pursuit on the ground of religion in the constitutions of about all countries including in the supreme law of Georgia. The 19 article of the constitution of Georgia states full freedom of faith and belief that on the bases of the inner faith gives opportunity to a person take decision independently about his religion adherence or reject it at all. At the same time the constitution considers it inadmissible to purse or discriminate a person in any manner due to his religious faith.
According to 9th article of the constitution of Georgia the state of Georgia demits the special role of Orthodox Church of Georgia in the history of Georgia and its independence from the state. The relationship between the state of Georgia and its Orthodox Church is defined under the constitutional agreement that should fully correspond to the internationally adopted principles and norms of the Law in the field of the rights and main freedom of a person.
It is true that the state gives the equal terms to all the religions but at the same time acknowledges the special role of Orthodox Church in the history of Georgia due to its great dedication to State system of Georgia, the culture, the traditions, the national originality and the spiritual development and declares church independent from the state or in other words the state does not intervene in activity of church that refers to the organizational formation of church, the service and so forth. Also to provide church independency declared by the constitution the state considers the possibilities of constitutional agreement between the state of church. The constitutional agreement should fully correspond to the Norms and principles of the International Law acknowledged worldwide.
The mentioned does not mean that the constitution belittles other religions and makes them be in the deferent legislative space Orthodox or for instance Mussulman or Jews. It simply attempts not to lose the great history and meaning of Orthodox religion. The equality of each religion to each other is necessary because the idea of the God is the central idea for each religion and due to the fact that the majority of the population of Georgia is the Orthodox the representatives of the minority should not be belittled.
Consequently to the above mentioned the freedom kept by the constitution is spread on any person and not only on only the citizens of Georgia. A person can to use the freedom of the faith and belief individually as well as collectively. Freedom of the faith and belief can be performed collectively by preaching of the religion and outlook of the faith, by teaching of the religion and outlook, the performances of rituals and so forth.
Though we can consider the fact as the discrimination of the religion when the children at schools are taught religion with books called “History and Culture of religion”, and if we
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consider the plot of those books it should be titled “History and Culture of Christianity”. In this case the rights of the children that are representatives of religious minority are infringed. It would be better the history and culture of different religions were depicted in that books, that will enable the underage children with not formed reasoning to make their independent choice in reference to the religion belongings.
In different countries there are different methods of the religion education and it oscillates from getting confessional education to total elimination of religion from the school policy. For instance religion education in the public schools is compulsory there is not considered teaching all the religions and after 14 the children make their own decisions. To the mentioned age the parents decide for the children about their religion education. The same happens in Austria. In the USA the program of the public schools not only teaches all the admitted religions but also the state cares for the equal status of the representatives of all the confessions.
Discrimination of freedom of faith, confession and honor is inadmissible it revelation of them does not harm the rights of others. Despite the fact that on the bases of this decree the state can limit the freedom of faith, confession and honor, it should justify each such case.
The state should compare the rights and interests that in precise conditions oppose to each other. On the bases of such comparison the state should ascertain the side the rights and interests of which deserve more defense in the precise case. You will agree that freedom of confession in the base of the Independent state. Religion is connected to a person’s identification his ego. If the freedom of faith is infringed in the country defense of other rights or democratic development of the country is impossible. Despite the fact that the freedom of faith is set under the constitution in Georgia and the state and religion are separated under the bases of “Concordat” the freedom of the faith as the fundamental right of a human is threatened by the discrimination of legislation about religion minority, also threatens religion extremism that is characteristic to the Georgians with different confession to each other.
Used material: 1. Characteristic of faith and confession (law acts, Legislative review) Tb. Kavshiri 21st century, 2003 2. Freedom of opinion, honor and religion, Tb. saia, 2003 3. Levan Izoria, Konstantine Korkelia, Konstantine Kublashvili, Giorgi Khubua Comments on the constitution of Georgia (Main rights and freedom of a Human) Tb. Publication Meridiani 2005 4. www.alpe.ge/files/publications/file_fh4q86z6e6gs1ez.pdf
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Please refer to Page 107 for Professor Mehmet K. Konar-Steenberg’s paper entitled “The Veil as a
Subject for Comparative Legal Analysis”
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Between Crucifixes and Veils: Secularism and Religion as Guarantors of Cultural Convergence
Susanna Mancini* University of Bologna Italy
The conflicts that arise in relation to the “the place” of religious symbols in the public sphere, do not only reflect most of the dilemmas that liberal democracies face in the attempt to reconcile constitutionalism and religion through adherence to secularism in the public place. They actually challenge the very legitimacy of the dominant conception of constitutionalism and its nexus to the principle of secularism.
Religious symbols in the public schools typically raise two sets of conflicts. The first set of conflicts arises over the extent to which the right to wear religious symbols and clothes can be limited in the name of other rights and principles of equal constitutional value. In principle, this type of conflict may arise both in relation to the denomination of the majority as well to those of religious minorities. The French Law of March 17, 2004, which prohibits “the wearing of symbols or clothing by which students conspicuously manifest a religious appearance” in all State schools, is neutrally worded and therefore applicable to all symbols, including Christian ones. In practice, however, controversies have arisen exclusively in relation to the right of pupils belonging to religious minorities to wear their symbols and have almost exclusively concerned Islamic schoolgirls.
The second type of conflict arises when a religious symbol, such as the crucifix, or the crèche, is used as a “public language” of identity by State authorities. In this case, unlike in the first type of conflict, the contested symbol represents the dominant religion and not that of minority groups.
Most academic works on religious symbols address either the first or the second set of conflict. Many works have focused on the hijab cases in different contexts (e.g., in France), while many others have addressed the polemic over the display of the crucifix in the public schools (e.g., in Germany, Italy, and Switzerland) or that of the Ten Commandments and the crèche (e.g., in the United States). I propose to jointly address the two different sets of conflicts, as they both have to do with the relationship between religion and constitutional identity as well as with the different understandings, uses and driving principles of secularism as a constitutive element of constitutionalism.
In the first place, in a pluralistic society, both for majorities as well as for minorities, religious symbols play a peculiar role in identity-related dynamics. Their role cannot be
* Professor of Public Comparative Law, The Law School of the University of Bologna, Italy. Adjunct Professor of International Law, SAIS Johns Hopkins University, Bologna Center.
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compared with that of official State symbols, such as the national flag, which do not represent any “official truth”, but rather, testify to the existence of a political community that shares a (limited) set of common political values. The consequences of globalization and large scale migration, and the aftermath of September 11, have dramatically increased the demand for social cohesion and for strong collective identities, which are better expressed by religious symbols, thanks to their capacity to evoke absolute, and therefore reassuring, truths. Religious symbols, however, can easily turn into aggressiveness catalyzers, because they express and generate a primitive intellectual and relational level of human development, the level of blind fixations and belongings. Religious symbols unite, but, at the same time, strengthen division and support the building of barriers between the self and the other. Majorities and minorities seek shelter in religious symbols, as a reflex of the increasing difficulty they experience in finding a common core of shared civic values.
Moreover, conflicts over majority and minority symbols reveal an increasing blurring of the line between secularism and religion. On the one hand, religions have become “deprivatized,” and seek a wider role in the public sphere as well as in the political arena. On the other hand, the neutral character of secularism and its ability to solve religious conflicts in pluralistic societies is increasingly contested.
Conflicts over religious symbols arise as a consequence of the de facto pluralistic character of European societies. However, a comparative analysis of the reactions of courts and legislators confronted with such conflicts shows a tendency to counter or minimize pluralism, rather than to seek a reasonable accomodation for the different religious components of the polity. In both conflicts over majority as well as over minority symbols, courts and legislators tend to secularize the meaning of religious symbols and interpret it according to the sensitiveness, the prejudices and the claims of the majority. On the one hand, the religious significance of majority (Christian) symbols is watered-down and interpreted in "cultural" terms, not as the symbols of a given religion, but rather as inditia of the historical and cultural dimensions of national identity. On the other hand, minority, and, particularly, Islamic symbols are interpreted as expressions of cultural and political values and practices which are ad odds with liberal and democratic ones. The wearing of traditional female Islamic clothing, for example, is. often prohibited or limited because it supposedly clashes with gender equality. The practical results of this attitude is that crucifixes may be displayed in the public schools because secularized Christianity represents a structural element of the western constitutional identity, while the wearing of Islamic symbols is either banned or restricted, because they represent values and practices which are cast as illiberal and undemocratic.
I have analyzed cases decided and laws adopted in various jurisdictions, with sharply different models for managing the relationship between the state and religion: Italy, Germany, France and the United Kingdom. I have also consider the case-law of the European Court of Human Rights, which is invested with the task of striking a balance between unity and diversity in 47 states with deeply divergent constitutional traditions. Despite the differences among all of these systems, all cases rely, more or less explicitly, on a dichotomous construction of the relationship between Christianity and Islam, according to which the first, to be sure in a
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secularized form, is projected as a central component of Western civilization, while the latter is cast as a threatening "other". Both the imposition of Christian symbols in the public schools as cultural mainstays, as well as the as the restrictions on the right to wear Islamic symbols in the name of secularism correspond to this logic. Secularized religion and secularism are used in order to exclude the other and protect the culturally homogeneous character of European societies that is perceived - and even explicitly described - as threatened by pluralism and globalization.
In some cases, secularism is watered down. In the Italian and Bavarian crucifix cases, the courts legitimize the mandatory display of the cross in public schools because its significance depends on the place where it is displayed. In a Church, it has a religious significance, but in other contexts, such as a school, it also embodies social and cultural values which are shared also by non-believers. This is also the case of the laws adopted in the most conservative German Länder, which prohibit teachers from wearing Islamic but not Christian symbols (including Nun’s habits), openly relying on the dichotomy between Islam and Christianity and assuming that, while the latter constitutes a structural element of democracy, the former is at odds with it. In other cases, it is simply assumed that there is something intrinsically illiberal in Islamic outfits, and that their display must therefore be restricted. For example, the ECtHR in the Dahab case explicitly states that the veil is “a powerful religious symbol” which cannot be reconciled with principles such as equal respect for all and equality between men and women. The House of Lords in the Begum case refers to the necessity to protect female pupils from the undue pressure by their families and communities, by forcing them not to wear clothes that are somehow “too obviously Islamic,” and it thus authorizes a school to choose which Islamic clothes are compatible with the school’s (democratic) mission and which are not.
The French case seems different at first sight, but upon closer scrutiny it falls within the same pattern. In France it is not secularized Christianity, but militant secularism that is used to incorporate the forcibly shared, democratic values. Consistent with the tendency to blurring the line between religion and secularism, French secularism assumes all of the characteristics of a majority denomination. The French State does not confine itself to the role of ensuring the peaceful co-existence of different religions and conceptions but it becomes a party in the conflicts between them. The State identifies itself with one (the secular, majoritarian) conception and forcibly extends it to all groups and individuals: the secular republic requires a secular attitude from its citizens. This ideological use of secularism seems to suggest the existence of a community of destiny, unified not by a common ethnic origin, but rather by the will of the founding fathers, which finds its natural expression in a secular State culture. Secularism, however, corresponds to a Christian outlook, being the product of the historical process of separation between European States and Christian churches. Even in its French militant version, therefore, it ends up preferring the (secularized) Christian majority. The law of 2004 which bans conspicuous religious symbols in all State schools is the perfect example of this preference: good Christians do not need to wear conspicuous symbols of their religion in the public sphere, whereas practicing Islamic women, orthodox Jews and Sikh do, as headscarves, kippas and turbans are by nature conspicous.
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In sum, both the imposition to learn “under the cross” and that to learn bareheaded indicate the existence of a homogeneous collective identity and of outsiders, who have the choice between accepting to share, even symbolically, the values of the majority, or to be excluded from the public sphere. Conflicts over religious symbols in the public sphere therefore question the model of citizenship which is offered to those belonging to cultural and religious minorities. This constitutes a major challenge for European states and for Europe as a whole. The tendency to the marginalization of religious minorities and to the hierarchization of cultures and religions which emerges from the managing of such conflicts is not a good sign. And this is certainly not compatible with the open, inclusive and participatory model of democracy that Europe pretends to pursue.
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Religious Conversion, Re-Conversion & Indian Constitution
Prof. Faizan Mustafa Vice-Chancellor National Law University, Orissa India
Repression of and discrimination against minorities is as old as recorded history itself. It seems we no more believe in what Supreme Court of India had said in the famous national anthem case that “Our tradition teaches tolerance, our philosophy preaches tolerance, our constitution practices tolerance. Let us not dilute it.” ‘Reverse proselytisation’ or ‘homecoming’ or‘re- conversion’ is fast emerging as the only safe bet for the persecuted Christian minority in the state of Orissa. They are embracing Hinduism in desperate bid to bury the communal hat chef and return home. As a matter of fact, poor Christians living under terror have no choice but to change faith. Re-conversion ceremonies took place last year at several places in the remote villages, of course away from the media galore. The ceremony normally involves eating basil leaves, drinking cow dung mixed water, and tonsuring of the head.
The term ‘conversion’ is as old as the religion itself. The history known to us connotes that it was used primarily in Judaism and Christianity. Change of religion is mainly a product of propagation and missionary activities. The great living missionzing religions are Christianity, Islam and Buddhism. They aim to bring a ‘social transformation and revitalization of purpose sparked by spiritual impulses. The metaphysical- moral vision induces a passion for transcendence that intellectually, morally and emotionally frees its adherents from local deities and cults, from familial, tribal, clan, caste or ethnic loyalties from fixed political, economic conditions and from traditional ‘paganisms’. They lay a new foundation and give a new discipline, one that liberates from evil and falsehood and binds a good and truth. Each conversion indicates a desire for change i.e. a change from the existing cruelties to recognition of individuality and self- respect.
Hinduism represents a special and exceedingly complex case, for while it is similar to non- missionizing traditions in many respects, and while it seems to have spread essentially by a process called Sanskritization, the gradual adoption of Vedic practices and Brahmanic authority by non- Aryan people does indicate that it too has had periods of vigorous missionary activity. But the broad consensus is that Hinduism is a closed religion. Gandhiji and Radhakrishnan did assert that Hinduism is not a proselytizing religion. As a matter of fact rejection of proselytism is an important and essential part of tolerance. Thus ISKON( Hare Krishna) is just an exception. But Shuddhi Movement is a militant re-conversion movement that actively seeks to win back to the Hindu fold Christians, Muslims and others. It is indeed actively proselytizing movement involving also the conversion of those who had never been Hindus.
Historically, most conversions in India, from the ranks of the economically poorest and socially most defenseless Hindus, to Islam and Christianity, took place under the influence of Muslim
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and Christian conquerors. This is the context in which the converts, converters and the conversions, were seen by the vast majority of Hindus, who had remained faithful to their religion despite defeat in battle. They saw the converts as people who had betrayed the nation by going over to the side of the conqueror, and they saw conversions as the conqueror’s device, oiled through coercion and lure, for subverting Hindu society by dividing it against higher Hindu castes, which has resisted what many Hindus saw as a religio-cultural invasion by foreign conquerors. Therefore, it is not a coincidence that the conversions were condemned most and re-conversion to Hinduism was mostly preached by organizations, which prided themselves on their nationalism.
Conversions, it has been argued, most virulently by the extreme right among other groups, are generally coercive, ‘involuntary’ and singularly ‘subversive’. However, ‘voluntary’ conversions have also not been taken to kindly and have brought many social tensions in their way. As the converts mostly belonged to the lowest castes and converted to escape the notorious oppression of the higher castes, the conversions further accentuated the demarcations between castes. Political affiliates of the higher caste Hindu parties, therefore, are the bitterest about original converts and most aggressive in trying to reconvert their descendants and bring them back into the folds of caste Hinduism. Thus, the threads of conversion lead to many fault lines in India’s polity and society. To the historical divides of castes, to the trauma of the historical conquests and their contemporary fallout, to the divide between the poor, rural, tribal people, and the grabbing of their land and other resources by their richer, urban, non- tribal neighbors and above all they lead to the justifiably jealous concern for the country’s unity and integrity.
Article 18 of Universal Declaration of Human Rights(UDHR) explicitly states that everyone has the right to freedom of thought; this includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching; practice, worship and observance. UDHR, though not a binding treaty yet its universal acceptance signifies its importance in the International Law. Indian Constituent Assembly while drafting its Constitution was naturally influenced by the broad principles of UDHR.
India is the world’s most complex and inherently pluralistic society harboring a variety of races, tribes, castes, communities, languages, customs and living styles. The words “profess, practice and propagate” of the Indian Constitution, therefore assume immense importance in Article 25 (1) of the Constitution which guarantees freedom of religion. To profess a religion means the right to declare freely and openly one’s faith. To practice means performance of acts in pursuance of religious beliefs. Rituals and observances, ceremonies and modes of worship considered by a religion to be an integral and essential part of it, are also secured. And finally, ‘propagation’ means to transmit or spread one’s religion by the exposition of its tenets. It is interesting to note that the visionary framers of Indian Constitution conferred the right to propagate not only on Indian citizens but also on foreigners as the words used in Article 25 are “all persons” and not “all citizens.” Thus, constitutionally speaking, we cannot complain against foreigners for indulging in the ‘propagation’ of Christianity because this is the right they have
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under our highly liberal Constitution. Where propagation ends and conversion begins is difficult to say. But the law as it stands today because of the apex court’s controversial decision is quite clear that ‘propagation’ does not include ‘conversion’. At the same time we need to remember that term ‘conversion’ was dropped from Article 25 because the visionary members of our highly enlightened Constituent Assembly in their wisdom thought that there was no need to specifically mention this word as term ‘propagation’ is already too wide. Is not “choice’ central to democracy and if yes then this choice surely includes right to choose one’s religion. However, in the scramble for conversions and re-conversions and the ensuing debates on immediate circumstances, one forgets to ask some basic questions.
Why do individuals/communities convert? Missionaries succeed in their task not because Christians are more philanthropic but because Hindus are discriminating of their co-religionists by following the corrosive and anachronistic tenets of the caste system. If the feudal landlords blocks well water to dalits, who should be blamed for conversions. As long as tribal people are not treated as equals, there will be a strong incentive for many to escape through the embracing of a faith that at least ideologically, does not perpetually condemn them as inferior. Dignity is a basic human right and if this is denied by one set of beliefs, then the ‘victim’ will seek it elsewhere. While recognizing that conversions are a complex issue, which also happen sometimes starkly involuntarily and sometimes less-apparently-involuntarily like taking leverage of a person’s economic situation or superstitions etc., it is safe to say that as long as caste-based discrimination continues, so will the motivation for conversion. It is high time to initiate social reforms on the lines of Joytiba Phule and Narayan Guru.
While extreme right openly asserts that the current violence is all about conversions, Christian organizations forcefully deny the allegation. It is indeed somewhat strange that despite the rule by Christians for nearly two centuries, Christian population in the country is less than 3% and is further declining. The reason probably lies in what St Paul said in his first epistle to the Corinthians, “For Christ has sent me not to baptize but to preach the Gospel”. Thus missionaries have the mandate to merely evangelize not proselytize.
A number of states, including Orissa, have already enacted the anti-conversion laws and now there is a demand to make the rules more stringent. But even though Orissa has Anti Conversion law for more than 40 years, one is tempted to ask how many cases of forced conversion due to coercion or inducement were filed in last four decades? What is the conviction rate?
We need to ask ourselves why laws banning bonded labor, rural indebtedness and abolishment of untouchability have not been implemented in full force in interior areas. No missionary can be blamed for these problems. Those with a vested interest in the poverty of the dalits and tribes use the Hindutva façade to continue perpetrating the cycle of poverty and any improvement in the lives of the people then becomes a threat to them. It is to be noted that Christian missionaries succeeded in areas where the government failed to provide good education and health facilities to the marginalized. It is necessary to remind ourselves about the India Mahatma Gandhi dreamt of. He said, “I do not expect the India of my dream to develop
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one religion, that is, to be wholly Hindu or wholly Christian or wholly Mussalman, but I want it to be wholly tolerant, with its religions working side by side.”
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The Republic Tradition and The “Hijab” Controversy
Ricardo Leite Pinto Lusíada University, Lisbon Law School Center for Legal , Economic and Environmental Studies ( Lusíada University) Portugal
The controversy around the “Hijab” (“foulard”), piece of clothing worn by the Islamic faith women, in many western countries, allows the perspective of how political traditions influence Law and legal solutions adopted by countries. The republican tradition is summoned every time the “Hijab” controversy is mentioned. However the same republican political tradition may lead to distinct political and legal solutions ( Besson & Martí, 2009: 6-7). While in France the Law of “ Laicité”( Law of March 15th 2004) prohibits the use of any ostentatious religious symbols in public schools, having the current President Nicolas Sarkozy fight for the extension of the scope of the referred law, in the United Stated of America there is no law that prohibits the use of the Islamic veil in public schools, having voices like President Barak Obama criticise the European laws on the subject.
Other European countries have given attention to the issue (including countries of Islamic majority such as Turkey, where the debate is intense). The interesting part of the debate is the discussion on the reasons that justify the different conclusions that arise from the same political tradition. The point relies on the relationships between the State and the Churches and freedom of religion . The Anglo-Saxonic republican tradition and the French republic tradition, that have a common basis, diverge when the issues refer to religious and cultural differences in the public scope.
The French republican tradition invoked for the prohibition of the “Hijab” in public schools develops around three traditional principals: “Equality, Freedom and Fraternity” and can be summed up in the following way:
a) The use of ostentatious religious symbols questions the neutrality of the public sphere that is, in itself, a guarantee of equality between citizens of different beliefs and religions, violating equality; b) The “Hijab” translates into a form of oppression of women, limiting freedom and autonomy of women that use it, offending liberty; c) The “Hijab” translates a special affirmation of cultural differentiation that questions national identity and mines the inter-ethnic solidarity, devaluing ‘fraternity’.
This orientation was supported in the Stasi Commission Report, in charge of studying the social, political and judicial implications of the “Hijab” controversy and served as the basis for the March 14th 2004 Law. It corresponds to the said official republican tradition (Laborde, 2008), born from the French revolution of 1789 and made official in the thirth republic through the Law of Separation between the State and the Church in 1905. Based on the idea of laicité as a
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doctrine of separation between the State and the Church, it points to the adoption of certain behaviours by the State and citizens in order to preserve the neutrality of the public sphere, the equality among citizens and the universal civic educational in schools.
Despite the fact that this tradition has contact points with the liberal idea of tolerance, it is still distinctively republican in its basis and reasoning.
The idea of tolerance does not fit in the republican reasoning, but is based on the liberal principals of Locke and his idea of natural and inalienable rights of Man. On the contrary, although apparently facing the same end, the republican tradition takes from the idea of ‘civil religion’, introduced by Rousseau, to designate the civil profession of faith modelled by the ancient civil religions (Zurbuchen, 2002: 47). This orientation goes back to Maquiavel that saw religion as essential to keep and reinforce the patriotic love, fight private passions and this way guarantee the stability of the republic. His inspiration, born from the study of History and present on his comments to “The Last Decade of Tito Livio”, invokes ancient Rome in its republican period, where religion, based on his interpretation, helped promote the civic grandness and the virtue of citizens ( Skinner, 1981: 61-64) . Religion (whichever one) is then valued with the purpose of reinforcing “virtue”. Maquiavel defends the ancient Roman religion to be more effective for this purpose than Christianity of his time. From “civil religion” as a factor of unity and cohesion of the republic and growth factor of civic virtue, easily arises the need to impose, through the state, certain behaviours and prohibit others in order to guarantee the “republicanisation” of faith and beliefs.
Different from this is the Anglo-saxonic understanding of the separation of the Church from the State doctrine, and the construction of religious freedom itself. In the North American constitutional tradition, for example, the freedom of conscience is seen with prominence when compared with religious freedom, being the latter under the first. In such a way that only under particularly serious reasons is the imposing of limits or prohibitions regarding the religious freedom justified. Pulling away from the idea of “civil religion” defended by the French republican tradition, some of the North American founding fathers such as Thomas Paine, James Madison or Thomas Jefferson focus on the context of fundamental rights the sacred sphere of religious freedom that is out and should stay apart of any public-state intervention. The religious pluralism, which consists in the defence of freedom of conscience, in the total freedom of cult and belief in the centre of society and in the abstention of public powers (either through prohibitions or supports), constitute the distinctive mark of the North American tradition. Under this understanding is a fear for factions and religious cults, potentially destabilizing of the growing republic. Only absolute religious freedom and diversity can guarantee the common good. And this is also a distinctive republican tradition; eventually a modern republicanism as identified by some authors (Kalyvas & Katznelson, 2008: 105-114) but also apart from the French model.
The North American Constitution (art. VI, Amendment I and Amendment XIV) consecrates the principals of freedom of religion (free exercise clause) and of separation of Church and State (establishment clause). On the other hand, the Supreme Court interprets the constitutional
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norms and principals by widening the scope of freedom of religion and supporting the doctrine of the” wall of separation “(Thomas Jefferson) between State and Church.
The fact that the same political tradition, as the republican tradition, gives place to different judicial solutions (legally or jurisprudential) for similar problems (although in different countries) should make us question the basis, the relevance and the limits of the referred tradition.
Besson, Samantha & Martí, José Luis (2009). Legal Republicanism. National and International Perspectives. Oxford University Press
Kalyvas & Katznelson ( 2008) Liberal Beginnings, Making a Republic for the Moderns, Cambridge University Press
Laborde, Cécile (2008) . Critical Republicanism, The Hijab Controversy and Political Philosophy , Oxford University Press
Skinner, Quentin ( 1981). Machiavelli, Oxford University Press
Zurbuchen, Simone ( 2002) . “Republicanism and Toleration” in Republicanism, A Shared European Heritage. Vol .II. pp.47-71, Cambridge University Press
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Legislative Prayers and Judicial Sins: How Not to Think About Constitutional Foundings
Jamin Raskin1 American University Washington College of Law United States
Marsh v. Chambers: Using History to Evade Doctrine
In 1983, the U.S. Supreme Court in Marsh v. Chambers upheld the Nebraska legislature’s practice of opening its daily legislative sessions with religious prayers performed by a chaplain who had been put on the state payroll for this purpose. In arriving at its decision, the Supreme Court did not interpret and apply general Establishment Clause principles but simply found that the practice is legitimized by the history of religious practices inside our legislative bodies, especially the first Congress of the United States. Writing for the majority, Chief Justice Burger emphasized that the first Congress paid chaplains to provide invocations even as the body was preparing to adopt the First Amendment with its Establishment Clause. He wrote:
On Sept. 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights. Clearly the men who wrote the First Amendment Religion Clause did not view legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.2
Framers-as-Legislators, Framers-as-Framers
But this mode of constitutional reasoning is defective and dangerous. It confuses what the first Members of Congress appear to us to have thought about hypothetical potential constitutional problems as surmised from their own short-term legislative actions with what they actually did as sovereign law-givers participating in the writing of the Constitution. The distinction between Framers-as-legislators and Framers-as-Framers is crucial for constitutional democracies to maintain if the dynamics of church-state separation--and human rights generally--are to prevail in the long haul over the perfectly predictable political habits of accommodating powerful social interests in the course of legislative action.
Every constitutional democracy has a founding constitutional generation. Every founding constitutional generation is also engaged in the normal push-and-pull of legislative politics at the same time that it is developing enduring constitutional language and principles to define the character and boundaries of governmental action in the future.
1 Professor of Law, American University Washington College of Law, Maryland State Senator. 2 463 U.S. 783 , 788 (1983).
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These two roles must be kept analytically distinct when courts come to analyze the meaning of constitutional language. The dangers of conflating them are plain when we examine the multiple fallacies in Chief Justice Burger’s analysis.
First, he reasons that, because Congress reached consensus on First Amendment language only “three days after the appointment of paid chaplains,” then “Clearly the men who wrote the First Amendment Religion Clause did not view legislative chaplains and opening prayers as a violation of that Amendment. . .”
This is a non-sequitur. When they voted as legislators on the appointment of paid chaplains, the later authors of the Establishment Clause could not have had a position one way or the other on the question because the Establishment Clause did not exist when they considered the issue. But even had they voted on this legislative issue after voting on the First Amendment, their treatment of it would be essentially irrelevant for interpreting the First Amendment because the meaning of constitutional commands cannot be altered by later legislative enactments that conflict with them. On the contrary, the whole point of judicial review as expressed in Marbury v. Madison is that the Constitution controls hostile legislative enactments rather than vice versa.
Votes by the first Congress on issues that may end up testing constitutional boundaries cannot illuminate the underlying meaning of the contested constitutional language. After all, a legislator voting on normal legislation is engaged in a wholly different process than he or she is when adopting constitutional language. A legislator who will commit carefully and passionately to abstract and general constitutional principles as a Framer may depart from them as a representative in the thick of considering a political problem whose constitutional meanings may be murky and whose ultimate validity can be safely kicked over to the judicial branch.
This is a point that Justice William Brennan made powerfully in dissent in Marsh:
Legislators, influenced by the passions and exigencies of the moment, the pressure of constituents and colleagues, and the press of business, do not always pass sober constitutional judgment on every piece of legislation they enact, and this must be assumed to be as true of the Members of the First Congress as any other.3
In other words, a Member of the first Congress who is developing a constitutional framework for continuing generations of the whole nation has a completely different mindset (and is engaged in a completely different project) than he or she has (and is engaged in) when simply representing his or her district constituents in a legislative conflict. Thus, it is wholly plausible that a gentleman who, as a Framer, voted for the Establishment Clause could, as a district representative, vote for daily legislative prayers by state-compensated chaplains, even if the practice is unconstitutional and he believes it to be so. Indeed, the fact that he understands it
3 Id. at 19.
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to be likely unconstitutional may be the very reason that he feels safe in voting for a popular but otherwise objectionable practice; he may say to himself, “this is a close constitutional call but if it is indeed unconstitutional, the courts will strike it down and I need not do so.”
But we actually need not deal with this as a hypothetical matter. Justice Brennan points out in dissent in Marsh that James Madison, as a Congressman, voted for the bill authorizing compensation for the first congressional chaplains but “later expressed the view that the practice was unconstitutional.”4 In his “Detached Memoranda,” Madison wrote very much in the voice of a Framer concerned for the separation of church and state and preservation of constitutional liberty:
The Constitution of the U.S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does this not involve the principle of a national establishment. . .5
The point is not that Madison’s dispassionate views expressed after the fact control the meaning of the First Amendment (surely they do not), but rather that the apparent implications of his political position on legislative prayers in the heat of battle certainly cannot control the meaning of the First Amendment either.
Confusing Subsequent Practice with Original Beliefs and Original Beliefs with Constitutional Meaning
The other non-sequitur in the majority’s position pervades this odd sentence: “Clearly the men who wrote the First Amendment Religion Clause did not view legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.”6 Of course, the unbroken practice of Congress after it met in its first session sheds no light on how the Framers themselves viewed the constitutionality of the practice, much less what really matters: the actual constitutionality of the practice itself.
Here we reach the true danger of the majority’s mode of reasoning. It will often be the case that people acting as constitutional framers will be willing and brave enough to inscribe categorical principles into their constitutions that end up destabilizing illiberal or repressive social arrangements like church establishments or racial segregation, to choose two prominent examples. But the very same people who act as liberal constitutional patriots may be unwilling to summon up the will as ordinary legislators to break specifically from such an illiberal or
4 Id. 5 Madison’s ”Detached Memoranda,” William and Mary Quarterly, 558. 6 463 U.S. 783 , 788 (1983).
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repressive practice. The ultimate meaning of constitutional principles may require too much courage to translate immediately into a specific statute.
If we take the case of racial segregation, this again seems perfectly obvious. When Congress voted to add the Fourteenth Amendment and its Equal Protection Clause to the Constitution, Congressional policy required the galleries in both the House and Senate to be racially segregated. And, as Justice Brennan observed in dissent, Congress reaffirmed its racial segregation of the public schools in the District of Columbia just one week after it voted for the Fourteenth Amendment. Thus, the logic of the majority’s position in Marsh would dictate that these explicit legislative positions in apparent support of segregation control interpretation of the meaning of the Fourteenth Amendment. If so, we never would have had Brown v. Board of Education and the Supreme Court toppling our segregation laws.
Given the political difficulty of confronting powerful social forces like churches and institutional racism, the Marsh reasoning is a way to freeze constitutional meaning at the point of ordinary legislative equilibrium when relevant constitutional language was adopted. But this undermines the promise of constitutional politics, which is to lift up social aspiration and destabilize illiberal and repressive arrangements.
A Real Constitutional Analysis of Legislative Prayer
If we subject the practice of legislative prayer not to an historical treatment but a true constitutional analysis, it clearly violates the Establishment Clause. The leading test in the U.S. is found in Lemon v. Kurzman,7 which held that laws must have a primarily secular purpose, a primarily secular effect and not excessively entangle church and state. Obviously, conducting organized prayers in legislative session has an overridingly religious purpose, an overwhelmingly religious effect and the certainty of deeply entangling church and state-- beginning with the hotly contested issue of which religious leaders are invited to be chaplain or guest speaker and what rules are to govern the content of their prayers.
Indeed, the unconstitutional character of legislative prayer is a conclusion clearly compelled by the Supreme Court’s invalidation in Engel v. Vitale8 of organized prayer in public school classrooms more than 45 years ago. As the Court put it there, it is “no part of the business of government” to originate and administer religious prayer. This is a conclusion that the Ontario Court of Appeal also reached on September 24, 2008 when it declared unconstitutional the practice of opening local council meetings with the Lord’s Prayer.
The Paradoxes and Ambiguities of Current Law
The U.S. Supreme Court’s tolerance of legislative prayer has opened up a Pandora’s box of questions that do not admit of clear answers given the unprincipled starting point of the
7 403 U.S. 602 (1971). 8 370 U.S. 421 (1962).
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Marsh decision. Can the Members of the Town Council of Great Falls, South Carolina invoke the name not just of God but of Jesus Christ in the prayer invocation that opens their meetings? The Fourth Circuit Court of Appeals said that this sectarian reference “crossed the line.”9 Does the Chesterfield County Board of Supervisors have the power to exclude a witch leader, who practices Wicca and belongs to the Broom Riders Association, from a list of religious ministers who volunteer to pray at open its meetings or must it be open to all representatives of different faiths? The Fourth Circuit Court of Appeals said that Chesterfield can exclude the witch.10 And so on.
From the standpoint of a legislator who serves in a body that conducts legislative prayers every legislative day, the practice reveals all of the vices that led our constitutional Framers to adopt the Establishment Clause. It allows governmental actors to dress themselves up in religious garb when making public decision, often lending a kind of moral halo to controversial and arguably immoral policies. Conversely, it creates a thick aura of official sponsorship and endorsement to churches, religious dogma and references to the divine. It contributes to a symbolic fusion of church and state in the eyes of the public. It immerses legislators in conflict and controversy over sectarian issues, such as “who shall be the official chaplain?” or “should we allow Hindus to lead us in prayer?” or “will we allow direct references to Jesus Christ?” or “who gets to lead the prayer when we discuss capital punishment or abortion?” It compromises the ability of legislators to resist the political demands and positions of favored religious actors.
At the same time, I have found that legislative prayer does sometimes set a moral tone to the legislative context that is usually missing in the normal push-and-pull of political debate. It can sometimes have a cathartic, uplifting or humorous effect on discussion. Yet, these benefits could presumably be achieved by having different members or their guests launch the session with “thoughts for the day,” which could include meditations on Thomas Jefferson, Tom Paine, Shakespeare and other secular figures as well as any religious figure, tradition or story. At that point the little bully pulpit of the morning invocation would become a micro-public forum in which the speaker could speak of whatever he or she wanted, whether public or private, sacred or profane. This change would parallel the move in public schools from inescapably sectarian religious prayers to non-sectarian “moments of silence” in which everyone can think his or her own thoughts.
* * * * * * *
9 Wynne v. Town of Great Falls, 376 F.3d 292 , 298 (2004). 10 Simpson v. Chesterfield County Board of Supervisors, 404 F.3d 276 (2005).
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Marketing Creation: The Law and Human Origins*
Frank S. Ravitch Professor of Law Michigan State University College of Law United States
Every day in public schools, universities, houses of worship and coffee shops a battle rages over where humanity came from, or more specifically how humans came to be human. Much of the debate focuses on whether a supposedly new concept of human origins—intelligent design—should be taught in public schools, and whether that concept has any merit. Yet few people know much if anything about this “new” concept, how it came to the fore, and what it means for science, faith and constitutional law.
Intelligent design (ID) is, in part, a response to the constitutional battles lost by creationists and “creation scientists.” ID is primarily aimed at gaining academic and legal recognition for a theistic view of nature so that it may be taught in the public schools and accepted in public discourse. ID advocates have learned many lessons from earlier defeats under the First Amendment to the United States Constitution. This is why they rarely acknowledge that the “intelligent designer” could be G-d or that their approach is heavily derived from the natural theology of the eighteenth and early nineteenth centuries. Natural theology, at least in that era, was connected to Christian apologetics, but the general concept goes back at least as far as Plato’s Timeaus.
Of course, many people of faith believe that G-d must have had some role in the complexity we see in the universe. Unlike ID proponents, however, many of these people believe in what can loosely be called “theistic evolution”—the notion that the scientific proof for evolution is so overwhelming it would be ludicrous to ignore it, but this in no way precludes a belief that G-d created life. Evolution might simply be the mechanism that G-d used. To theistic evolutionists faith is faith and not science.
The existence of theistic evolution, and support for it from prominent biologists such as Kenneth Miller, is important. One of the ID movement’s major arguments is that teaching evolution promotes scientific materialism and methodological naturalism. They use this, along with the so called “gaps” in evolutionary theory, to argue that ID is a viable alternative to evolution that should be given equal access in educational settings. The argument goes something like this: “Since teaching evolution promotes a materialistic and naturalistic position on the origins of complex life forms, and because there are gaps in that theory, ID should be
* This paper is a brief description of some of the issues addressed in FRANK S. RAVITCH, MARKETING CREATION: THE LAW AND INTELLIGENT DESIGN (Cambridge Univ. Press, expected 2010).
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taught as an alternative because it helps fill the gaps and offers an alternative to the prevailing materialistic approach. Failure to allow ID to be taught and included in scientific discourse discriminates in favor of naturalistic views on ultimate questions and against religiously or supernaturally inspired views.” Yet, theistic evolution demonstrates the flaws in this reasoning. As Kenneth Miller has pointed out (along with numerous religious leaders) there is no inherent tension between faith and evolution. Teaching evolution may be inconsistent with some faiths, but so is reading Lord of the Flies in literature classes. From a constitutional perspective there is a big difference between taking a position on ultimate questions in public schools and teaching material that is inconsistent with some faiths, which can happen in many secular courses.
Intelligent design proponents also make a “scientific” argument for design. They use concepts such as irreducible complexity and complexity by design in an attempt to demonstrate that design exists and therefore there is a designer. Thus, they seek to explain the existence of the designer through what they argue is science, an argument that is at the core of the controversy. Thus, ID proponents enter what I have called the “proof game.”** The proof game is at the center of the scientific and philosophical debates over ID. More importantly, it is also at the center of the legal and educational debates over ID that may ultimately determine the outcome of the scientific and philosophical debates.
The key is that in order to justify including intelligent design in science the ID movement needs to rely on scientific relativism and redefine science in a manner that has serious implications. ID proponents would need to combine relativist arguments from philosophy of science with free speech and equal access concepts from constitutional law. This would allow them to argue that exclusion from government sponsored scientific fora, including classrooms, is a form of viewpoint discrimination that violates the Free Speech Clause of the First Amendment to the United States Constitution. Yet, both constitutional law and scientific philosophy work against such arguments.
Many ID proponents argue that ID is simply a new or alternative paradigm for science, and as such, should be a valid topic of scientific debate. They base these arguments in part on the famous work of scientific historian Thomas Kuhn. Rather than attack Kuhn’s philosophy as some ID opponents have, it is illuminating to carefully explore Kuhn’s work. It turns out that his theories actually work against the acceptance of ID by mainstream science even if ID represents an alternative scientific paradigm. The epistemological possibility of multiple scientific paradigms, which Kuhn and scientific relativists address, says nothing about how and why a given paradigm would come to actually be accepted by mainstream science.
ID need not be part of legitimate scientific debate any more than other supernatural
** See Frank S. Ravitch, Playing the Proof Game, The Law and Intelligent Design, 113 PENN STATE L. REV. 841 (2009).
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theories such as astrology. This is important, because twisted versions of the legal concepts of equal access and viewpoint neutrality could potentially require all valid scientific approaches to be included in scientific fora that are promoted, funded, or sponsored by the government. From a constitutional perspective these arguments seem odd, but at least as to funding fora the Supreme Court’s move toward formal neutrality in recent years, and the suggestion in some cases, that government funding open to a variety of private entities might create a limited public forum, give some potential support for such arguments; albeit weak support. Public school classrooms are not public fora for speech, but some ID proponents have made arguments suggesting otherwise.
There is yet another facet to the ID debate. It involves claims of persecution and discrimination against ID advocates. In a recent movie called, Expelled: No Intelligence Allowed (2008), Ben Stein suggests that intelligent design advocates are being persecuted in the educational and scientific arenas and that this conflicts with free speech and intellectual fairness. Similar arguments have been made by a number of ID proponents. Yet, there are standards and law that relate to what can and can not be done in academic contexts, and as with most things, the story of these “expulsions” told by Stein and others leaves out many salient and important facts. In other words, few if any of these situations involve constitutional violations or violations of employment law.
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Constitutionalism and Islamic Legal Theory: Preliminary Questions Shannon Roesler Oklahoma City University School of Law United States
This moment of suspense, this épokhè, this founding or revolutionary moment of law is, in law, an instance of non‐law. But it is also the whole history of law. This moment always takes place and never takes place in a presence. It is the moment in which the foundation of law remains suspended in the void or over the abyss, suspended by a pure performative act that would not have to answer to or before anyone.1 ‐‐Jacques Derrida When we speak of law, and particularly constitutional law, we often find ourselves searching for origins, for elusive foundational moments of authorship and authorization. The search for Derrida’s “mystical foundation of authority”—the “founding moment of law”—can leave us with unsatisfactory answers. Not surprisingly then, a form of this question, or tension, has long fascinated legal and political theorists interested in explaining the contradictions presented by constitutionalism and democracy. In particular, democratic political theory acknowledges the tensions created by the “containment of popular decision‐making” imposed by constitutional laws, which place at least some “laws of lawmaking” beyond the reach of democratic politics.2 Even if we understand constitutional laws to be a result of a particular majority’s political will at one moment in time, we struggle to understand them as expressions of the majority’s (i.e., the People’s) will today. Thus, in a constitutional democracy, although the constitution claims to be the foundation of democracy, it also appears to violate this legitimating principle,3 a tension that inspires different answers to the question: what is the foundation of constitutional authority in a democratic society?
Attempts to reconcile Islamic law with constitutional democracy must also answer this question. Although the compatibility of Islamic law with constitutional democracy has preoccupied both the scholarly and the popular imagination, attempts to reconcile apparent tensions frequently end up mining Islamic legal history for principles, such as justice and equality, that resonate with theories of liberal constitutional democracy, rather than seriously examining the bases for legal and political authority in Islamic thought. While principles, such as justice and equality, abound in Islamic law and history and may be important sources for substantive laws, they are not necessarily the foundations of constitutional authority. If we
Shannon Roesler, Assistant Professor of Law, Oklahoma City University School of Law 1 Jacques Derrida, Force of Law: The Mystical Foundation of Authority, 11 CARDOZO L. REV. 921, 991—93 (1989‐90) (translated by Mary Quaintance). 2 FRANK I. MICHELMAN, BRENNAN AND DEMOCRACY 13 (1999). 3 See Jed Rubenfeld, Legitimacy and Interpretation, in CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS 195 (Larry Alexander ed., 1998).
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wish to explore the question of Islamic law’s compatibility with constitutional democracy, we must first ask how Islamic legal thought conceptualizes political and legal authority. This is, of course, an ambitious project, which I cannot undertake in the space of a few pages.4 Rather than exploring Islamic sources of legal and political authority in any detail, I explain why divine authority (i.e., God’s will) is not a possible source. In other words, I address a preliminary matter, an idea that may strike some as counterintuitive: the absence in Islamic law of an ultimate, or basic, norm conferring legal authority. As described above, liberal constitutional thought struggles to identify the legitimating foundation of constitutional authority, the “founding moment,” or in positivist terms, the basic norm, that validates all law. But we might assume that a legal theory based on religion would not suffer from this tension. The foundation of law would, it seem, be divine authority—what God commands. But as I explain below, legal authority in Islamic theory does not simply follow from an ultimate norm of divine authority.5
In Search of a Basic Norm: The Indeterminacy of Islamic Law The enterprise of identifying the governing legal authority within Islamic law may appear to be an essentially positivist project of locating the basic norm6 or ultimate rule of recognition7 within the historical practices of Islamic law.8 That is, to locate the source of legal authority in Islamic legal theory, we might assume that we need only investigate historical Islamic legal systems to discover the existence of an ultimate norm as a social fact. As H.L.A. Hart explains, the ultimate rule of recognition is the foundation of a legal system, the underlying rule from which all other rules issue and derive their legitimacy.9 Because “its existence is a matter of fact,” generally accepted by society and used by legal authorities, its validity is not at issue. Although we may question its “value,” we cannot question its validity because it is, in fact, the
4 For more on the topic of Islamic political and legal authority, particularly in relation to the modern state and democracy, see: Mohammad Fadel, The True, the Good and the Reasonable: The Theological and Ethical Roots of Public Reason in Islamic Law, 21 CAN. J.L. & JURIS. 5 (2008); Asifa Quraishi, Who Says Shari’a Demands the Stoning of Women? A Description of Islamic Law and Constitutionalism, 1 BERK. J. MIDDLE E. & ISLAMIC L. 163 (2008); Khaled Abou El Fadl, Islam and the Challenge of Democracy, in ISLAM AND THE CHALLENGE OF DEMOCRACY 3‐46 (2004); and Wael Hallaq, Juristic Authority v. State Power: The Legal Crises of Modern Islam, 19 J.L. & RELIGION 243 (2003‐2004). 5 The discussion that follows is based on the majority branch of Islam, the Sunni tradition, rather than the Shia. 6 HANS KELSEN, PURE THEORY OF LAW (Max Knight ed., 1967). 7 H.L.A. HART, THE CONCEPT OF LAW (1961). 8 My analysis is essentially a positivist inquiry into what—as a social and historical fact—may be the basic, or ultimate, norm of legal authority in Islamic law. This is consistent with a positivist approach to laws as “social phenomena.” Id. at 17. The positivist analysis of a society’s legal system takes the form of a historical sociological inquiry, see, e.g., id. at 89‐96, by which we seek to identify various kinds of rules through empirical observation. See Joseph Raz, On the Authority and Interpretation of Constitutions: Some Preliminaries, in CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS, supra note 3, at 161 (noting that Hart’s rule of recognition does not reach questions of legitimacy because it is only a social fact). Hence, positivism does not offer a general theory of what law should be or which legal structures (e.g., parliamentary versus constitutional democracy) should prevail. At most, we could say Hart’s positivism predicts the necessity of secondary rules that remedy defects (of uncertainty, rigidity, and inefficiency) in the primary rules of less advanced societies. See HART, supra note 7, at 89‐91. But this belief in a particular trajectory, or evolution, of a legal system does not inform theoretical efforts to design a new legal order for the future. In other words, we could not productively take a positivist approach to constructing an Islamic legal theory of constitutional government if it does not already exist in social practice. 9 HART, supra note 7, at 75, 97‐120.
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practice of a particular society to use the rule to assess the validity of all other rules.10 For example, we can assess the validity of a particular law by referring to another rule conferring the legal authority and procedure for the law, but when we reach the final rule conferring legal authority (Hart’s example is “what the Queen in Parliament enacts is law”), “we are brought to a stop in inquiries concerning validity; for we have reached a rule which . . . provides criteria for the assessment of the validity of other rules; but it is also unlike them in that there is no rule providing criteria for the assessment of its own legal validity.”11 In other words, we have found Derrida’s mystical foundation of authority.
The historical development of Islamic law may, however, frustrate the identification of an ultimate rule of recognition. The large body of substantive Islamic legal doctrine, called fiqh, originated outside the sphere of government and politics in the private realm of individual scholars or jurists.12 When jurists began to derive legal rules and methodologies from the shari’a (the divine law of God), the ruling entity (the caliphate) was already established and governing according to its own public laws and regulations. During these early years, under the rule of the Umayyad and Abbasid caliphates, individual scholars began establishing the possible sources, tools, and substantive rules of Islamic law. But this scholarly tradition of fiqh was not standardized or even easily accessible; one scholar’s diligent effort (ijtihad) to understand the divine law was as valid as another’s, lending equal validity to opposing views and promoting a situation of legal pluralism. In Islamic jurisprudence, every individual conducting a diligent independent legal analysis (ijtihad) using the shari’a sources—namely the Qur’an, the ahadith (prophetic traditions), ijma (juristic consensus), and qiyas (analogical reasoning)—will be rewarded in the hereafter. A well‐known tradition reports that the Prophet said that God promises two bounties for a correct ijtihad and one for an incorrect ijtihad in the afterlife.13
This understanding of humans’ inability to discern the divine truth pervades Islamic thought and culture today. As one Islamic scholar explains, people recognize the indeterminacy of God’s will: “Growing up in an Islamic Sunni religious culture, one is frequently reminded by one’s teachers that there is no church in Islam, and that no person, or set of persons, embodies God’s Divine authority. . . . Muslims strive to discover the Divine Will but no one has the authority to lay an exclusive claim to it.”14 The closest we can therefore come to an ultimate rule of recognition is a good‐faith effort to discern God’s will;15 even the interpretive use of the legal sources noted above is highly contested, making them imprecise candidates for the ultimate rule of recognition’s criteria by which all other legal rules are validated. Nor can we say, as Hans Kelsen suggests, that the basic norm of Islamic law is that “one ought to behave as God and the authorities instituted by Him command.”16 What would this mean in a system that authorizes legal interpretations that may (according to the system) fail to reflect what God
10 Id. at 104‐07. 11 Id. at 104. 12 See BERNARD WEISS, THE SPIRIT OF ISLAMIC LAW (1998). 13 See KHALED ABOU EL FADL, SPEAKING IN GOD’S NAME: ISLAMIC LAW, AUTHORITY AND WOMEN 9 (2001). 14 Id. 15 Id. at 48, 51. 16 KELSEN, supra note 6, at 115.
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actually commands? Furthermore, in a system lacking a recognized hierarchy of legal authority, individuals could hardly be expected to identify specific authorities instituted by God.17
From a positivist perspective, this indeterminacy in Islamic law distinguishes it from both positive and moral law. According to positivists, the legal validity of positive laws has no basis in morality because the basic norm rests on a social fact or, for Kelsen, on a “certain event as the initial event in the creation of the various legal norms.”18 For example, Kelsen argues that “[t]he validity of a legal norm cannot be questioned on the ground that its contents are incompatible with some moral or political value.”19 He contrasts the basic norm of positive law with the seemingly “self‐evident basic norm” of natural law, a norm “which is considered to be the expression of the ‘will of nature’ or of ‘pure reason.’”20 But Islamic law does not derive from either a certain event or a moral value. It is the indeterminacy of a basic norm in Islamic law that distinguishes it from natural law, as well as positive law. We cannot deduce Islamic rules from a certain fact or event; nor can we base them on a moral value, such as “right reason” or justice, because God’s will remains open to debate, complicating juristic efforts to ground legal authority in moral terms.21
Islamic legal theory is not, therefore, so different from liberal constitutional theory in its search for a foundation. Given the absence of a basic norm, Islamic constitutionalism seems likely to face the same tension as liberal constitutionalism in attempting to identify the basis of constitutional authority; it will be, in Jeremy Waldron’s words, “disagreement all the way down, as far as constitutional choice is concerned.”22 If morality in whatever form, including “God’s will,” is “disagreement all the way down,” it cannot serve as the basis of constitutional authority. And without a moral foundation, Islamic legal theory, like liberal political theory, must locate the founding moment of constitutional authority elsewhere.23
17 The two major branches of Islam, the Sunni and Shia traditions, differ regarding the political authority of historical and religious figures. Generally speaking, Sunni Muslims recognize the political legitimacy of the first four leaders, or caliphs, of the Islamic community (following the death of the Prophet), while Shia Muslims only recognize the authority of the fourth caliph, Ali (the Prophet’s son‐in‐law), and his descendents. More important, in the Sunni tradition, no political ruler, including the first four caliphs, has any special claim to interpreting the divine will. Conversely, in the Shia tradition, the twelve Imams (leaders) beginning with Ali and ending in the ninth century did have divine authority. Their interpretations of religious law were infallible. See WILLIAM L. CLEVELAND, A HISTORY OF THE MODERN MIDDLE EAST 34‐36 (2000). As a practical matter, neither tradition can identify political leaders with divine authority today. But the distinction is important. If I were exploring questions of constitutionalism from the perspective of the Shia tradition, the crucial role of the twelve infallible Imams would significantly affect my analysis of the historical norms of governing authority. 18 KELSEN, supra note 6, at 114. 19 Id. at 113. 20 Id. at 114. 21 Islamic theories regarding God’s justice resemble Rousseau’s conception of it: “All justice comes from God, who is its sole source; but if we knew how to receive so high an inspiration, we should need neither government nor laws.” JEAN‐JACQUES ROUSSEAU, THE SOCIAL CONTRACT AND DISCOURSES 210 (G.D.H. Cole ed., 1993). 22 JEREMY WALDRON, LAW AND DISAGREEMENT 295, 303 (1999). 23 Frank Michelman notes that positivists seek “to block the regress [of founding authority] by shifting attention from the space of norms to the space of facts, and specifically to the convenient fact that a critical mass of the country’s inhabitants (or officials) does, as it happens, intersubjectively concede a regulative force to an actually
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operative practice of government that these inhabitants for some reason or other tend to identify with (or hypostatize as) a textoid that they call ‘the Constitution.’” Frank I. Michelman, Constitutional Authorship, in CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS, supra note 3, at 73. But, as Michelman argues, when searching for the foundation of constitutional authority, “[w]hat those reasons may be are a part of what we are after.” Id. That is, if we cannot ground constitutional authority in the universal truths of moral or natural law, we must find another source, namely a theory of popular sovereignty consistent with constitutional democracy. H.L.A. Hart was well‐aware of this problem, arguing that sovereignty cannot be attributed to either the legislature or the electorate. See HART, supra note 7, at 64‐75. In order to make sense of a legal order, Hart argues that we must identify rules that constitute the sovereign. Id. at 75. We cannot identify the public authority without reference to rules and ultimately to social facts. See, e.g., id. at 74. But to construct a normative theory of constitutional democracy, we must find a way not simply to recognize popular sovereignty, but also to justify it.
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Secularism and Indian Constitution- Is the Secular Character of Indian Democracy Under Threat
Vivek Salathia Rajiv Gandhi National University of Law Punjab, India
India, the land of bewildering diversity, is a conglomeration of people, cultures, languages and religions. India’s diversity is reflected in the coexistence of sensuality and asceticism, carelessness and efficiency, gentleness and violence. In short, India is a kaleidoscope, you touch it and there is a new combination of shapes and colours.
The American society is looked at in the terms of a ‘melting pot’, India, on the other hand, is not a ‘melting pot’ it is a ‘mosaic’. India is a country which is a host to all conceivable religions and ways of life. India has followed a principle of “unity in diversity”. This unity is based on democracy, federalism, tolerance and secular character of the state. Many societies have sought to hide their diversities and refuse to accept their heterogeneity and have paid a high price. The post- Cold War world has seen the disintegration of some states which were, though federal in appearance, non-democratic to the core. The key to India’s success as a federal democracy is the recognition of its diversities. Acceptance of all religions and different ways of life is the cornerstone of the Indian culture, heritage and polity.
At independence in 1947, India was a nation embarking on a new and challenging endeavour of building an economically independent democracy that would treat all its citizens equally. As a part of this enterprise, India made a commitment to ‘secularism’, which in the context of the two nation theory and the creation of Pakistan on the basis of religion, acquired even more significance. The message was that India would not construct its citizenship and nationality on the basis of religious identity.
During the drafting of the Indian Constitution, despite the reluctance of the Constituent Assembly to incorporate the word ‘secular’, and despite the fact that the word ‘Secular’ was formally inserted in the Preamble to the Constitution of India by the 42nd Amendment of 1976 to the Constitution of India, still, a survey of the provisions of the Indian constitution suggest that India as a state is separate from religion and would guarantee religious freedoms to the citizens of all faith, while not discriminating against any citizen on the basis of religion. Thus, the Indian Constitution guarantees both individual and collective freedom of religion through the Articles 25-28 enshrined in the Part III of the constitution which deals with Fundamental rights. Article 15 and 16 also guarantees non discrimination on the ground of religion. The Indian constitution through its preamble, fundamental rights and directive principles has created a secular state based on the principle of equality and non-discrimination. With the advancement of Indian Constitutional philosophy of social and economic democracy, secularism has been held to be one of the ‘Basic Structures’ of Indian Constitution. Thus, the nature of polity
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promised in the preamble is incapable of alteration even in the exercise of the power to amend the Constitution under article 368.
Religion is a matter of faith. Though the critics might not agree but it is indeed a fact that India and its people, though have entered the globalised era, but still maintain the deep religious values at the core.
The present scenario of ‘Secularism’ in India is indeed a cause of concern. Today, the secular character of the Indian democracy is considered to be under threat. The razing of the Babri Mosque in Ayodhya (Uttar Pradesh) led to riots and killings by Muslims and by Hindus. The recent massacres of innocent Hindus in Godhra (Gujarat), presumably ignited by smoldering Muslim resentments against the Hindutva proponents over Ayodhya, touched off a larger massacre of equally innocent Muslims in tit-for-tat killings that undermined yet further the amity under which these religious communities had lived earlier in Gujarat State in an atmosphere of secularism. Apart from these, the unspeakable atrocities of 1984 against the Sikhs in Delhi after the assassination of Prime Minister Indira Gandhi; and an occasional slaying of proselytizing Christian missionaries clearly presents a grim picture of “Indian Secularism”, moreover, the intrusion of religious passions and caste loyalties into Indian politics casts serious doubts over the claim of India to be a secular and theocratic state. This is also highlighted from the changing trends of the decisions given by the Hon’ble Supreme Court of India, which is regarded as the guardian of constitutionalism in India. The Hon’ble Supreme Court of India in Sardar Taheruddin Syedna Saheb v. State of Bombay , AIR 1962 SC 853, 871 for the first time explained the concept of secularism wherein Ayyangar, J., explained: "Articles 25 and 26 embody the principle of religious toleration that has been the characteristic feature of Indian civilization from the start of history. The instances and periods when this feature was absent being merely temporary aberrations. Besides, they serve to emphasize the secular nature of the Indian democracy which the founding fathers considered to be the very basis of the Constitution."
In Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, the Constitutional Bench of the Hon’ble Supreme Court reiterated that secularism was a part of the basic structure of the Constitution. This view crystallized in the landmark case of S.R. Bommai v. Union of India (1994) 3 SCC 1. In fact, the Judges in S.R. Bommai’s case went on to say that the concept of secularism in the Indian Constitution is in broad agreement with the U.S. Constitution's First Amendment. However, within a year the Hon’ble Supreme Court in Ismael Faruqui v. Union of India (1994) 6 SCC 360 started diluting the active, positive concept of secularism based on scientific thinking it had advocated in the S.R Bommai’s case. Subsequently, in the infamous Ram Janambhoomi case, the Hon’ble Supreme Court justified its concept of secularism by quoting extensively from Indian scriptures. Verma, J. (as he then was) (speaking for Venkatachaliah, C.J. and Ray, J.) quoted from the Yajur Veda, Atharva Veda and Rig Veda to justify its concept of secularism: 'Sarwa Dharma Sambhava', i.e., tolerance of all religions. This reasoning seemed to be odd wherein the Hon’ble Supreme Court was justifying secularism by religious scriptures. The Supreme Court seemed to have rejected the western concept of secularism based on separation of the Church and the State as explained in the earlier verdict of S.R. Bommai and
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went back to equating secularism with tolerance. The Court also noted that the State has the power to take over any religious place including a mosque. Though dissenting, Bharucha, J., supported the concept of absolute, positive and active secularism, more in tune with that spelt out in S.R. Bommai. Yet even he accepted that secularism in India exists because of the tolerance of the Hindus who are the majority religion. However, though in some of the recent judgments the Hon’ble Supreme Court has again shifted from the confusing interpretation of Secularism. But this again highlights an important issue that the secular character of India has in fact received a setback and the issue of Secularism in India today is not simple especially in light of the growing religious fundamentalism which owes its revival to the failure of the government in controlling societal attacks.
Another probable cause for the threat to “Secularism” can be attributed to the large scale religious turmoil at the international level. The after impact of the 9/11 has, as a matter of fact, led to the rise of religious fundamentalism across the world which has grown itself into religious fanaticism probably because of the singling out of one particular religion, despite the fact that the act was done by a handful of people. This indifferent approach of singling out a religion has lead to large scale resentment amongst people of various walks of life. India as a part of the globalised world has been adversely effected by this turmoil. However, still there is hope, as if we trace bits and pieces of Indian history it can be safely said that India, despite numerous adversaries has always been able to find a via media for survival by maintaining the same diverse socio-religious culture. India still maintains its secular character, however, what is probably required is that India as a democratic and secular State must not allow itself to be identified with any religion, and also must ensure that while guaranteeing the freedom of religion for all, it should not legislate on the basis of any religion. To sum it up, we should adopt the approach encapsulated in the famous hymn of the father of the nation, Mahatma Gandhi, that is, iswar allahteryra naam ( Ishwar and Allah are but the two names of the same god)
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Religion and the State
Michel Troper University of Paris X France
Beyond normal differences in policy and political preferences between various groups and various historical periods, the way a State organizes its relations with religions is a reflection of some fundamental ideas regarding the very nature of the State. If we consider the French case, it would seem that there is nothing in common between the situation before the Revolution when Catholicism was the religion of the State and other religions were at best simply tolerated and sometimes repressed, the situation during the revolution, where the Church was prosecuted, the 19th century when religions were organized as a public service and priests were civil servants, the 20th century when religions and State where separated, religion was defined as a free but entirely private practice and finally the present when some religious behaviors are regulated, as the wearing of the hijab in public high schools, a regulation that some view as a restriction of freedom of religion. Yet, when we look at the debates and the arguments that have been used over several centuries, we may find that they all refer to a common conception of sovereignty. I will try to show how the doctrine of sovereignty that has prevailed in France since the beginning of the 17th century implies that the State regulates religion, even when apparently there is a separation of church and State. Then I will analyze the debates over the islamic veil and show how both parties also refer to that same conception.
Sovereignty It would be easy to stress that because every State is sovereign and sovereignty is an absolute and unlimited power, every State necessarily has rules on religion. Of course could be a rule that prohibits the State from interfering with religion, but such a rule would still be a rule enacted by the sovereign State. Thus, by definition, there could be no such thing as a strict separation between State and religion. For the same reason, a submission of the State to religion is impossible. A rule that would order courts to apply religious rules, would still unilaterally emanated from the State. Thus, it can always be repealed (perhaps not politically, but legally at least) and the courts can interpret it. One good example is that of Egypt. Article 2 of Egypt’s constitution of 1971, as amended in 1980, proclaims that: “Islam is the Religion of the State. Arabic is its official language, and the principal source of legislation is Islamic Jurisprudence (Sharia).” However, the Supreme Constitutional Court of Egypt decided that sharia is only binding because of article 2 and therefore that it derives its force not from religion but from the constitution, i.e. from the will of the constituent power. This implied that
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sharia is part of the constitution, and must be interpreted not by religious authorities but by the court. On the basis of that doctrine, the court decided in 1993 that sharia includes beside absolute that are not subject to interpretation other principles that are relative and change with time and place. Then the court has considered in all the cases it examined that the principles of the sharia that were in question were only relative principles, and it gave a very liberal interpretations of these principles. One example is particularly striking: in 1994 a decision by the Minister of Education limiting the wearing of the islamic veil in schools has been considered perfectly constitutional, i.e. compatible with sharia law. Nevertheless it is true that although all states necessarily have rules regulating religion, in some cases we find only negative rules, the State explicitly or implicitly giving religion full autonomy. One might think that the choice between having only such negative rules or actively regulating religious activities is one of policy and would simply reflect the preferences of the rulers of the moment. However, sovereignty is not an empirical quality of the State. It not an absolute principle from which specific rules can be deduced. It is a doctrine – or rather a family of doctrines - that is constructed in order to justify the type of political power that has being exercised first in Europe since the 17th century, then in the rest of the world. While all states must use such a doctrine, the particular shape of the doctrine may vary according to the needs of the political power that it seeks to justify. Thus, the French conception of sovereignty was developed in the 17th century mostly for the purpose of controlling religion. In order to end the religious wars, there was an urgent need not only to build a strong power capable of keeping peace and security, by imposing itself upon religious parties, but also to justify that dominance with a principle that would be of a religious nature. That principle was the divine right of kings. Such a principle could nevertheless become dangerous for the kings because the Church could claim a monopoly to interpret divine law and thus gain supremacy over kings, who would thereby be deprived of much of their power. The situation of kings would be particularly difficult in case of a conflict between religious and secular laws. This is precisely what happened with King Henry IV of France, who was the heir to the throne according to salic law, but who had been excommunicated by the Catholic Church. In order to let salic law prevail over canonic law, the best way was to claim that salic law itself was divine and that sovereignty resided entirely in the king. In order to claim autonomous power over political affairs, kings needed to subordinate religion by affirming a divine right of kings, which then allowed them to act independently of the Church’s views. Since the king’s power did not depend on the church, it was unlimited, absolutus, and could be exercised over any possible subject matter. As such, sovereignty could be defined, as an absolute and supreme power, summa potestas, which could not be made subservient to any other power, not even that of the Church that of the Church. Sovereignty therefore also would not depend upon the personal virtue of the king, but rather upon the essence of the monarchy
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But, if it is unlimited in the sense that there is no other power above it, it is also unlimited in the sense that there is no domain that it cannot rule. In particular, religious matters are within the king’s power and the actual exercise of that power over religion is necessary not only because it is a means to keep peace and order, but also because the unity of the nation and citizenship itself are not natural. It has to be forged by the State, by creating a set of common beliefs and practices. This conception has been maintained under different forms and with different specific policies from the 17th century to this day. Before the Revolution it took the form of “gallicanism”, a doctrine that claimed the right of the king to decide over all matters regarding the church, except over purely spiritual questions. But what was spiritual and what was temporal was also for the king to decide. Similarly, in the 19th century, the three religions existing in France were considered a public service, religious buildings belonged to the state and ministers were paid as civil servants. The same idea is the base of the modern doctrine of laïcité. It is connected to the French conception of sovereignty in two different ways. First, it has never been understood as a complete separation between State and religion or as a mere statement of freedom of religion. From the initial act of 1905, special provisions had to be made for religious buildings that were – and still are - public property and were placed at the disposal of religious authorities and sometimes maintained by the State. Moreover, in three departments, that were German in 1905 and became French again in 1918, religions still are a civil service and ministers civil servants. Moreover, since it is within the duty of the State to forge and keep the unity of the State by educating citizens and providing them with common values. Therefore laïcité is not without content and schools are expected to teach fundamental values and a common conception of the good. Similarly, to the extent that private schools (the vast majority of which are religious) play a role in the public service of education they are entitled to public subsidies. Secondly, the State is the guarantor of civil peace and liberty, the only source of law and individuals do not possess any rights other than those granted by the State. Therefore these rights cannot be conceived as rights against the State, but law, i.e. the State, defines them. French philosophers of the Enlightenment, e.g. Montesquieu or Rousseau defined political liberty as the right to be submitted to the laws, whatever their content and whatever the source of the laws. The reason is that the law being a general rule, that is public, every citizen knows the consequences of his actions and is capable of choosing to act or not. Of course, this even more true when the law becomes the expression of the general will. As a consequence, a statute regulating some activity does not restrict the liberty of citizens but defines it. Rousseau could write that if I am sent to prison on the basis of a law, I am “forced to be free”. Thus, freedom of expression is defined by the Declaration of the Rights of Man of 1789 “The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law”. The last phrase, “as shall be defined by law”, is important. It means that freedom of expression will be equally guaranteed both when any
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kind of writing is permitted and when law punishes some types of writings. The same is true for freedom of religion. It is therefore not surprising that very different conceptions of laïcité coexist. For some, laïcité is a sort of a secular religion; for others it only means neutrality of the State towards religion. But neutrality may also mean either that the State leaves religion entirely to the private sphere or that it treats all religions equally. On the base of these different conceptions different choices of policies can be equally be advocated, all in the name of laïcité, e.g. financing religious schools or refusing any public funding; banning religious education in public schools or encouraging it; keeping or abrogating the special legislation for Alsace; prohibiting local authorities to subsidize for the construction of mosques or on the contrary encouraging such construction on the principle that Catholics, protestants and Jews already enjoy the use of religious buildings that are private property. This is the background against which the problem of the veil has been debated in France.
The hidjab On march 15 2004 a statute was enacted prohibiting the wearing in primary and secondary public schools (but not in universities) signs or dress that ostensibly demonstrates religious affiliation. Although the law was written to apply to crosses or yarmulkes, thus formally treating all religions equally, it was clear that its chief purpose was to ban the Muslim veil or hidjab. This is the reason why it was considered by some, mainly outside France, as an infringement on freedom of religion. E.g. President Obama said in his Cairo speech (June 4 2009) that, “, it is important for Western countries to avoid impeding Muslim citizens from practicing religion as they see fit - for instance, by dictating what clothes a Muslim woman should wear”. However in the very long and passionate debate over the veil freedom of religion was never the main issue, even for most of those who opposed the prohibition. Indeed the word “hidjab” was hardly ever used. One of the reasons was that even after since the law of separation between State and church, religion could be practiced and taught even in public schools, where chaplains were authorized to teach catechism. What was forbidden was religious propaganda within the precinct of the school. Thus, before the act of 2004, the relevant question was whether the veil could be seen as an instrument of religious propaganda or a mere exercise of religious freedom. Another issue was gender equality. There was a general suspicion that some of the young women wearing the veil did not act on their own free will but were manipulated by fundamentalist groups or at least pressured by their fathers. Because of the French conception of liberty, a majority in the country believed that it was the duty of the State to protect these women against their particular communities and to integrate them as citizens into the national community. They merely disagreed on the means. Some thought that the young women ought to be protected both by allowing them to wear the veil if they sincerely chose to do so and by accepting them in schools, so that they could be taught republican values. Others thought that a prohibition to wear the veil would provide the girls who wished to resist their families with a strong argument, to the effect that
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they would to go to school and be integrated as citizens of the republic. The debate was thus not freedom of religion, or secularism, but on whether or not banning the veil would further the purpose of republican integration and protection of women. Another complication arose from what was felt as a contradiction between the fundamental values of the republic, which include equality of men and women, and the particular interpretation of Islam which placed in a subordinate position, that the veil had come to symbolize. At first, following an advisory opinion issued by the Conseil d’État in 1989, the government left it to school authorities to decide whether to admit or not these young women on a case-by- case basis. These local school authorities were left to discover if the veil was worn as an instrument of religious propaganda. At the time, most commentators found this way of dealing with the problem extremely clever. They thought that a general rule would provoke mass demonstrations. On the other hand, decisions taken by school authorities would be challenged in court and judges would discover a coherent set of principles, so that law in a way similar to the US would govern the country. However, this proved highly impractical, mainly because school authorities had no clear guidelines as to what constituted religious propaganda and were facing both strong opposition from teachers committed to a tradition of militant laïcité if they accepted young women wearing the veil and demonstrations from Muslim fundamentalists if they did not. When their decisions were challenged courts proceedings were too long and judicial opinions allowed for too many subtle distinctions, so that it was difficult for school principals to know what the law required in a given case. In 2003 President Chirac created a committee of politicians and experts to analyze the situation and propose a solution. The committee reached an almost unanimous conclusion: the republican tradition required an act of Parliament. The law was passed the following year. Instead of prohibiting religious propaganda, the statute broadly prohibits all signs that ostensibly demonstrate a religious affiliation. It was not challenged before the Constitutional council and has been applied ever since without major incidents. In December 2008, the European Court of Human Rights, in a unanimous decision, rejected a complaint by two young women who had been expelled from a junior high school in 1999 because they had been admitted with their veil, but had refused to take it out for a gym class. Today, the veil in schools does not pose any major problem. The girls who have been expelled are allowed to continue to receive an education, either by mail from a specialized department of the ministry of education or in private schools, mainly religious schools, subsidized by the State and where the law is not applicable. Nevertheless, a new problem has arisen in the past few months. Some French cities have seen women wearing not merely a hidjab, but a Nikab, that covers the whole face except the eyes or even a Burkhaa that also hides the eyes. A parliamentary committee has been created to examine the matter, but it seems that the question will be discussed in the same terms: it does not bear on freedom of religion, but on public order. In the words of the Constitutional council “no one can prevail oneself of one’s religious beliefs to escape common rules regarding the relations between public authorities and individuals”.
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The Turkısh Constıtutıonal Court and The Use of Relıgıous Symbols in Hıgher Educatıon Establıshments: The Case of 5 June 2008
Mehmet Cengız Uzun1 Bahçeşehir University Istanbul
INTRODUCTION
After intense debate, Law No. 5735 amending Articles 10 (Equality before the Law) and 42 (Right and Duty of Training and Education) of the Turkish Constitution was adopted by the Turkish National Assembly on the 9th of February 2008. It was presumed that these amendments would bring an end to the decade long dispute concerning the use of Islamic headscarves by female students in higher education establishments. The amendments contained no clear reference on the issue. Instead, they foresaw the introduction of two provisions - one to article 10 and the other to article 42, establishing and reinforcing the existing texts with regards to equality in receiving public services and the prohibition of interfering with the right to a higher education in cases not foreseen by law. Nonetheless, when taken into context with ongoing debates and the General Justification of the Law, it was clear that the sedes materiae was the resolution of the complicated legal deadlock surrounding the use of religious symbols within higher education establishments2. Law No. 5735 was ratified on the 22nd of February and entered into force the day after. Alleging the unconstitutionality of the law, the main opposition party went before the Constitutional Court (Court) on the 27th of February. This application not only stirred the pre-existing dispute on the socio-political nature of the issue, but also caused the jurisdiction of the Court to be put under scrutiny. Those in defense of the amendment claimed that the Court could not examine the constitutionality of the amendment, for under Article 148/1 of the Constitution, “Constitutional amendments shall be examined and verified only with regard to their form”. On the other side of the forum argued that the amendment would undermine the principle of “Laicism”, which not only was an inherent principle of the Turkish constitutional order, but was also at the peak of the de facto hierarchy of norms within the Constitution due to its non- amendable nature. On the 5th of June, the Court delivered its judgment and, finding the proposed amendments contrary to the Constitution, annulled Law No. 5735.
In order to understand the true debate, one must understand that within the Turkish legal system no clearly stipulated law or constitutional provision exists prohibiting the use of Islamic headscarves by female students in higher education establishments. The existing ban is
1 Bahçeşehir University Faculty of Law. Istanbul/ Turkey, 12 July 2009. Email: [email protected]. 2 The second paragraph of the General Justification of Law No. 5735 states: “The prevention of the right to training and education of certain students in higher education establishments due to their clothing and attire has become a chronic problem” which has prevented “for a long time, the use of the right of training and education by some female students because of the veil they use to cover their heads”.
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the result of a complex legal juxtaposition of constitutional norms and values, and their interpretation by the judiciary. Within this context, the prohibition is derived not from the wording of the Constitution per se, but from its spirit and the values and principals that derive from it. To this end, this paper aims to provide a brief insight into the legal dialectics surrounding the issue and the constitutional rationale of the Court. We will not question the legitimacy of the decision or its socio-political effects, for such a brief work cannot exhaust the diverse and complicated aspects of the problem. Any such attempt would be, if nothing else, lacking.
I. A BRIEF OVERVIEW OF THE CONSTITUTIONAL PROTECTION OF LAICISM
Laicism is heavily present in word and spirit in the Constitution, and is firmly protected by the non-amendment regime. The Preamble of the Constitution contains a non-protection clause against acts contrary to the “‘…reforms and modernism of Atatürk and that, as required by the principle of secularism3” and clearly states that “there shall be no interference whatsoever of the sacred religious feelings in State affairs and politics”. Under Article 14 and Article 25 of the Constitution, the Turkish State is a laic republic. Under Article 4 “The Provisions of Article 1 of the Constitution establishing the form of the state as a Republic, the provisions of Article 2 on the characteristics of the Republic… shall not be amended, nor shall their amendment be proposed”. Beyond the protection provided by Article 4, the Constitution also brings an important self-preservation clause under Article 174, according to which “Reform Laws” 6 which aim at protecting the laic and western oriented formation of the Republic cannot be interpreted unconstitional. All these safeguards form an important constitutional basis for the constitutional judge.
The central point of divergence between different political actors about the principle has been, as usually is with constitutional principles, how it should be interpreted and applied in day to day state administration. Although based on the French model, its official interpretation and application has differed. It has gained a sui generis conception. This
3 The text of the Constitution uses the expression “laik” in Turkish, taken from the french “laic”, but official translations use the english expression “secular” when used as an adjective. Turkish tradition of laicism stems substantially from the French doctrine and the focus is on the withdrawal of the educational and instructional domains from the sphere of religious influence. TANÖR Bülent, YÜZBAŞIOĞLU Necmi, 1982 Anayasasına Göre Türk Anayasa Hukuku – 2004 Değişikliklerine Göre,6th Edition, Beta, Istanbul, 2004, p. 76. 4 Article 1. “The Turkish state is a Republic”. 5 Article 2. “The Republic of Turkey is a democratic, secular and social state governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the Preamble”. 6 The first paragraph of Article 174 reads “No provision of the Constitution shall be construed or interpreted as rendering unconstitutional the Reform Laws indicated below, which aim to raise Turkish society above the level of contemporary civilization and to safeguard the secular character of the Republic, and which were in force on the date of the adoption by referendum of the Constitution of Turkey”. The Article continues with clearly stipulating which laws in force retain a constitutional value. Some of them are: Act No. 430 on the Unification of the Educational System, Act No. 677 on the Closure of Dervish Convents and Tombs, the Abolition of the Office of Keeper of Tombs and the Abolition and Prohibition of Certain Titles; The principle of civil marriage according to which the marriage act shall be concluded in the presence of the competent official, adopted with the Turkish Civil Code No. 743 of 17 February 1926 etc.
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conception of laicism7, as underlined by the European Court of Human Rights (ECHR)8, is in fact what lies between the prohibitions on religious symbols within higher education establishments. According to the Court in its Judgment of 1989, the importance of laicism for Turkey does not derive from its definition sensu stricto; it carries a major value when taken into account with the “historical evolution of the concept” within Turkey9. The Courts choice of preferring this historical and teleological interpretation – which will also be used by the ECHR10 - is both in jurisprudence and in execution the main reference point for the ban on Islamic headscarves in higher education establishments.
II. A SHORT STORY OF THE OPERATIVE BAN ON THE ISLAMIC HEADSCARF IN HIGHER EDUCATION ESTABLISHMENTS
In order to understand the rationale behind all the legal dialectics related to the issue one has to understand the fragmented legal history of the headscarf ban. The ban applied in higher education institutions in Turkey is the result of a highly complicated legal matrix of constitutional interpretation and the application of general principals of the Republic. There exists no explicit norm of a constitutional value or law within the Turkish legal system that in a clearly defined scope prohibits the use of the Islamic headscarf by female students within higher education institutions. As a debate in the public sphere, the issue of the use of religious symbols in higher education establishments – especially the Islamic headscarf –first started in the 1970’s. By mid 1980’s, after the adoption of the Constitution of 1982, the issue raised great concern within some spheres while others wanted a clear permission to use religious symbols in higher education establishments. Since no clear regulation existed on the issue, the National Assembly adopted Law No. 3511 in 1989 which inserted Additional Article 16 to Law No. 2547 concerning Higher Education. The article clearly stipulated that “Within higher education establishments, classrooms, laboratories, clinics, and policlinics and in corridors it is obligatory to be in modern clothing and looks. The closing of the neck and hair with a cloth or with a turban due to religious reasons is unrestricted”. Openly providing the freedom to use Islamic headscarves in higher education establishments, the law was taken to the Court by the President of the Republic, which on the 7th of March 198911 annulled the law in question, finding it contrary to the Preamble, Articles 2, 10, 2412 and 174 of the Constitution.
Having failed to solve the problem, the National Assembly adopted in 1990 Law No. 3670, a vaguely formulated legislation, so that the Court’s judgement of 1989 could be bypassed. Article 12 of the Law inserted Additional Article 17 in to Law No. 2547 on Higher Education and stipulated clearly that “Without being contrary to legislation in force, clothing
7 ÖKTEM A. Emre, La Spécificité de la Laicité Turque, Islamochristiana, 29, 2003, p. 94. 8 See Şahin v. Turkey, Grand Chamber, ECHR, 10.11.2005. 9 Turkish Constitutional Court; Judgement of 7 March 1989, E: 1989/1 K: 1989/12. 10 See Refah Partisi v. Turkey, Grand Chamber, ECHR, 13 February 2003; Şahin v. Turkey, Grand Chamber, ECHR, 10 November 2005. 11 Turkish Constitutional Court; Judgement of 7 March 1989, E: 1989/1 K: 1989/12. 12 Freedom of Religion.
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and attire is unrestricted in higher education establishments”13. Since no clear prohibition ever existed and since there was no clear reference to any political, religious or other sort of ideology, it was clear that the stipulation of a freedom could and would not be contrary to the Constitution. Yet, the game of interpretation came into play after the application of the opposition parties to the Court. The Court in its judgment of 199114 came to the conclusion that the regulation in question was not contrary to the Constitution, because the phrase “Without being contrary to legislation in force” did not only imply laws in a restrictive sense, but also included the Constitution as norm-superior and the Court’s jurisprudence; for under Article 153 of the Constitution “The Constitutional Court Judgments… are binding on the legislature, executive and judiciary, administrative offices, natural and legal persons”.
Thus, according to the Court, its jurisprudence of 1989 stood and that the freedom brought with the provision in question “should be accepted as not including “the closing of the neck and hair with a veil or turban due to religious beliefs”. With a accelerating pace, especially from 1997 on, many Universities in Turkey, referring to the judgment of 1989 and 1991 and Article 153 of the Constitution, adopted circulars prohibiting the use of religious symbols. Naturally, this created a non-uniform execution between various universities and institutes and gave rise to a new debate about the prohibition and the interpretation of Additional Article 17. Additional Article 17 on the freedom of clothing and attire in higher education establishments is still in force today, and the prohibition due to the Court’s jurisprudence is still applied.
It is within this respect that the National Assembly adopted Law No. 5735 in 2008, this time directly attempting to modify the Constitution itself in order to bypass the Court’s jurisprudence. The solution to the problem was seen as a two step formula. First, according to Article 1 the phrase ‘and in all enjoyment of public services’ would be added after the existing expression ‘in all their proceedings’ in article 10/4. Thus the amended version of the text would have read as ‘State organs and administrative authorities shall act in compliance with the principle of equality before the law in all their proceedings and in all enjoyment of public services’. Taking into account that access to education is a right under article 42 of the Constitution entitled “Right and Duty to Training and Education”, providing access to this right constitutes a civil service in which no discrimination would be allowed during its enjoyment.
The second step of the solution was to directly amend Article 42 itself. According to Article 2 of the Law, the phrase “No one can be denied, for any reason at all, the right to higher education in cases not openly stipulated by law. The limitations of the use of this right are defined by law” would be added as a new provision after the 6th paragraph of article 42. Hence the drafters of the amendments hoped to force a new interpretation on higher educational establishments and the Court itself. Taking into account that the applied ban, lacking any “openly stipulated law” to back it up, stemmed from the application of the Courts interpretation; the rationale intended to create a conflict between the Constitution and the
13 The law in question also contained a transitional Article concerning a general amnesty for students who had received disciplinary sanctions due to the use of religious symbols in higher education establishments. 14 Turkish Constitutional Court, Judgement of 9 April 1991, E: 1990/36, K: 1991/8.
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former jurisprudence of the Court in which, the latter was doomed to fail. Thus, the circulars in force lacking any constitutional backing would have to be withdrawn, in respect to the “new” version of Article 10 and Article 42 of the Constitution. The Government expressed on numerous occasions that these amendments would not only suffice to solve the problem, but could not be taken under scrutiny by the Court, for it did not have the competence to do so. Yet such was not the case.
III. THE CONSTITUONAL COURTS JUDGMENT ON LAW NO. 5735
The first and main legal dilemma before the Court was not whether the constitutional amendment per se would allow all kinds of religious symbols within higher education institutions, although such was expressed as the major aim of the law; but the problem was in fact whether the Court had jurisdiction in the first place to decide on the constitutionality of constitutional amendments. Under Article 148/1 of the Turkish Constitution “Constitutional amendments shall be examined and verified only with regard to their form…”. Thus, as can be expected, a vast debate erupted, for not only would the Court examine the amendmend, but it would do so by controlling the substance of the amendment itself. At this point, what has not been expressed by those who alleged the Courts decision as unconstitutional is that the Court has in fact a long and steady jurisprudence on its own jurisdiction when faced with constitutional amendments. This is why, although we may not always concur with its jurisprudence, it should have not come as a surprise.
Since its initial establishment the Court had already interpreted its jurisdictional framework extensively when it came to constitutional amendments. According to the Court, amendments explicitly and a fortiori implicitly affecting the legal construct put forth by the non-amendable articles regime was open to its scrutiny. The Court adopted the simple rationale that legislative power could not be conceived as legibus solutus. For example, in a Judgment given by the Court already in 1970 under the Turkish Constitution of 1961, the Court had bypassed a similar discussion concerning its jurisdictional reach. Under the Constitution of 1961, containing similar conditions, the Court had come to the conclusion that15:
“According to this article [9], “the Constitutional provision which dictates that the form of the State is a Republic cannot be amendment and such an amendment cannot be proposed … Then, the unconstitutional character of proposing and accepting a Constitutional amendment which only keeps in place the expression “Republic”, but either entirely or partially or by method of annulling all its elements in order to bring a regime, which ever direction it might lead to, but is impossible to conform with the principles of the Constitution of 1961, is undisputable … Within this context, no law can be proposed or adopted which aim to change these principles through direct or indirect amendments to them or to other provisions of the Constitution”
15 Turkish Constitutional Court Judgment, 16 June 1970, K: 1970/31.
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Thus, in the present case, the Court citing its long and steady jurisprudence on its jurisdiction towards constitutional amendments16, reaffirmed that the restriction brought to its competence with the phrase “with regard to their form” under Article 148 also included the form foreseen under Article 4. Under the non-amendable articles regime, it could and would examine if the proposal in question could be “proposed” in the first place. Consequently, it would look if the substance of the proposal was contrary to the non-amendable articles. Within this respect the Court found that, it was clear from the discussions within the National Assembly, the Commission Reports and the Justification of the Law that the amendment had the main purpose of lifting the restrictions on the use of religious symbols in higher education establishments without eliminating public fears and foreseeing safeguards. The Court also expressed that the adoption of the law had been in a manner non-compatible with the consensual standards of democracy and that the legislation was imposed. Reaffirming both its own jurisprudence and the jurisprudence of the High Administrative Court (Danıştay), the use of the Islamic headscarf would not only create pressure on non believers or Muslim females that do not cover, but would also give ground for the use of religion for political purposes, which could not stand before the Constitutional order. Hence the Court, in order to protect public order and the Constitutional legal regime, and in order to protect the fundamental rights and freedoms of others - citing the jurisprudence of the ECHR relavent to the issue17 - found that the proposed amendment was directly and indirectly contrary to the Constitution and the non-amendable principal of laicism. According to the Court:
“When the Constitutional Court and the European Court of Human Rights judgments are observed, the conclusion has been reached that the provisions brought to articles 10 and 42 of the Constitution; as a method, the use of religion for political means, and contentwise, the violation of others rights and giving rise to grounds for the disruption of public order, are clearly contrary to the principle of laicism”.
CONCLUSION
The debates surrounding the jurisdiction of Constitutional Courts are not new to Constitutional Law. The question of jurisdiction and interpretation has been, and will continue to be a never ending debate between different actors. This is especially the case when the issue in question concerns sensitive socio-political problems such as the relation between state and religion. It is also a fact that high courts have shown a tendency to enlarge their own jurisdiction through the use of interpretative techniques. Such has also been the case within the Turkish constitutional tradition and though the debate surrounding its legitimacy or appropriates has been in constant fluctuation, this recent case on the direct control of constitutional amendments has resulted in a high profile political and academic discussion. This has not been only due to the legal nature of the issue, but above all, it has become an important rhetoric in Turkish political discourse in which the various political actors have
16 Judgements of 16 June 1970, K:1970/31; 13 April 1971, K: 1971/37; 15 April 1975, K: 1975/87; 23 March 1976, K: 1976/19; 12 October 1976, K: 1976/46; 27 January 1977, K: 1977/4; 27 September 1977 ,K: 1977/117. 17 Dahlab v. Switzerland, ECHR, 15 February 2001; Refah Partisi v. Turkey, Grand Chamber, ECHR, 13 February 2003; Şahin v. Turkey, Grand Chamber, ECHR, 10 November 2005.
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regrettably adopted a divisive language. There have even been some unfortunate members of the National Assembly, which we will not cite in this paper, who have argued the necessity for a constitutional court in the first place.
Whether or not one supports the judgement that we have discussed , it is our belief that some issues with important social consequences should not be always left to the Court to decide upon. We believe that questions not resolved within the political and social domain, if left only to the Court may be eventually decided upon, but not resolved. For as all courts, the Constitutional Court has to decide within the range of the Constitution and its own jurisprudence has to be taken into account. If the political question itself stems directly or indirectly from the Constitution, the problem rests non-resolved and the Court is always left to blame. Such is and has been the case in Turkey surrounding the issue of religious symbols in higher education institutions and for this problem to be resolved, a democratic dialogue between all political actors and members of the society is a sine qua non.
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Evolutionary Due Process
Louis J. Virelli III Stetson University College of Law United States
The issue of evolution instruction in American public schools has a new master, and its name is due process. The debate in the United States about whether and how to teach evolution in public school science classes has been singularly focused on questions of government support for religion under the First Amendment’s Establishment Clause. Current measures in Louisiana and Texas, however, represent a shift toward a new “adjudicative model” for addressing questions of evolution instruction. This model permits individual educators to treat evolution issues on a case‐by‐case basis and in turn highlights a new constitutional issue—procedural due process—that could affect the future course of evolution education even more profoundly than the Establishment Clause by creating powerful disincentives for antievolutionist policymakers.
The adjudicative model is a new approach to combating evolution instruction that emerged in response to a series of pro‐evolution decisions in the federal courts. Prior to this new approach, antievolutionists put forth generally‐applicable, detailed mandates regarding the teaching of evolution. By contrast, the adjudicative model relies on higher‐level policy statements that do not focus explicitly or exclusively on evolution, but that empower individual educators to engage student inquires about evolution on a case‐by‐case basis. This transfer of discretionary authority to local educators fundamentally alters the nature of the government action involved in addressing evolution questions by traversing the oft‐discussed rule‐order distinction in administrative law.1 Instead of addressing the evolution issue through generalized legislation or rulemaking, state and local governments are encouraged to treat questions of evolution instruction as individualized cases to be “adjudicated” by educators as they occur.
The adjudicative model is the product of the ongoing development of the evolution instruction debate in the federal courts. Because this debate is fundamentally about religion, conflicts about whether and how evolution should be taught in public school science classes have centered on the Establishment Clause. A series of pro‐evolution decisions,2 however, forced antievolutionists to move from straightforward, religiously based attacks on evolution to more indirect, facially neutral ones. The courts rejected this move as well when, with the Selman and Kitzmiller cases in 2005, they made clear that even facially secular evolution
1 This distinction is a fundamental issue in American administrative law and is frequently identified by reference to two Supreme Court opinions from the early Twentieth Century. Compare Londoner v. City and County of Denver, 210 U.S. 373 (1908), with Bi‐Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441 (1915). 2 See, e.g., Epperson v. Arkansas, 393 U.S. 97 (1968) (invalidating a prohibition on evolution instruction because it violated the Establishment Clause); Edwards v. Aguillard, 482 U.S. 578 (1987) (invalidating “balanced treatment legislation” requiring the creationism and evolution receive equal attention).
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disclaimers violate the Establishment Clause.3 Prohibited from engaging in legislation or rulemaking that confronts evolution directly, antievolutionists shifted their focus toward higher‐level policy statements described as promoting an open‐minded, critical dialogue about the sciences. These broad policy statements promote a regime under which specific evolution questions are addressed by individual teachers in individual classrooms.
Recent enactments in Louisiana and Texas exemplify the adjudicative model. In June of 2008, Louisiana passed a statute requiring the State Board of Secondary and Elementary Education to “allow and assist . . . teachers” to help students think critically about “scientific theories . . . including . . . evolution.”4 In March of 2009, the state board of education in Texas5 adopted a new set of science standards requiring that students examine “all sides of scientific evidence,” including with regard to evolution.6 Both States enacted these measures with significant national attention and input from representatives of both sides of the evolution instruction debate,7 and although the enactments do not make any explicit statements about how or whether evolution should be taught, they are widely understood to represent antievolutionists’ latest attempt to frustrate public evolution instruction by supporting critical treatment of some scientific theories, including evolution, by individual educators on a case‐ specific basis.8
There are two significant consequences of this shift toward the adjudicative model. First, the Establishment Clause analysis, particularly as it depends on application of the Lemon test, becomes increasingly difficult to apply; facially neutral policies like those associated with
3 See Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 745 (M.D. Pa. 2005); Selman v. Cobb County Sch. Dist., 390 F. Supp. 2d 1286 (N.D. Ga. 2005). 4 LA. REV. STAT. ANN. § 17:285.1 (2008). 5 Texas is a particularly important participant in the evolution debate because it is the Nation’s largest purchaser of school textbooks and therefore retains significant influence over the content and direction of educational science texts. See April Castro, Texas Ed Board Approves Science Standards, HOUSTON CHRONICLE, Mar. 27, 2009, available at http://www.chron.com/disp/story.mpl/ap/tx/6346723.html. 6 The full text of the policy revisions is available at http://ritter.tea.state.tx.us/rules/home/sboeprop.html. 7 See, e.g., Darwin’s in the Details (NPR radio broadcast Apr. 3, 2009) (interview with Eugenie Scott, Director of the National Center for Science Education and Casey Luskin of the Discovery Institute regarding how the new Texas science standards affect evolution instruction); Letter from Richard O’Grady, PhD., Executive Director, American Institute of Biological Sciences to Louisiana State Representatives (June 9, 2008) (on file with author) (criticizing Louisiana statute as promoting religious explanations of human origins in the classroom); Memorandum from Paul G. Pastorek to City, Parish, and other Local School Superintendents et al. (Aug. 27, 2008) (defending Louisiana statute as “not promoting any religious doctrine”). 8 See Darwin’s in the Details (NPR radio broadcast Apr. 3, 2009) (statement of Eugenie Scott, Director of the National Center for Science Education explaining that Texas’ new policy permits individual teachers to respond to student inquiries about evolution by saying “perhaps you should read Genesis”); Id. (statement of Christine Castillo Comer, the former Director of Science for the Texas Education Agency stating that Texas’ new science standards may bind teachers “to just have to teach any kind of pseudo‐science” in response to student inquiries about evolution).
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the adjudicative model do not fit easily into the Court’s Establishment Clause rubric.9 Second, and more importantly for purposes of this discussion, evolution proponents will have a new weapon at their disposal in protecting the integrity of evolution in science classes—procedural due process (“PDP”) objections.
PDP challenges may seem relatively benign in the context of the evolution debate, particularly when compared to substantive objections under the Establishment Clause. There are two reasons, however, why the Due Process Clause could be more effective than the Establishment Clause in dealing with educational decisions that are adverse to evolution. First, whereas Establishment Clause challenges become more difficult when—like the adjudicative model—policy measures become less specific in their treatment of evolution or religion, PDP objections to such measures are likely to succeed. A simple application of the Supreme Court’s three‐part balancing test from Mathews v. Eldridge makes this clear.10 In situations where educators are confronted with a student inquiry about the veracity or exclusivity of evolution as an explanation of human origins, any response that supports the biblical or any other religiously‐based explanation immediately implicates the students’ First Amendment liberty interest in being protected from government establishment of religion.11 Moreover, when the decision as to how to respond to a student question is made by individual teachers or administrators, the risk of erroneous deprivation of that interest is significant; individuals who are untrained in the Constitution and are asked to make contemporaneous decisions about how to address the evolution debate are highly likely to overstep their constitutional bounds without the presence of procedural protections. Finally, the government has little interest in allowing these decisions to be made without any process. There is no obvious reason why such decisions must be made quickly and without prior deliberation. Delaying the answer to a student inquiry may be inconvenient in terms of the lesson plan for that class and may pose additional administrative costs, but when weighed against the students’ strong liberty interests and the high probability that those interests will be threatened without additional process, at least some opportunity for notice and a hearing is constitutionally required.
In addition to the likelihood that they will be successful, PDP challenges are also problematic for educators because of their ready availability. PDP challenges will be a viable option every time an educator chooses to answer a student question about the validity of evolutionary theory. This prevalence will deter educators from engaging in a scientific “critique” of evolution. Legislative or rulemaking efforts to combat evolution instruction are generally subject to a single Establishment Clause challenge, and as such the resultant costs to
9 See Louis J. Virelli III, Making Lemonade: A New Approach to Evaluating Evolution Disclaimers Under the Establishment Clause, 60 U. MIAMI L. REV. 423 (2006) (discussing how current doctrine is both over‐ and under‐ inclusive in dealing with facially neutral state action implicating the Establishment Clause). 10 424 U.S. 319 (1976) (prescribing a three‐part balancing test to evaluate PDP questions, in which the individual’s protected interest is weighed against the risk of erroneous deprivation of that interest and the government interest in not employing additional procedures). 11 See, e.g., Ingraham v. Wright, 430 U.S. 651 (1977) (defining a “liberty interest” under PDP as, inter alia, any “interest within the protection of the Fourteenth Amendment”); Everson v. Board of Educ., 330 U.S. 1 (1947) (incorporating the Establishment Clause into the Due Process Clause of the 14th Amendment).
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schools and educators, although potentially significant, are more predictable and easier to control. Moreover, the possibility of success in defending an indeterminate, facially‐neutral policy measure like the adjudicative model may encourage schools to more rigorously contest an Establishment Clause challenge, particularly if there is strong ideological support for that position in the community. By contrast, PDP challenges to the adjudicative model will be more frequent, fact‐specific, and successful and thus more disruptive to educators. The inevitability of, and difficulty in defending against, a PDP challenge, coupled with the fact that even a successful defense does not insulate a school or educator against the ultimate Establishment Clause action, makes these challenges a powerful deterrent for educators weighing whether to encourage their students to consider evolution alternatives.
There are two obvious questions raised by the suggestion that the availability of PDP challenges under the adjudicative model will seriously impact the evolution instruction debate. The first is whether educators could simply avoid the issue by adopting preemptive procedures for addressing student concerns about evolution instruction. The problem with this response it that it does little to alleviate the difficulties for antievolutionists created by PDP challenges. Rather than facilitate educators’ ability to address the evolution issue on a case‐by‐case basis, adopting procedures beforehand would create precisely the sort of deterrents to discussing alternate theories of human origins that antievolutionists seek to avoid. Moreover, since it would only make sense to adopt a procedural regime that is immune to constitutional challenge, the deterrent of a voluntary procedural system would likely be even greater than that prescribed by the courts.
A second question asks why the individualized nature of PDP challenges is somehow a more powerful deterrent to antievolutionist policymakers than that of individualized, “as‐ applied” Establishment Clause objections. The answer lies in the likelihood of success of PDP challenges and the resultant attractiveness of those challenges for the movant compared with Establishment Clause challenges. Successful PDP challenges create an administrative burden for educators on top of the cost of litigating an Establishment Clause case. This additional cost is also useful to movants because it could be sufficient on its own to discourage educators from taking the risk of engaging students in any discussion of evolution that even approaches the constitutional line, and thereby to preclude consideration of the Establishment Clause question altogether.
Antievolutionists’ adoption of the adjudicative model is understandable in light of the consistent constitutional rulings against more direct attempts to combat the teaching of evolution in public schools. What proponents of this new approach are likely missing, however, is the potentially negative effects of other constitutional issues—namely, procedural due process—on their ability to effectively limit evolution instruction.
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Plenary III
Gender and Constitution
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Reproductive Health and Abortion: Convergence and Divergence
Paula Abrams Lewis and Clark Law School United States
The pitched battles over abortion reflect profound personal and political divisions. They also are a reflection of legal constructs that tend to pit woman against fetus. This legal tension is most apparent in the abortion decisions of the Supreme Court of the United States. Roe v. Wade1 may have set the standard for liberalizing access to abortion. But it also created an intractable legal dichotomy when it stated, “the pregnant woman cannot be isolated in her privacy.”2 The Court, by inviting the state into the pregnancy, designated the womb as the battleground between woman and state.
The Roe Court’s protection of the right to choose under the rubric of constitutional privacy has been controversial for many reasons, not the least of which is societal ambivalence about recognizing privacy rights of women, particularly when the right is one that challenges deeply entrenched views of woman as mother. The Court’s shift from privacy to liberty in Planned Parenthood of Southeastern Pennsylvania v. Casey3, suffers from the same vulnerability – skepticism about women’s liberty to make reproductive choices unencumbered by patriarchal or state control.
Equality as a basis for reproductive choice remains problematic under existing constitutional doctrine in the U.S. The Casey decision acknowledges the relationship between reproductive choice and equality, but it does so only as an adjunct to its analysis of liberty, not as a separate, enforceable principle. The ongoing refusal of the Court to recognize pregnancy as a gender‐based classification makes a shift to equality analysis unlikely.
In part as a response to the pitfalls of Roe, reproductive health has emerged as a human rights model for the protection of reproductive choice. Building on international consensus achieved at the International Conference on Population and Development held in 1994, in Cairo, reproductive health offers both strategy and standard for protecting women’s access to abortion. A number of international and regional human rights documents protect women’s health, including reproductive health. As a human rights principle, reproductive health has both normative and political value. The protection of women’s reproductive health is a critical element of women’s autonomy and dignity; rights protected in numerous human rights documents. Reproductive health also offers an analytical framework for moving beyond the polarization of women’s rights and the protection of the unborn. For example, protection of women’s health has been used by the European Court of Human Rights to find state laws regulating abortion in violation of the European Convention, relieving the Court of confronting
Professor of Law, Lewis & Clark Law School. 1 Roe v. Wade, 410 U.S. 113 (1973) 2 Id. at 159. 3 505 U.S. 833 (1992).
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the question of whether abortion is protected under the European Convention. Evolving definitions of reproductive health encompass the right not to suffer discrimination in health care, the right of access to health care, and a positive obligation on states to protect women’s health.
This essay examines how recent U.S. Supreme Court decisions diverge from the trend to protect women’s reproductive choice, including abortion, through enhanced protection of women’s reproductive health. The Court’s decision in Casey and its most recent abortion decision, Gonzalez v. Carhar4t, are notable for weakening constitutional protection for women’s reproductive health. U.S. constitutional protection of the right to choose may still be more generous than the protection provided under many other human rights documents. But the U.S. Supreme Court is contracting the right to choose at a time of increasing international recognition of reproductive health as an integral component of human rights.
The Cairo Programme of Action and the Beijing Platform of Action define reproductive health as “a state of complete, physical, mental and social well‐being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system.”5 Reproductive health includes the “right of men and women to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice….”6 Notably, this right of choice extends only to methods that are “not against the law,” leaving the legality of abortion to the determination of each state. Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) requires states parties to take appropriate measures to eliminate discrimination against women in access to health care, including family planning. Article 16 of CEDAW requires states parties to ensure that men and women have the “same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.”7 Despite the fact these documents do not explicitly include access to abortion as part of reproductive health, they all rest on a similar principle: women’s reproductive rights are human rights. The Cairo and Beijing platforms identify unsafe abortion as a major public health concern, and urge states to take action to address the problem. They stress that where abortion is legal, it should be accessible and safe.
The Protocol on the Rights of Women in Africa, adopted by the African Union in 2003 and entered into force in 2005, offers the most explicit protection of reproductive choice, including abortion, as a human right, the first binding human rights document to do so. The Protocol requires states parties to “take all appropriate measures to…protect the reproductive rights of women by authorizing medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother of the
4 550 U.S. 124 (2007). 5 1994 ICPD Programme of Action, Chapter VII (7.2), U.N. Doc. A/CONF.171/13, (Oct. 18, 1994); Beijing Declaration and Platform for Action, Sect. 94, U.N Doc A/CONF.177/20, (Oct. 17, 1995). 6 Id. 7 CEDAW, Article 16(e).
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life of the mother or the foetus.”8 This protocol offers significant recognition of reproductive health as a human right.
In April, 2008, the Parliamentary Assembly of the Council of Europe adopted Resolution 1607, “Access to Safe and Legal Abortion in Europe,” advising member states to decriminalize abortion and “guarantee women’s effective exercise of their right to access to a safe and legal abortion.”9 The Assembly expressed concern that, even where abortion is legal, “numerous conditions are imposed and restrict the effective access to safe, affordable, acceptable and appropriate abortion services.” These restrictions include requirements for “repeated medical consultations” and extended waiting periods. The Assembly specifically recommended that member states “lift restrictions which hinder, de jure or de facto, access to safe abortion, and, in particular, take the necessary steps to create the appropriate conditions for health, medical and psychological care and offer suitable financial cover.” The central principle of Resolution 1607 is the statement that “the ultimate decision on whether or not to have an abortion should be a matter for the woman.” 10 Resolution 1607 specifically links effective exercise of the right of choice to the protection of reproductive health and the availability of real access to reproductive health services. Although not legally binding, Resolution 1607 is an important affirmation of reproductive rights, and their key components, protection of health and full access to the complete range of reproductive health services, including abortion.
Recent decisions by courts and treaty‐monitoring bodies interpreting international and regional human rights documents show increasing recognition of reproductive health as a human right. In KL v. Peru,11 the Human Rights Committee (HRC) held Peru in violation of its obligations under the International Covenant on Civil and Political Rights (ICCPR) for denying a 17‐year old girl pregnant with an anencephalic fetus access to an abortion authorized under Peruvian law, which allows limited access to abortion where a woman’s life or health is threatened. The HRC found violations of several provisions of the ICCPR, including Article 7 (freedom from torture and cruel, inhuman and degrading treatment) and Article 17 (right to privacy). The HRC, interpreting health broadly to include mental health, found that KL was legally entitled to an abortion and that Peru violated its obligations by failing to ensure access. KL v. Peru is notable both for its emphasis on a broad definition of health and for its finding that denial of right of access to abortion may violate the ICCPR.
The European Court of Human Rights confronted a similar access issue in 2007 in Tysiac v. Poland.12 Polish law authorizes abortion when a pregnancy endangers a woman’s life or health. Tysiac, who suffered from a serious eye condition that could result in blindness from the stress of pregnancy and delivery, was denied the medical certification required to terminate the pregnancy. The European Convention for the Protection of Human Rights and Fundamental
8 Article 14. 2(c), African Women’s Protocol. 9 Council of Europe Parliamentary Assembly, Resolution 1607 on access to safe and legal abortion in Europe, 16 April 2008. 10 Id. 11 U.N. Doc. CCPR/C/85/D/1153/2003 (2005). 12 45 EHRR 42 (2007)
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Freedoms, like the ICCPR, protects privacy and prohibits inhuman and degrading treatment. The Court ducked the issue of whether Article 8, protecting the right of privacy, guarantees a right to legal abortion. The Court stressed that privacy under Article 8 should be broadly interpreted to encompass “physical and social identity” and the “right to personal autonomy.” It also reiterated that even though the Convention does not specifically guarantee a right to health, Article 8 protects a person’s “physical and psychological integrity” and the state is under a positive obligation to secure citizens “their right to effective respect for this integrity.” The Court went on to find that Poland had violated the procedural protections of Article 8 by failing to have in place “any effective mechanisms capable of determining whether the conditions for obtaining a lawful abortion had been met.” In short, where abortion is legal, access must be real and procedures must be in place to ensure access is not arbitrary. The European Court of Human Rights, in several cases, has avoided the issue of whether the Convention protects the right to legal abortion, although that may change with the recent referral of A.B. and C. v. Ireland to the Grand Chamber. Tysiac suggests the Court is far more willing to look at abortion as a health issue.
Several points may be drawn from this brief outline of key documents and decisions addressing reproductive health. Most notably, there is an emerging recognition of reproductive rights in international human rights law. The scope of reproductive rights is evolving; with the exception of the African Protocol, the question of whether reproductive rights include the right to legal abortion is unresolved. However, critical components of reproductive rights have been articulated by courts and treaty‐monitoring bodies, primarily the protection of women’s reproductive health and effective access to reproductive health services, including abortion where abortion is legal.
The above decisions address laws far more restrictive than those considered in recent decisions by the U.S. Supreme Court. Nonetheless, the U.S. decisions evince declining constitutional protection for reproductive health and access to reproductive health care at a time when other courts and human rights documents are emphasizing the importance of these principles.
In Casey, the Court’s shift from strict scrutiny of laws regulating abortion to the undue burden test, invites additional restrictions on abortion and access to abortion services. The undue burden test not only changes the level of scrutiny, it also shifts the burden from the state to the plaintiff, making it more difficult, and costly, for plaintiffs to prevail. The undue burden test, and the opinion in Casey, present particular concerns for women’s access to reproductive health services. The Court has described an undue burden as one that, by purpose or effect, places a substantial obstacle before a woman seeking abortion. Casey overrules prior decisions invalidating 24‐hour waiting periods and restrictive informed consent requirements. The Court upholds Pennsylvania’s 24‐hour waiting period and informed consent procedures, despite evidence that the these restrictions impose economic hardship and emotional stress on women seeking abortions. The Court acknowledged the increased costs and delay imposed by the laws but concluded “a state measure designed to persuade her to
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choose childbirth over abortion will be upheld if reasonably related to that goal.”13 The tension between the Court’s encouragement of laws designed to deter women from abortions and the undue burden standard is problematic. The Court has not articulated a standard for distinguishing permissible laws intended to deter women from abortions from impermissible laws that pose a substantial obstacle. Even more problematic, the Court’s acceptance of laws designed to deter women from choosing abortion is inconsistent with its description of an undue burden as a law that by purpose or effect constitutes a substantial obstacle to the right to choose. The impact of Casey has been to encourage regulations that impede women’s access to reproductive health services in furtherance of the state’s interest in deterring abortions.
Casey marks an additional diminution in the Court’s protection of reproductive health. Under Roe, protection of women’s health was the only justification for regulation of abortion pre‐viability. Casey, in rejecting the Roe trimester approach to evaluating abortion regulation, concluded that one of the most significant flaws in Roe was the Court’s failure to accord proper recognition to the state’s interest in protecting potential life throughout the pregnancy, not just post‐viability. Thus, under Casey, the state’s interest in regulating to protect women’s health will have to compete with measures intended to deter women from choosing abortion to further the state’s interest in protecting potential life.
The warnings that Casey would reduce constitutional protection of women’s reproductive health proved accurate in Gonzales v. Carhart (Carhart II), the Court’s most recent abortion decision. The Court upheld the federal Partial‐Birth Abortion Ban Act of 2003, despite striking down a similar state law only seven years earlier, in Stenberg v. Carhart (Carhart I). In Carhart II, the Court, for the first time, upheld a law restricting abortion that did not include an exception to allow the banned procedure when necessary to protect the health of the woman. Under Roe, all laws restricting abortion had to include exceptions when the life or the health of the woman was at risk. In fact, one of the grounds for finding the state law unconstitutional in Carhart I was its failure to include an exception to protect the health of the woman, even though the state legislature concluded the exception was not necessary. In Carhart II, however, the Court rejected a facial challenge to the law based on the absence of a health exception. The Court found that the legislature need not include a health exception simply because there was “uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health.”14 The Court concluded, “considerations of marginal safety, including the balance of risks, are within the legislative competence,” even if some procedures “have different risks than others.”15 The Court’s willingness to allow legislative bodies to evaluate the need for health exceptions eviscerates one of the key principles of Roe: women’s reproductive health is a constitutional issue, not a legislative one. With this language as a guide, Carhart II is likely to lead to additional erosions in the protection of women’s reproductive health.
13 Casey, at 878. 14 Carhart II at 1638. 15 Id.
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Carhart II further undermines women’s reproductive health and access to health services by accepting a paternalistic, “protective” rationale for the regulation of abortion. The Court finds the ban on certain late‐term abortions may help assure that fewer women have an opportunity to regret their decision to choose abortion. Even though the Court admits it has “no reliable data to measure the phenomenon,” it nonetheless concludes, “some women come to regret their choice to abort the infant life they once created and sustained.”16 The existence of a law banning certain late‐term abortions, the Court opines, will help inform women of the consequences of their choice and “encourage” some women to continue the pregnancy. Thus Carhart II injects an additional rationale for restricting access to abortion.
Casey and Carhart II, in language and in outcome, weaken the constitutional protection of women’s reproductive health that began with Roe. This diminution diverges from the trend in international law to recognize reproductive health as a human right. At the same time, the Court’s recent abortion decisions may in fact place U.S. constitutional protection of the right to choose more in line with abortion law in other countries, where access to abortion typically is more heavily regulated than in the U.S. Nonetheless, even if Casey and Carhart II represent convergence on the regulation of abortion, the Court’s declining protection of reproductive health is likely to reduce further its credibility as a model for preservation of human rights.
16 Carhart II at 1634.
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Is Constitutionalism Bad for Intersectional Feminists?
Beverley Baines Faculty of Law, Queen’s University Kingston, Ontario Canada
ABSTRACT
Being a country that espouses both sex equality and multiculturalism in its entrenched Charter of Rights and Freedoms, Canada has experienced significant tensions between these two values. These tensions should not surprise feminists. In 1998, Susan Muller Okin asked: “Is Multiculturalism Bad for Women?” Her objective was to critique Will Kymlicka’s liberal justification of special group rights for cultural minorities. Claiming these rights “may not be in the best interests of the girls and women of the culture” Okin argued that they should not be granted unless young women (older women being already co-opted!) “are fully represented in negotiations about group rights”. Accordingly, those who share Okin’s views should disapprove of the Canadian Charter because it addresses to multiculturalism without unambiguously ascribing priority to sex equality.
Okin did not lack critics. For instance, Leti Volpp rejected Okin’s approach of positing multiculturalism and feminism as oppositional. Volpp argued that this binary discourse “obscures the forces that actually shape culture, hides what forces beyond culture impact women’s lives, denies that women have agency within patriarchy, and elides the level of violence intrinsic to the United States” (2001: 1185). Her objective was to enhance our understanding of multiculturalism by portraying cultures as not only “patriarchal – not more or less so, but differently patriarchal” but also “characterized by resistance to patriarchy” (2001: 1217). In addition, she sought to “broaden and shift” (2001: 1184) feminist values by challenging feminists to abandon their notion of the “unitary female subject” (2001: 1199) and their “strong desire for innocence” (2001: 1214). Effectively, supporters of Volpp’s argument would also disapprove of the Canadian Charter because it contains no reference to the possibility of collapsing sex equality into multiculturalism, even of only in “particular contexts” (2001: 1127).
Another critic, Madhavi Sunder, argued against assigning priority either to human rights law (including sex equality) or to “religion – and its attendant category, culture” (2003: 1401). First, she condemned human rights law for treating religion “as a sovereign, extralegal jurisdiction”, that is as “natural, irrational, incontestable, and imposed” (2003: 1402). Human rights law wrongly defers to this construction of religion as “other” (2003: 1402), accepting and expecting inequality. “In short, human rights law, not religion, is the problem” (2003: 1403). On the other hand, Sunder also criticized religious and cultural authorities who fail “to imagine religious community on more egalitarian and democratic terms” (2003:1403). Ultimately, however, her objective was constructive. She lauded the women’s human rights activists in Muslim countries who “increasingly refuse to choose between religion and rights and demand
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both” (2003: 1412). I refer to these women as intersectional feminists and ask: in the diaspora, is it possible for them to have both? For example, is Canada’s Charter designed to protect sex equality and multiculturalism simultaneously? Or, is constitutionalism bad for intersectional feminists?
To explore these questions I propose to revisit three studies that I conducted recently. In 2005 I participated in research that analyzed the constitutionality of criminalizing polygamy, in addition to reviewing the consequences of failing to recognize valid foreign actually polygamous marriages (Bailey, 2005). Later, I explored the constitutional justification for proscribing faith-based family arbitrations (Baines, 2009a). Most recently, I examined the constitutional implications of adopting a second guarantee of sex equality to limit the accommodation of cultural differences (Baines, 2009b).
Canada is a federal state and the three controversial laws were enacted by three different governments. The Canadian (national) government had enacted the criminal law prohibiting polygamy almost 120 years ago. The Province of Ontario proscribed faith-based family arbitrations three years ago. Last year Quebec entrenched the second sex equality guarantee in the provincial constitution with the objective of imposing limits on cultural accommodations. All three laws impact on multicultural citizens who are religious believers – specifically but not only Muslims. To date their constitutional arguments have relied primarily on freedom of religion with multiculturalism added for emphasis.
Only the polygamy issue is currently before the courts in a constitutional challenge – one launched not by Muslims but by Christians, specifically members of the Fundamentalist Church of Jesus Christ of the Latter Day Saints, a breakaway sect of the Mormon Church. Since the faith-based family arbitration law proscribes civil enforcement of arbitration awards that are not consistent with secular family law, Jews with Beis Din awards might bring a challenge based on deprivation of a process to which they previously had access, whereas most Muslims (Ismailis aside) never resorted to civil enforcement of arbitration awards.
In each of the foregoing contexts, the challengers would be religious believers. Women who wished to intervene on the ground of sex equality would have to shut up and shelter under the government’s justification for the legislation, viz. polygamy is prohibited to protect women and children; faith-based family arbitrations are proscribed to protect women and children. While sex equality seeking women could not be parties (absent intervener status), in other words, courts would likely hear their arguments, albeit as voiced by governments. In contrast, there is no mechanism that requires judges to hear the arguments, let alone the voices, of intersectional feminists. Although the Supreme Court of Canada frequently proclaims there is no hierarchy of rights, intersectional feminists understand this rhetoric does not extend to not choosing between rights.
Would the situation be any different in Quebec given that the second sex equality provision was adopted to protect women from practices put in place to accommodate cultural differences? The answer is that it depends – on two factors. First: are the practices prohibitive
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or permissive? For instance, are public school teachers prohibited from veiling, or permitted to veil? Are birthing mothers prohibited from demanding a female obstetrician or permitted to have one? Second, who are the women who are entitled to protection under the second sex equality provision – secular feminists (who give priority to sex equality over religious freedom), religious/multicultural feminists (who give priority to religious freedom over sex equality), or intersectional feminists (who give the same priority to both rights, refusing to choose between them)?
In sum, in these studies I concluded that the Canadian (and Quebec) Charter(s) did not protect intersectional feminists. More specifically, Canadian constitutions are not designed to empower intersectional feminists to enter rights conflicts. Intersectional feminists do not wish to choose between their religious and cultural beliefs and their belief in sex equality. Would all written constitutions force this choice upon them? Are there ways to redirect, even subvert if necessary, these constitutions to secure respect and protection for the citizenship of intersectional feminists whether it is in the context of the veil, obstetrics, faith-based family arbitration, polygamy, etc? Is a second sex equality provision the answer, or is this answer more responsive to secular feminists?
REFERENCES
Bailey, Martha; Baines, Beverley; Amani, Bita; and Kaufman, Amy (2005) “Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada” in Angela Campbell et al, Polygamy in Canada: Legal and Social Implications for Women and Children: A Collection of Policy Research Reports (Ottawa: Status of Women Canada).
Baines, Beverley (2009a) “Must Feminists Identify as Secular Citizens: Lessons from Ontario”, in Linda C. McClain and Joanna Grossman (eds) Gendering Equality: Dimensions of Women’s Equal Citizenship (Cambridge University Press).
Baines, Beverley (2009b) “Must Feminists Support Entrenchment of Sex Equality: Lessons from Quebec” in Susan H. Williams (ed) Constituting Equality: Gender Equality and Comparative Constitutional Rights (Cambridge University Press).
Okin, Susan Muller (1999) “Is Multiculturalism Bad for Women” in Joshua Cohen, Michael Howard, and Martha Nussbaum (eds.), Is Multiculturalism Bad for Women? (Princeton University Press).
Sunder, Madhavi (2003) “Piercing the Veil” 112 Yale Law Journal 1399.
Volpp, Leti (2001) “Feminism Versus Multiculturalism” 101 Columbia Law Review 1181.
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The Legal Framework for the Exercise of Fundamental Rights with a Gender Perspective in Costa Rica
Rafael González Ballar Dean of the Law School University of Costa Rica Costa Rica
ABSTRACT
This paper intends to inform the reader the legal framework for the exercise of fundamental rights with a gender perspective in Costa Rica; analyzing at first the recognition of the right of equality at the constitutional level in the Costa Rican legal system. Then, a compilation and presentation of claims of rights to achieve that is now consolidated and legal recognition for women in our country. Finally, we conclude that the maximum constitutional rights with a gender perspective seeks only the operationalization of Article 33 of the Constitution as a reality in the Costa Rican social scenery in which develops the law.
INTRODUCTION
Today, the creation, development and consolidation of constitutional rights in the world is visible as a necessity and as a mean at the same time, having the purpose of fulfilling the goals that have been set forth in the First Generation of Human Rights, based primarily by the principles of the French Revolution, being the recognition of equality for all people the backbone of the rule of law in our days. In Costa Rica, this recognition has been made through Article 33 of the Constitution, which states:
"ARTICLE 33. - Every person is equal before the law and may not practice any discrimination contrary to human dignity" (Constitution of Costa Rica).
In this sense, we see this principle of equality as a constitutionalized law like a maxim, meaning that the state should guarantee equal treatment for all persons without any discrimination. This recognition of equality applies in the exercise and enjoyment of the rights and liberties recognized by the Constitutional States, which have the purpose of consolidation and establishment of systems of personal liberty and social justice, giving respect and implementation of the Universal Declaration of Human Rights. Consequently, the state apparatus is now making efforts to insert in public policies and legislation of general application legal forms which allows the gradual elimination of discrimination in its various aspects and justifications, been the gender or sex one of them.
A. Legal Block against violation of fundamental rights based on gender discrimination. In accordance with the jurisprudence criteria of the Constitutional Supreme Court, this chamber can be seen as the one, who bent the defense and protection of fundamental constitutional rights, and applies the same legal criteria to any right who can be considered as a human right, which its significance and importance are recognized as equal and without any discrimination in its exercise in
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accordance with Article 33 of the Constitution, rights who cannot be resign by the citizens because of the implications of Article 74 of the Constitution itself.
In this regard, Article 74 of the Constitution states:
"ARTICLE 74 .- The rights and benefits to which this section relates may not be waived. His list does not preclude others arising from the Christian principle of social justice and giving the law apply equally to all contributing factors to the production process, and regulated in a law and social work, to seek a permanent policy of national solidarity".
Thus we can see that the Constitutional Supreme Court has made a essential the enjoyment and exercise of fundamental constitutional and human rights without discrimination conditions, the numerals 33 and 74 of the Constitution, recognizing their union rights as a"(...) set of principles and international human rights standards, which are not only superior to ordinary law conferred upon it by Article 7 of the Constitution, but also a direct constitutional protection that almost equals the expressly set forth by the Constitution, under article 48 of the same, (as amended by Act No. 7128 of August 18, 1989), among those rights "(C.S.C.C. 1147-90). Consequently, by law the Court has established a legal block in regard to cases where the alleged violation of the right to equality on grounds of sex discrimination, including rules of both national and international levels, visible as follows:
"The Constitution in Articles 33 and 48 states in this regard:" Article 33.-All persons are equal before the law and no discrimination contrary to human dignity. Article 48.-Every person has the right to appeal habeas corpus to secure his freedom and his personal integrity, and the appeal to maintain or restore the enjoyment of other rights enshrined in this Constitution and the fundamental character of the established international human rights instruments applicable in the Republic. For his part, and what are of interest, the Universal Declaration of Human Rights states: Article 2.-1. Everyone has all the rights and freedoms set forth in this Declaration, without distinction of race, color, sex, language, religion. Article 7.-All are equal before the law and are, without distinction, the right to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Look the same on the American Declaration of the Rights of Man (1948) says: Article II.-Right to equality before the law. All persons are equal before the law and have the rights and duties enshrined in this Declaration without distinction of race, sex, language, creed or any other factor. In the same way the International Covenant on Civil and Political Rights (1966) states: Article 3.- The States Parties to the present Covenant undertake to ensure men and women the equal enjoyment of all civil and political rights set forth in the present Covenant. "Article 26.-All persons are equal before the law and are entitled without any discrimination to equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against any discrimination based on race, color, sex, language, religion, political or otherwise, national or social origin, property, birth or other status. Ultimately the American Convention on Human Rights, "Pact of San José" (1979) provides: Rule 1.-Obligation to Respect Rights 1. The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure their free and full exercise to all persons subject to their jurisdiction without discrimination of race, color, sex, language, religion, political or any other opinion, national or social origin, property, birth or other status. 2. For the purposes of this Convention, every human person. Article 24- Equality before the law. All persons are equal before the law. Consequently, they are entitled without discrimination to equal protection of the law "(C.S.C.C. 3435-92).
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Finally, the trend can be traced in constitutional jurisprudence in the combination of Articles 33 and 74 as a block of constitutional law, enabling citizens to invoke the provisions of Human Rights to protect the exercise and enjoyment of their fundamental constitutional rights, allowing thanks to "the membership of our legal system, with the Christian principle of social justice (Article 74 of the Constitution) makes the political and social system in Costa Rica, can be defined as a rule of law" (C.S.C.C. 1102-95), recognition who made our Constitutional Supreme Court and constitutes a basis for the elimination of racial discrimination still exist in some of the social scenarios for the exercise of fundamental constitutional rights today.
B. Public policies aimed to eradicate discrimination based on sex.
B.1. Creation of the National Women's Institute (INAMU) Since the 70`s Costa Rica had an office that was specializes in women's affairs and family, called the Office of Programs for Women and Families, which was part of the Ministry of Culture, Youth and Sports; this office was established in 1974 with the intention of built an instance that was subsequently able to promote and execute the actions and commitments taken by the country at the World Conference on Women held in Mexico in 1975. Under the years passed, the office became more active having more functions and powers in relation to gender issues, until in 1986 became the National Center for Development of Women and the Family, still forming part of the Ministry in start the initiative, focusing its activities on the development and promotion of national policies in favor of women. A decade later, in 1998 exactly, the Legislative Parliament enacted the Act No. 7801: National Women's Institute Law, which approved the conversion of the current National Center for Women, making it an autonomous and decentralized of the central government, taking power from its own organization, creating the post of Executive Presidency even for the person who carries out as head of the institution. In this Act shall come to set specific goals and responsibilities to the Institute, which develops the current institution and run independently, such as the following:
"Article 3. - Purposes
The Institute has the following purposes:
a) Develop and promote the national policy for gender in equality and equity, in coordination with public institutions that develop programs for women and social organizations. b) Protect the rights of women enshrined in declarations, conventions and treaties such as the Costa Rican legal system, promote gender equality and promote actions to improve the situation of women. c) Coordinate and supervise public institutions to establish and implement national policies, social and human development, as well as sectorial and institutional aspects of national policy for gender equality and equity. d) Promote social, political, cultural and economic status of women and the full enjoyment of their human rights under conditions of equality and equity with men.
ARTICLE 4 .- Competences
To achieve its mission, the Institute will have the following powers:
a) Develop, promote and coordinate the implementation and monitoring of public policies aimed
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to promote equal rights and opportunities between men and women. b) Coordinate the overall national development policies that promote the government, to contain the promotion of equal opportunities between women and men. c) Develop and implement plans, programs and projects of the Institute itself, as it deems necessary to fulfill its purpose. d) Coordinate the activities and organizations established within the Administration, to promote the status of women and gender equity. e) Promote the establishment of ministerial, sectorial and local offices for women, while ensuring and coordinating its operation. f) Develop, coordinate and implement actions that foster the development of the family as a socialization of human rights and the equal opportunities between women and men. g) Provide advice and legal guidance to all state institutions to carry out their activities without discrimination between women and men. h) Ensuring that administrative arrangements are not discriminatory and verifies that respect the rights of women. i) Issue criteria about the bills pending legislation related to gender and status of women and families. j) Promote and facilitate the creation and operation of a fund to promote productive activities and organization of women. k) Assist, when deemed appropriate, in proceedings affecting the rights of women. l) Promote and undertake research to ascertain the status of women, gender equality and the situation of families, and to make proposals for improvement. m) Maintain relations of exchange and cooperation with international agencies engaged in promotion of women, without prejudice to the powers of the executive branch in foreign affairs. n) Promote the activity of associations of women, providing assistance to their organizations to be better for their formation and development”.
The fulfillment of these purposes and functions due to the mission and vision that the Institute has to pursue its functions, in which can be visible that the Institute's mission is to "promote and protect human rights of women to contribute building a just and egalitarian society to ensure gender equity "(INAMU: 2009), reflecting the company as "an institution recognized for its commitment and technical excellence in human rights of women, active supporter of equality, equity and diversity, promoting the empowerment of women, their empowerment and their full enjoyment of human rights and citizens who enjoy credibility, trust and legitimacy with an organizational culture consistent with organizational values"(Id. ). Finally, the Institute aimed to succeed in keeping in constant and permanent commitment to a fair and caring society, respect for equality, gender equity and diversity, the exercise of a democratic, participatory and horizontal, commitment and transparency in the exercise of public service and accountability, technical excellence, teamwork, efficiency and effectiveness, respect for women's autonomy, commitment to women, respect for the rights of and women and men workers, interpersonal relationships based on mutual respect, assertive communication, and commitment to fulfilling the mandate and institutional values in the institution.
C. Regulations issued in order to eradicate discrimination based on sex.
C.1. Ratified International instruments. Initially, we can trace that from the 1970`s Costa Rica ratified The American Convention on Human Rights "Pact of San Jose", which reiterate the principles set forth in the Universal Declaration of Human Rights of December 10th of 1948.
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Thus, the Convention in its Article 1 establishes the obligation of States Parties to respect the rights of persons under the following conditions:
“Article 1. Obligation to Respect Rights.
1. The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. 2. For the purposes of this Convention, "person" means every human being”.
This means that the instrument of ratification in commentary provides an obligation for the state to ensure both, the free and full exercise of fundamental rights of the nation to all people as equals, including the world situation discriminating gender as an obstacle that must be eradicated for the free exercise of fundamental human rights of all women, involving the access to social and symbolic spaces to exercise rights under the same terms as men. Then, our country has ratified a number of conventions and treaties for the claiming of the rights of women, including the following:
• The INTER-AMERICAN CONVENTION ON GRANTING OF CIVIL RIGHTS TO WOMEN and the AMERICAN CONVENTION ON GRANTING OF POLITICAL RIGHTS TO WOMEN. Both endorsed on April 17th of 1951, which reflect the intention of States Parties to recognize women around the American continent the equal enjoyment of civil and political rights. Therefore, there is recognition in terms of equality with respect to the exercise of the First Generation of Human Rights to all American women. • The CONVENTION ON THE POLITICAL RIGHTS OF WOMEN. Ratified on July 25th of 1967, implies a reiteration of the two criteria above, with emphasis on recognition of the equal participation of individuals regardless of their status as man or woman in the political processes of their countries, taking right to participate in the governance of the country directly or through representation of the people to be freely chosen. Furthermore, it recognizes the equality of opportunities for both sexes with respect to entry into the public service of their countries. • The CONVENTION ON THE NATIONALITY OF WOMEN. Ratified on July 17th of 1953, stipulates in its Article 1, that in terms of nationality the States Parties can´t make any distinction based on sex in the fields of law and practice. • The CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN. With its ratification on April 04th of 1986, this convention is the most complete international legal instrument in the recognition of the rights of women and the exercise of those on equal terms with men, including the definition of what acts constitute the discrimination against women, making it the duty of States Parties the following clauses:
“To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle; To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;
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To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise; To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; To repeal all national penal provisions which constitute discrimination against women” (Article 2).
• The INTER-AMERICAN CONVENTION ON THE PREVENTION, PUNISHMENT AND ERADICATION OF VIOLENCE AGAINST WOMEN "CONVENTION OF BELEM DO PARA." Ratified on July 12th of 1995, is a legal instrument which shows the concern of States Parties to violence against women, considering it an affront to the dignity of women that try to reproduce the patterns of inequality between women and men as the historically unequal power relations. Moreover, recalling that this kind of violence transcends class, race, ethnicity, culture, educational level, age and religion which affect any woman regardless of the attributes having a status or social standing, cases in which the government has to enforce the full individual and social development of women, on equal conditions for the recognition, enjoyment, exercise and protection of all human rights and liberties enshrined in regional and international instruments on human rights for women. • The OPTIONAL PROTOCOL TO THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN. Ratified on September 20th of 2001, is the instrument that allows the operationalization of the Convention on the Prevention, Punishment and Eradication of Violence against Women "Convention of Belem do Para", by recognizing the competence of the Committee on the Elimination of Discrimination Against Women to receive and process complaints on the matter.
C.2. Existing national regulations. Finally, at the national level there has been a legislative initiative that proves the commitment and engagement of the Costa Rican State to treaties and international agreements ratified in the field to claim the rights of women. The most important legal instruments at national level in this area are: • The Act of Promoting the Social Equality of Women, entered into force on 08th March of 1990, is the national instrument that provides equal rights in general between men and women, becoming a State's obligation promote and ensure gender equality in political, economic, social and cultural spheres. • The Act on the Punishment of Violence against Women, entered into force in 2007, which aims to "protect the rights of victims of violence and punishing forms of physical, psychological, sexual and property against adult women, such as discrimination based on gender, specifically in relation to a marriage, marriages declared or not in compliance with the obligations assumed by the State to the Convention on the Elimination of All Forms of Discrimination against Women, Law No. 6968 of 2th October of 1984, as well as the Convention on the Prevention, Punishment and Eradication of Violence against Women, Law No. 7499 of 2th May of 1995 "(ARTICLE 1).
Available in its scope as follows:
"Article 2.- Scope
This Act applies where the conduct punishable as a criminal offense, directed against an adult woman, in the context of a relationship of marriage, declared or not. In addition, it
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applies when the victims are women over fifteen years and under eighteen, if they are not a result of the exercise of parental authority ".
• The Act of Creating the National System for the Care and Prevention of Violence against Women and Domestic Violence, bringing into force on 04th of December of 2008, claiming the creation of this system as a meeting point between INAMU, Ministries, decentralized institutions and state organizations related to the subject to discuss, coordinate and evaluate the actions undertaken by these institutions together.
Specifically, the law provides an exhaustive list of the members of the system, which provides:
"Article 4 .- Members of the System
Are members of the National System for the Care and Prevention of Violence against Women and Domestic Violence, the following bodies, institutions and entities:
a) The National Council for the Care and Prevention of Violence against Women and Domestic Violence. b) The Ministry of Education. c) The Ministry of Justice. d) The Ministry of Public Health. e) The Ministry of Culture, Youth and Sports. f) The Ministry of Public Security. g) The Ministry of Labor and Social Security. h) The Ministry of Housing and Human Settlements. i) The Ministry of Planning and Economic Policy. j) The National Social Security System (CCSS). k) The Social Assistance Institute. l) The National Training Institute. m) The National Infancy System (PANI). n) The National Women's Institute. ñ) The National Council of Older Persons. o) The National Council on Rehabilitation and Special Education. p) The Council of the Young Person. q) The University of Costa Rica. r) The National University of Costa Rica. s) The Technological Institute of Costa Rica. t) The National Judicial System. u) The National Network of Local Networks of Care and Prevention of Domestic Violence. v) The private non-governmental organizations. w) The State Distance University. x) The National Family`s Ombudsman”.
CONCLUSION Through the legislative initiative and political will of the country to sign and ratify instruments that allow the exercise and enjoyment of fundamental rights and human rights are guaranteed at the formal operationalization of Article 33 of the Constitution which embodies the principle of equality.
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Showed that the state must not only guarantee access to these formal rights, but also access material through specific public policies to eradicate all forms of discrimination and violence against women in the country. In this regard, as mentioned above, the problem of discrimination and violence based on sex so can only be successful when there is a formal and material access to basic and human rights on an equal footing. Involved, the access procedure, the existence of existing regulatory bodies to explain the problem described above is within the legal system, which then gives a ban on any practice which constitutes a violent exercise and the enjoyment of fundamental rights and Human Rights of women. Consequently, access equipment, based in the existence of public policies aimed at creating and strengthening programs and services platforms to carry out preventive, punitive and interventionist when appropriate, in pursuit of goals and targets aimed at claims of rights with a gender perspective.
BIBLIOGRAPHY
Legislation:
POLITICAL CONSTITUTION OF COSTA RICA ACT OF NATIONAL INSTITUTE OF WOMEN AMERICAN CONVENTION ON HUMAN RIGHTS "PACT OF SAN JOSE" INTER-AMERICAN CONVENTION ON CIVIL RIGHTS TO WOMEN INTER-AMERICAN CONVENTION ON THE GRANTING OF POLITICAL RIGHTS OF WOMEN CONVENTION ON THE POLITICAL RIGHTS OF WOMEN CONVENTION ON THE NATIONALITY OF WOMEN CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN CONVENTION ON THE PREVENTION, PUNISHMENT AND ERADICATION OF VIOLENCE AGAINST WOMEN "CONVENTION OF BELEM DO PARA" OPTIONAL PROTOCOL TO THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN PROMOTION OF EQUALITY OF WOMEN LAW PENALIZATION OF VIOLENCE AGAINST WOMEN LAW CREATION OF THE NATIONAL SYSTEM FOR THE CARE AND PREVENTION OF VIOLENCE AGAINST WOMEN AND DOMESTIC VIOLENCE LAW
Jurisprudence Criteria:
Constitutional Supreme Court Criteria No. 1147-90. Constitutional Supreme Court Criteria No. 3435-92 Constitutional Supreme Court Criteria No. 1102-95
Websites:
National Women's Institute (INAMU): http://www.inamu.go.cr/
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Constitutional Challenges and Argentine Abortion Law
Paola Bergallo Universidad de San Andrés and Universidad de Buenos Aires Argentina
Beginning in the second half of the 1960s several Western countries reformed their abortion laws. In a short period of time, most central democracies relaxed their prohibitive criminal regulations through the implementation of a broad and redefined version of the classic “model of permissions” or through the repeal of criminal law at some point in early pregnancy, the “repeal model.” This wave of liberalization, however, was not echoed in Latin America where the region’s laws on abortion continue to be among the most restrictive of the World. Until today, some Latin American countries still impose a total ban on abortion while others only allow it in a limited set of cases. Latin American debates on reproductive justice and abortion, in particular, have experienced a very slow progress in the last decades of democratization. As in the rest of the region, the Argentine polity persistently avoided considering abortion in the context of the transitional project to foster human rights. In the mid 1990s provincial laws began to mandate establishment of reproductive health programs to provide birth control information, free contraception and sexual education. At the federal level, only in 2002 in the context of a deep social, political and economic crisis, discussion of a reproductive rights law was possible in Congress. Abortion, however, remained outside the new reproductive rights legal framework. Both the right and the left had agreed upon the need to postpone addressing an issue perceived as too sensitive and complex. Some still believe that the subject is too polarizing; others argue that the people or the political situation are not ready or mature to face it; and many feel that the political costs of dealing with the issue will outgrow potential rewards for both camps. In the context of the preclusion of a serious and open dialogue, constitutional discussions of abortion in Argentina are portrayed as trapped between two implausible extremes. On the one side, we find a group of players arguing that the Constitution demands a total or an almost total ban on abortion that, they claim, is actually in the text of our constitutional and criminal law. This view is grounded on an absolute right to life allegedly enshrined in the constitutional text and in the human rights treaties incorporated to it in 1994 which, in turn, support a restrictive reading of the criminalization of abortion. On the other side, the opposing viewpoint, generally ascribed to feminists and liberals, is often described as vindicating an absolute right to abortion that admits no restrictions. I want to argue here that the stalemate that this extended characterization of the Argentine constitutional discussion suggests, first, misrepresents the arguments actually uttered in the public domain by players in the liberalizing camp, and secondly, is based on a flawed understanding by conservative groups of the current criminal rules and the legal alternatives compatible with our constitutional commitments. I also claim, a total ban on abortion as the one predicated by so-called guardians of the right to life is not only an inaccurate description of current abortion law but is plainly at odds with our normative
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constitutional understandings. What is more, under the Argentine Constitution in its post 1994 definition, abortion regulation would only be compatible at minimum with a truly accessible model of permissions as the one currently set forth in the text of the criminal code. It may further be argued that such constitutional understandings demand the repeal of the criminalization of abortion in early pregnancy for which a reform of the criminal code will be needed. It is my final point that these last two claims are, in fact, the actual demands of players in the pro-liberalizing side of the debate. These last two claims, and not other radical and extremist views, are the straightforward demands of liberals, feminists’ and women’s organizations as they have been exposed by the national campaign organized to fight for safe, legal and unpaid abortion.
1. A brief account on Argentine abortion law in the books and in action. Like its Spanish predecessors, the first Argentine criminal code dating from 1887 criminalized abortion in all circumstances and punished it with incarceration from one to three years. The original code also authorized the judge to reduce the sanction when women sought to hide their dishonor. During the first two decades of the following century several modernizing proposals for an entire revision of the code were put forward. A newly fashioned code was finally approved in 1921 with the leadership of the then ruling Radical Party. The criminalization of abortion was not absolute in the modernized code that remains in force to our days. Section 86 embraced what was “in the books” one of the more liberal models of permissions for abortion at the time. The new code penalized abortion during the whole pregnancy but established a scheme of permits in case of risk for the life or the health of the woman and rape. Yet for most of the code’s history the permissible regulation adopted in the 1920s remained almost completely unavailable. Several barriers restricted women’s actual accessibility to Section 86’s permits (Ramos, et al. 2009). Obstacles for accessing the model of permissions included, among others, open challenges to the permits’ constitutionality, uncertainty about their scope in the case of risk for the health of the woman or rape,1 or lack of regulatory initiatives establishing the conditions to access permitted abortions.2 The unavailability of truly accessible services from a geographic and economic point of view as well as the lack of services specially sensitive to the situation of women in vulnerable groups such as adolescents, women with disability or indigenous women, were other of the traditional impediments for accessing the permissions. Also, the medical profession’s demands for judicial authorization to provide de-criminalized abortions and its misuse of conscientious objection in the supply of such services were among the restrictions faced by women seeking Section 86 abortions. As this brief recount of some of the barriers suggests, the day-to-day practice of the model of permissions in Argentina has been and continues to be extremely restrictive, pushing in fact towards a model of absolute banning of abortion far more limitative than what the law in the books demanded for more than eighty years.
1 Judicial decisions and legal scholars’ writings urging the restriction of the interpretation of the permission of abortion in case of risk for the health of the woman to her physical health or limiting access to the permission in case of rape for mentally retarded women were among the limiting constructions of the model of permissions. 2 Public policies or regulations to promote access to the permissions were not designed or implemented until 2007, when a group of extremely simple initiatives in the form of medical protocols were approved in 4 of the 24 provincial jurisdictions.
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In addition, this practically unavailable model of permission cohabited with a fairly loose standard of criminalization of a practice that was known to be well extended.3 Tolerance of the crime is demonstrated, for instance, with data for the City of Buenos Aires which in 2005 officially registered 6545 hospital discharges for post-abortion complications (National Health Departament 2007), 148 cases of abortion reports to the judiciary (Ministerio Público Fiscal 2009); 16 actual trials; and zero convictions.
2. A problematic constitutional argument and the mischaracterization of the contending view. In the introduction I have presented what are often portrayed as or what are believed to be the two prevalent views in Argentine constitutional discussions on abortion. The first viewpoint, reflecting the teachings of the Catholic Church, though not necessarily uttered in a religious tone, asserts that the Argentine Constitution protects the right to life for all persons, that life and personhood begins at conception and that, therefore, unborn persons have a right to life since the moment of conception. This view further contends that the right to life is the only and the primary absolute right protected by the Constitution and that as a result of its absolute character such right prevails when in opposition to any other constitutional right or value. Among followers of this view there are some who are ready to accept an exception to the criminalization of abortion in case of a severe danger for the life of the woman. Others, however, reject even the possibility of this exception. Those within the former group who accept that a woman could exceptionally have an abortion when her life is at risk due to the pregnancy and should not be punished, frequently believe that from this does not follow that access to the permitted abortion should be guaranteed or regulated by the state. They assert that non-punishable cases do not imply the permission to commit the crime and that therefore, government should not regulate how to access abortion services for such non-punishable abortions. Unlike this last group, those rejecting the possibility of any exemption to the blanket prohibition on abortion consider that all Section 86 permissions are unconstitutional and should remain inaccessible to women under all circumstances. Supporters of these two extremely restrictive views ground them textually on the implicit protection of the right to life in Section 33 of the Constitution, and in Congress’ mandate to pass laws for the special protection of children since the time of the pregnancy established in Section 75.23. They also appeal to the provisions of Section 4.1. of the Inter- American Convention on Human Rights that asserts that “every person has the right to have his life respected” and that it “shall be protected by law and, in general, from the moment of conception,” and of the Convention of the Right of the Child. From a moral point of view, the
3 A recent study estimated that approximately 450,000 abortions are performed annually in the country (CEDES 2007) at a rate of almost one abortion per every two births (0.64). Also, maternal mortality records for the last twenty years consistently show unsafe abortions as the primary cause of maternal deaths (Ramos, et al. 2009), providing for a third of the total maternal deaths per year. In 2007 the maternal mortality rate was of 44/100.000 (National Health Department 2008), a rate higher than that of other countries of the region with comparable development indices. That year maternal deaths reached 306 women, out of which 74 died from complications related to abortion. Finally, this picture can be completed with official numbers for national patient discharge rates showing in 2005 alone, 68,869 women were discharged from the public health system following complications of abortion (National Health Department 2008).
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argument assumes what Dworkin calls a derivative objection to abortion because it “presupposes and is derived from rights and interests that it assumes all human beings, including fetuses, have” (Dworkin 1994, 11). According to this interpretation, the current model of permissions of Section 86 should be repealed in order to reflect the total ban on abortion mandated by the Constitution. This perspective is often normatively articulated by important and well respected actors including the hierarchies of the Catholic Church or the editorials of one of the two main national newspapers. But this view is also uttered as the best descriptor of valid and mandatory Argentine criminal law by a majority of the players in public debates including politicians, health professionals and their professional associations, legal actors and legal scholars, and many people in the general public. Surveys of doctors and public opinion reveal that people believe that a total ban on abortion stems from the text of the criminal code and they remain ignorant or unclear about the extent of the model of permissions actually in place at least in the text (Gogna, et al. 2002). Furthermore, this is the view expressed in the Supreme Court decision in Portal de Belen, the decision that in 2002 banned emergency contraception considered an abortifacent in violation of the absolute right to life of the pre-implanted embryo. In contrast, the view opposing this perspective is often characterized as demanding the repeal of the criminalization of abortion throughout the complete pregnancy. This is not exactly a view voiced by any recognizable actor representing the liberalizing camp. Neither the majority of feminists nor other pro-liberalization players have clearly articulated such a demand in a public forum. Moreover, the larger national feminist initiative organized as the Campaña Nacional por el Derecho al Aborto Legal, Seguro y Gratutio (the Campaña) [National Campaign for Legal, Safe and Unpaid Abortion], the venture epitomizing the most liberal demands on the discussion, has filed with Congress a draft bill vindicating the repeal of criminal law in the first trimester and accepting a progressively restrictive model of permissions for the remaining of the pregnancy when abortion would still be criminalized. Several other recognizable actors with public voices within this liberalizing camp including members of national or provincial legislatures and public officers are exclusively demanding the implementation of the model of permissions and the removal of the barriers hindering access to it. Both claims for the implementation of rules and policies to guarantee access to Section 86 abortions and those urging for the repeal of criminalization in early pregnancy ground their views in the values of equality, liberty and dignity enshrined in the Argentine Constitution and reinforced by the commitments expressed in the 1994 amendments. Let me now restate my merely descriptive first point here. Traditional characterizations of a polarized debate are mistaken because the picture of two dichotomous and extremist contending views between right to life defenders and radical views of women’s self-ownership as demanding the total abandonment of criminalization are simply not representative of two existing voices and claims expressed in the public domain. The description of the liberal side of the discussion as an extremist perspective is part of the success of conservative groups’ fight for avoiding upfront confrontation of abortion in a society that, as opinion polls suggests (M. Petracci 2007), seems ready to support some liberalizing initiatives. Far from standing for the extreme vindications generally ascribed to them, the liberal side of the contention claims instead a two tier argument. First, pro-liberalization actors, feminists among them, demand that access to the 1922 permissions cease to be restricted and
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that availability of such permissions be fostered through regulatory initiatives at the federal, provincial and municipal levels. This is also the claim that women’s organizations have posed in several petitions to governmental authorities and congressional members, and it is also the vindication they have taken to international forums such as the CEDAW Committee or the Human Rights Committee in the recently admitted LMR case. Secondly, some though not all actors in this liberalizing camp also urge congressional reform of the criminal code on the grounds that the use of criminal law in early pregnancy is incompatible with post 1994 constitutional undertakings.
3. Opposing constitutional arguments: ruling out supported but implausible grounds in favor of restrictive abortion laws. My argument also claims that the characterization of the discussion confronting the two views described above is normatively mistaken as the absolute right to life-based arguments cannot survive constitutional scrutiny. This is so because the conservative extreme side, the one actually articulated in public debates, in favor of a total ban on abortion grounded in the constitutional protection of an absolute right to life not only objects or ignores the current permissible model of abortion regulation established in the criminal code since 1922, but it is also based on an implausible description of the constitutional protection of the right to life as I explain below. Once we show how an over-polarized portray of contending views misrepresents the actual positions of the players, it is necessary to find out which are the best constitutional grounds for regulating abortion in Argentina. Does the Argentine Constitution demand a total ban or the values and rights protected by it are only compatible with a more permissible alternative? My point here is that the answer lays in the second assertion. Indeed, I argue that Argentine constitutional norms and values require, at minimum, taking the steps necessary to promote the actual enforceability of the current liberal model of permissions of the criminal code. I also understand that, especially since the 1994 constitutional reform, Argentine constitutional norms and values further demand the repeal of criminalization of abortion in early pregnancy until a point to be determined by Congress and that could be fixed within the first and the second trimester depending on the legally accepted point of viability. That the Argentine Constitution does not defend an absolute right to life seems too elementary a claim to defend here. Yet this would be necessary vis a vis a local Argentine audience to whom one may simply show that descriptively Argentine law, as a majority of comparative constitutional systems, only protects life gradually. This follows, for instance, from the regulation of the legitimate defense, from the different punishment applied to abortion and infanticide or from the absence of criminal provisions to sanction intentional injuries to the fetus (Ferrante 2008). Despite pro-lifers understandings, Argentine constitutional law does not protect any right in absolute terms. Neither does the Constitution enshrine the perspective of any particular religious credo on the sacred nature of life and the existence of an absolute right to life. On the contrary, the Constitution assumes that the rights and values protected have the potential to enter in infinite instances of conflict requiring complex balancing operations that are the core of daily constitutional interpretation. The model of permissions in the criminal code is actually the result of the recognition of a series of instances of the conflict between the interest in the protection of fetal life that is reflected by the criminalization of abortion and the right to life of
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the woman, her right to health, and her right to dignity. As the 1922 legislators implicitly identified, the life, health and dignity of the woman are protected by permitting abortions in case of risk for the life or the health of the woman or in case of rape. Moreover, today the duty to protect these rights when conflicting in the interest in the protection of fetal life also finds textual support in the specific constitutional commitments of the Constitution in 1994 and in the human rights treaties incorporated to it. I am thinking in the congressional mandate to promote sex equality as enshrined in Sections 75.2 and 75.23 of the constitutional text; the duty to protect the right to health broadly construed in an integral as provided for in International Covenant on Social Economic and Cultural Rights (ICSEC); and the specification of the rights of woman to decide when to bear or not bear children stemming from the provisions of the Convention of the Elimination of All Forms of Discrimination against Women (CEDAW). The pledge to these values and rights further validated in the precedents of our courts demands, I argue, the urgent removal of all the existing barriers impeding access to the model of permissions of the criminal code. It further requires assessing the constitutionality of the use of criminal law in early pregnancy and its compatibility with the constitutional protection of equality, liberty and dignity. My view is that the current extension of criminalization to early pregnancy would not hold if we take seriously our constitutional commitments to substantive equality of opportunity, autonomy and dignity not only as expressed in the Constitution text but also as they stand protected in the human rights treaties that also express the right- protective nature of our constitutional program as set forth in 1994. Uncovering the problems of the mischaracterization of a polarized debate framed in descriptively or normatively implausible terms becomes central when appeals to such polarization are too often used to postpone an upfront discussion of the constitutional treatment of abortion. Showing the flaws of the arguments uttered by contenders on the discussion is also important when they are uncritically embraced by so many among us. This is, however, only a first step towards a discussion that a society that claims to have a truly egalitarian project could not continue to avoid or defer.
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References
Dworkin, Ronald. Life Dominion's. New York: Vintage Books, 1994. Ferrante, M. «Sobre la permisividad del derecho penal argentino en casos de aborto.» Unpublished manuscript on file with the author., 2008. Gogna, M, M Romero, S Ramos, and M and Szulik, D. Petracci. "Abortion in a restrictive legal context: the views of obstetrician-gynaecologists in Buenos Aires, Argentina." Reproductive Health Matters 19 (2002): 128-37. Lavrin, Asunción. Sexuality and marriage in colonial Latin America. Lincoln: Nebraska University Press., 1989. Ministerio Público Fiscal, Estadísticas. Buenos Aires, 2009. National Health Departament. «Basic information. Health Information and Statistics Office.» Buenos Aires, 2007. Petracci, M. Opinión pública sobre la interrupción voluntaria del embarazo y despenalización del aborto en la Argentina y América Latina. Buenos Aires: CEDES/FEIM/IPPF, 2007. Ramos, et al. «El acceso al aborto permitido por la ley: un tema pendiente de la política de derechos humanos en Argentina.» En Derechos Humanos en Argentina. Informe 2008., de Centro de Estudios Legales y Sociales (CELS). Buenos Aires: Siglo XXI, 2009.
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Violence against Women, Gender Equality and the Brazilian Constitution - Draft Paper -
Marcia Nina Bernardes1 Pontifícia Universidade Católica do Rio de Janeiro – PUC-Rio Brazil
1. Introduction: An evaluation of the twenty-year experience since transition from authoritarian rule in Brazil is ambivalent. Despite many undeniable achievements, the new democratic institutions set up in the country by the 1988 Federal Constitution, have not been able so far to produce the egalitarian effects implied in the very idea of democracy. Regarding the protecion of human rights, in general, and women’s rights, in particular, the 1988 Constitution represents an evident achievement when compared to the previous Brazilian constitutions. However, despite recent progress towards gender equality, there remains in the country a large disparity between women and men’s capacity to enjoy constitutional freedoms . As an example, although women’s participation in the market force has increased recently, they are still highly underrepresented in decision-making positions in both private and public sectors.2 Women’s avarage earnings are about 69.3% of men’s earnings for the same jobs.3 Women’s vulnerability increases the data is disagregated taking into account other variables such as race, social class and the geographic localization within the country.4 In this context, an investigation into the causes of inequality and discrimination becomes of paramout importance as a matter of justice. Due to Brazilian peculiar political and economic history, the dominant thinking tends to reduce the causes of all forms of inequality and discrimination in the country to a problem of concentration of wealth and class stratification. However, different civil society organizations and social movements have struggled for at least the past 30 years against this dominant view and have claimed that there is something distinct to discrimination based on gender that cannot be reduced to a class problem. This paper aims at examining gender issues in Brazil against the backdrop of the process of democratization in the country as well as the transnational strategies used by the feminist movement in Brasil to have their voices heard domestically. More especifically, I intend to consider the implication of the Law against Domestic Violence and Violence Within the Family (law 11.340), the so-called Maria da Penha Law, enacted in 2006, to the legal order and to the processes of democratization and social inclusion in Brazil. This statute was enacted, to a great
1 Professor of Law (Pontifícia Universidade Católica do Rio de Janeiro – PUC-Rio). JSD (NYU’06). LL.M (NYU’01). Master of Laws (PUC-Rio’00) 2 Ministry of Labor and Employment (Ministério do Trabalho e Emprego, hereiafter MTE). Annual Report on Social Information (Relação Anual das Informações Sociais, hereinafter RAIS), 2000 and 2001. 3 Brazilian Institute of Geography and Statistics (Instituto Brasileiro de Geografia e Estatística, hereinafter IBGE).Annual Report 2004. This discrepancy is higher between rural women and men. 4 Rural women, for instance, represent only 12.6 of those benefited by land reform plans, while men are 86% beneficiaries of adjudicated land, according to the National Land Reform Institute (Instituto Nacional de Colonização e Reforma Agrária, hereinafter INCRA).
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extent, as a response by the Brazilian Government to recommendations made by the Inter- American Comission of Human Rigts (IACHR) in a case on domestic violence against Brazil (the Maria da Penha Case). In fact, violence against women is a serious problem in Brazil, but before Maria da Penha Law, there was no specific statute or any other kind of regulation dealing with the issue of violence against women in the country. According to Fundação Perseu Abramo, every 15 seconds a women is beaten by a man in the country, 16% of Brazilian women have suffered some kind of physical violence and 8% have already been threatened with firearms. In 53% to 70% of the registered cases, the offender is the husband or partner. Maria da Penha became the personification of domestic violence in the country after she was made paralytic by her husband and her case was taken to the IACHR due to an unjustifiable delay of the Brazilian Judiciary in deciding the case. Contrary to those who argue its inconstitucionality on grounds that it violates the non- discrimination and the gender equality principles, present in Article 5, I, of the 1988 Constitution,5 to the extent that it creates a special protection to women, my argument is that this piece of legislation not only embodies a better understanding of gender equality, but it also gives the best meaning available to the special protection clause, present in article 226, paragraph 8 of the 1988 Constitution.6 In fact, the very absence of a specific regulation constitutes a Constitucional violation, given that Brazil ratified both the CEDAW and its Protocol, as well as the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (hereinafter, the Belem do Pará Convention) and that, according to a recent decision by the STF, these treaties have a quasi-constitutional nature, or a supra-legal status, using the Brazilian Constitutional Court’s (Supremo Tribunal Federal, hereinafter STF) terminology.7 These treaties establish that violence against women is a form of discrimination and, thus, should be eradicated. The U.N. Committee on Elimination of Discrimination Against
5 Article 5. All persons are equal before the law, without any distinction whatsoever, Brazilians and foreigners residing in the country being ensured of inviolability of the right to life, to liberty, to equality, to security and to property, on the following terms: I. men and women have equal rights and duties under the terms of this Constitution; 6 Article 226. The family, which is the foundation of society, shall enjoy special protection from the State. Paragraph 8 - The State shall ensure assistance to the family in the person of each of its members, creating mechanisms to suppress violence within the family. 7 Article 5, paragraph 2 of the Constitution reads: « The rights and guarantees expressed in this Constitution do not exclude others deriving from the regime and from the principles adopted by it, or from the international treaties in which the Federative Republic of Brazil is a party . » There was a long discussion on what status these treaties acquire in the domestic legal order after they have been ratified, considering that non-human rights treaties have been long established to be on a infra-constitutional level and, therefore, can be changed by any other domestic statute. Constitutional amendment 45, of 2004 (Emenda Constitucional 45, hereinafter EC 45/04), provides that if a human right treaty is internally aproved by a qualified quorum in Congress, it acquires a constitutional nature. Nonetheless, the amendment is not clear on the nature of human rights treaties that were approved in Congress but did not reach this qualified quorum. In December 3rd, 2008, in a very innovative decision, the STF held that human rights treaties which have not been aproved via a qualified quorum, as well as those approved before this rule was introduced by EC 45/04, have a ‘supra-legal’ status and, therefore, cannot be changed by domestic law, though they cannot change the constitution either. However, I agree with those who claim that this distinction between a supra-legal and a constitucional nature of human rights treaties lacks any practical meaning.
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Women, in its General Reccomendation n.19, paragraph 11, notes that “the underlying consequences of these forms of gender-based violence help to maintain women in subordinate roles and contribute to the low level of political participation and to their lower level of education, skills and work opportunities.” The preamble of the Belem do Pará Convention says “that violence against women is an offense against human dignity and a manifestation of the historically unequal power relations between women and men” and that “the elimination of violence against women is essential for their individual and social development and their full and equal participation in all walks of life.” I also contend that the Maria da Penha Law is legitimate based on a interpretation of the gender equality and non-discrimination principles informed by Nancy Fraser’s principle of parity of participation. Firstly, the statute restaures some sense of gender parity because it was enacted after a very intense debate, with the participation of key actors in the Brazilian feminist movement. Secondly, it promotes parity because it addresses the problem of violence based on gender, which undeniably prevents women from participating as peers in every aspect of the social life. Violence based on gender is a byproduct of women’s oppression and it also perpetuates the discrimination cycle. In the next section, I briefly introduce Nancy Fraser’s principle, which is related to the idea of non-discrimination. Then, I argue that violence against women is a form of discrimination. Finally, I present the discussion currently in Brazil about the Maria da Penha Law, its innovations to the legal order and the discussions revolving around the principles of non-discrimination and gender equality.
2. Parity of Participation, Discrimination and Domestic Violence The discussion about the nature of discrimination against women and also the relationship between gender and other forms of unequal treatment, such as the one originated from class structure is a fundamental one. What is the best conceptual apparatus to understand inequality? Is social class the defining criterion of inequality and discrimination? Is social status (and not class) a more appropriate concept to measure inequality? Are there forms of discrimination which are made invisible by class stratification? Are claims of justice based on class stratification and claims of justice based on status reconcilable? The answers to these questions have direct implications in the kind of law and public policies one would demand from the state: tax policies, affirmative action policies and etc. In this paper, however, I will not address these important questions and rely on Nancy Fraser’s principle of parity of participation as the most adequate principle to discuss matters of justice in stratified societies (i.e. those whose “basic institutions generate unequal social groups in structural relations of subordination and domination”).8 According to her, parity of participation makes it possible to reconcile the two dimensions of justice in contemporary societies: the demands for identity recognition and the demands for wealth redistribution.9 Fraser asserts that both dimensions ― status and class ― are constitutive of modern pluralist
8 Nancy Fraser, Rethinking the Public Sphere, 122. 9 The first set of demands is of a Hegelian ancestry, presupposes the notion of “status” as a measure of exclusion, and understands the recognition of the differences among the various identities as vital for the correct formation of one’s subjectivity. The second set has a Kantian and Marxian origin, and sees unequal social class structure as the source of injustice; social equality is their most fundamental value.
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societies. One dimension cannot be reduced to the other, although they are not incommensurable. These two types of justice claims, according to her, lie in the realm of morality (as opposed to that of ethics); they both result in treating certain groups or individuals as less than peers in society.10 This principle seems very appropriate to understand the feminist movement because it integrates questions related to social stratification and fragmentation – so evident in Brazil – to questions regarding patriarchic societies. In fact, social inequality associated to patriarchy has a disproportionate impact in women’s lives. In a closer look, we will see that every women’s groups demand has a recognition as well as a redistribution component to it. In terms of recognition, the elimination of domestic violence, for instance, implies acknowleging the fact that violence against women has pecualirities that can only be grasped if we understand patriarchic structures and women’s inferiority within it. In terms of redistribution, it also implies acknowleging the fact that, because of the subordinated role attibuted to women in society, she will not be able to escape from a situation of violence unless there are some redistributional remedies allowing for at least her economic autonomy from the aggressor. In addition to the repressive measures against the offender, it implies educational measures to change cultural patterns, health care measures, child care services and many other measures which lie somewhere between the recognition and the redistribution dimensions. The intricate relatioship between recognition and redistribution is also highlighted by the Committee on the Elimination of Discrimination Against Women in it General Reccommendation n.19. In paragraphs 15 and 16, it states that poverty and unemployment increase the opportunities for traficking in women and force many women into prostitution. These practices make women even more vulnerable and put them at special risk of violence. In Fraser’s account, another crucial aspect of the participation parity is that it is to be applied dialogically. To treat women as peers means that they should be seen as agents of their own emancipation and, in this sense, norms and policies which promote participation parity among individuals are justified. Fraser conceives participation parity as a principle of a “democratic justice,” one which, according to her, avoids the “authoritarian” alternative of a philosopher-king, as well as the “populist” option of letting the misrecognized groups, or the injusticed groups, alone determine if and how they have been treated as less than peers.11 Maria da Penha Law meets these criteria. On the one hand, violence against women is a direct result of women’s subordination at the same time that it impairs the enjoyment by women of human rights, aggravating inequality. Thus, policies for the eradication of violence against women are fundamental measures towards parity of participation. On the other hand, the statute can be considered the most most democratic piece of legislation we had since the Constitution itself, due to the great participation in its drafting and in its enactment of women organizations, of experts and of authorities from different governmental bodies of different levels of the federation.
3. Maria da Penha Law and the 1988 Federal Constitution: a protection or a violation of the non-discrimination and gender-equality principles?
10 Nancy Fraser and AXEL HONNETH. REDISTRIBUTION OR RECOGNITION: A PHILOSOPHICAL EXCHANGE (Verso 2003). 11 Nancy Fraser and AXEL HONNETH. REDISTRIBUTION OR RECOGNITION: A PHILOSOPHICAL EXCHANGE (Verso 2003).
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Although the issue of violence against women is of crucial importance to the effectiveness of human right, as established by the CEDAW and the Belem do Pará Convention, there are no specific provisions about this issue in 1988 Federal Constitution . The only relevant provisions are art. 5 (non-discrimination principle), art.5.1 (gender equality), art 5 paragraph 2 (human rights treaties should be added to the constitutional rights), and art 226.8 (special protection to family members)12. Before 2006, incidents of domestic violence in Brasil were considered to be a misdemeanor, regulated by the Law 9.099/95, which requires the victim’s consent for the criminal persecution, convicts deffendants to a maximun of two-year detention time, and allows for alternative penalties which are usually the donation of a certains amount of food supplies to charity. When applied to violence against women cases, this statute proved to be very ineffective. While in most cases of violence against men, the offender is an unknown person, in the most situations of violence against women the victim is forced to live very closely to the offender, and usually depends economically on him. Considering that the offender, even if convicted, would stay in jail for a very short time, many women who are victims of violence would prefer to withdraw their complaints or not go to the police at all. Despite the political mobilization around the drafting of the Maria da Penha law and the celebration of its enactment as a great progress in the country, after it entered into force the statute has been frequently challenged by lawyers and judges. One of these challenges relates to the discussion on the excessive criminalization of social relations. From a critical criminology point of view, the statute is criticized for having severed the penalties imposed to the accused, by increasing detention time and prohibiting alternative penalties. Although this is an important controversy, I will not address it here and, instead, I will focus on two arguments against the statute based on the non-discrimination principle. The first argument is that a special protection to women against violence violates the non-discrimination principle and, therefore, the statute is inconstitutional and void.13 The second argument is that special protection to women against violence violates the non-discrimination principle and, therefore, the statute should also be applied by analogy to men who are victims of domestic violence.14 Most cases are still pending before lower courts, few of them have reached State Appelate Courts, but none has reached the STF yet.15 I believe ,the Maria da Pena Law is constitutional when interpreted in conjunction with the relevant international instruments and with the Federal Constitution, art. 226, paragraph 8 - “The State shall ensure assistance to the family in the person of each of its members, creating mechanisms to suppress violence within the family.” If we recall the principle of participation parity to interpret the meaning of equality in complex societies, the fact that the there is a different individuals are treated differently does not correspond automaticaly to an injustice. If
12 See footnotes 5, 6 and 7. 13 See Recurso em Sentido Estrito -2007.023422-4/0000-00 (TJ/MS), See ação ordinária 222.942-8/06 (Sete Lagoas/MG). 14 See Negative Conflict of Jurisdiction nº 1.0000.07.458416-0/000 (TJ/MG), ação ordinária 1074/2008 (Juizado Especial Criminal Unificado de Cuiabá/ MT), Restraining Order nº 017.09.001138- 0 (Dionísio Cerqueira/ SC). 15 It should be noted that in Brazil the principle of stare decisis does not apply, unless in very exceptional situations, and cases are only binding upon the parties. Different chambers of the same State Court may hold different understandings of the same legal issue and lower courts may also diverge.
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fact, participatory parity requires that the special situation an individual or a group occupy in society be taken into account when designing public policies. The argument that the protection granted by Maria da Penha Law should be extended by analogy to men who are victims of domestic violence, however, recquires a closer look. If all the requirements established by law are there, and taking into account the principle of gender equality, it seems unreasonable, at least on the surface, to deny to men the legal protection otherwise granted to women who are specially vulnerable to violence due to her family or domestic relation to the offender. However, feminists reply that such analogy is not perfect. The fact that the alleged victim is a man is very relevant in patriarchic societies. Men and women are not in comparable situations, given that only women carry the inferiority stigma and, therefore, face a greater challenge when trying to leave a violent environment. Men who are victims of violence are not left in a legal vacuum, they are protected by other criminal statutes which, however, have not been effective to protect women. In fact, because the challenge is so great, women need a safe and receptive environment and a specially trained staff to have the courage to make a complaint. Due to these reasons, Maria da Penha Law created new courtrooms, which are equipped with multidisciplinary teams and where women can find counselling, childcare services, and social workers, in addition to law enforcement and judicial authorities. The understanding of the peculiarities of this type of violence and of the need of this special services is very new and still deficient in most parts of Brazil. The application of Maria da Penha Law to men who are victims of domestic violence may be detrimental to the goal of building such safe and receptive environment to women. Moreover, to allow the Maria da Penha Law to be extended to men may jeopardize the symbolic weight it carries as a victory over patriarchic structures of women subordination and overlook the fact that violence against women is not just any other type of violence, but a form of discrimination against women .
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When Constitutional Citizenship Diminishes the Political Power of Women – A Case Study of Yap
Kathleen M. Burch Associate Professor Atlanta’s John Marshall Law School United States
From the emergence of the first constitutional democracies in western Europe and the United States, those who have been excluded from the nation-making process, particularly women and people of color, have been fighting for inclusion in the political process. The fight for inclusion has usually been defined as the fight for voting rights. The right to vote is essential to participation in the political processes of constitutional democracies. The determination of who can vote or the process for determining who can vote, and thus, who can participate in the political process, is usually defined in a country’s constitution. Constitutional citizenship is the identification of which individuals can participate in a country’s political process.
In many developed constitutional democracies, including the United States, it is assumed that the right to participate in the political process enables an individual to protect their constitutional guarantees and to shape public policy. This assumption has developed into a theory of constitutional interpretation often referred to as the representation re-enforcement doctrine. The representation re-enforcement doctrine is used by courts as a means to both address the complaint of the constitutional violation and to limit the role of the court in defining positive constitutional rights. In other words, the court before which a constitutional issue is pending will first look to see if the individual bringing the complaint had a voice in the political process. If the individual did not have a voice in the political process, the court will address the process question, issuing a ruling which is intended to create opportunity for the individual to participate in the political process. The court will not address the underlying positive constitutional right issue because now that the political process has been fixed, the individual should be able to protect her positive right through the political process.
The representation re-enforcement doctrine is a particularly useful tool for courts in countries where separation of powers issues predominate. Courts can appear to be addressing constitutional concerns without actually defining constitutional rights beyond the now well- accepted principal of one man, one vote. By not addressing the substantive constitutional issue, courts are leaving the process of defining constitutional rights to the political branches of government – the executive and legislative branches. When a country’s constitution clearly places fiscal decisions with the elected branches of government and the result of defining the constitutional right is to create a financial burden on the government, the court may well not have the power to define the parameters of the constitutional right. But, where money is not at issue and defining the constitutional right will not create a financial burden on the government, the court may be shirking its duties when it fails to address the substantive constitutional issue. Moreover, when a constitutional court fails to address the underlying
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substantive constitutional issue, the court fails to recognize that sometimes fixing the process is not sufficient to protect the constitutional guarantee at issue.
While the representation re-enforcement doctrine may be useful in established democracies whose constitutional guarantees focus on individual rights which are well-defined, it may not be an appropriate or useful doctrine in emerging democracies whose prior political systems included concepts of shared or communal political power. When emerging democracies adopt constitutional democracies which include the concept of one man, one vote, the country is choosing an individual modality over a communal modality. In countries where the prior political system included concepts of community consensus and where political power was exercised by groups and not individuals, the adoption of a constitutional democracy based upon individual voting rights will disrupt the prior political structure and thus, the prior distribution of political power. In communities where women exercised political power as a group through consensus building, the disruption of the prior political structure can result in a diminution of the political power women under the constitutional democracy.
A case study: Yap, Federated States of Micronesia1
On paper, the women of the Federated States of Micronesia (FSM), including the women of Yap, began their lives as constitutional citizens of a country with political and individual rights that women in many other developing countries may not enjoy. The FSM Constitution and the Yap State Constitution2 grant suffrage to all citizens, including women, 18 years and older. Neither the FSM Constitution nor the Yap State Constitution prohibits women from holding public office. Moreover, both the FSM Constitution and the Yap State Constitution guarantee women equal protection of the law. The FSM and Yap State adopted constitutional guarantees as guaranteed by the U.S. Constitution and interpreted by the U.S. Supreme Court. These constitutional guarantees, however, have not been sufficient to protect women’s rights. Although Yapese women can and do vote, they have failed to maintain the political position in society that their mothers and grandmothers held.
Yap is still known as the most traditional of the Micronesian islands. The Yapese traditional political system continues to co-exist with the constitutional democracy, sometimes as a parallel system and sometimes intertwined with the constitutional institutions. The traditional system continues to control traditional issues, leaving non-traditional issues to the government. The demarcation of jurisdiction between the traditional system and the government has never been clearly defined. Moreover, both the FSM and Yap Constitutions recognize the importance of traditional leaders and require the courts to interpret statutes and decide cases consistent with Micronesian custom and tradition.3 Under the Yap Constitution,
1 Yap, a group of islands, is one of the four states of the Federated States of Micronesia. The islands of the Federated States of Micronesia were part of the Trust Territories of the Pacific Islands, administered by the United States as Trustee from the surrender of Japan in World War II until 1982. 2 The FSM Constitution and Yap State Constitution are available on the FSM’s Legal Information System website located at http://www.fsmlaw.org/ (last visited on Jul. 24, 2009). 3 Most custom and tradition is not written.
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the Council of Pilung (council of traditional chiefs) operates as an unelected fourth branch of government which to date has not had any women members.4
To understand how the current constitutional structure has eroded women’s political power, one must understand some of the basics of the Yapese traditional system. At first glance it may well appear to an outsider that Yapese women did not have much power under the traditional system. But, once the intricacies of the system are understood, especially the importance of the control of land, it becomes apparent that Yapese women did, in fact, have and exercise political power.
The Land and Women’s Control of It
Land is central to Yapese custom and tradition. That which is scarce becomes more valuable. Nothing is more scarce in Yap than land. Land not only denotes wealth, but identifies one’s specific place in Yapese society.
Every piece of land holds a name. With each piece of land runs rights and obligations within Yapese custom and tradition. The rights and obligations belong to the land. An individual’s Yapese name comes from the land. The name denotes the child’s relationship with other members of the clan. It identifies from whom the child can seek assistance and protection. It identifies those individuals that the child must assist and care for within the clan. The name also identifies those individuals for whom the child will be responsible.
Every male child is given the name of a piece of property which belongs to his family. The male name identifies the child’s social position, identifies the child’s obligations to the village, to his family, and to others, and identifies the child’s rights or privileges. Every female child is given the name of one who has worked the land which belongs to her family. The female name also identifies the land over which the woman has right of control, i.e. the land over which the woman is caretaker. Both male and female names indicate the individual’s position within Yapese society including the family/clan to which the individual belongs.
Under the traditional system, the land was believed to be held in something akin to a trust for future generations. The land’s current namesake was only a temporary guardian of the land and was required to maintain the land such that it could sustain future generations. Land was not, and still is not, freely alienable. One who does not fulfill their obligations to the land and thus, to the community can have their name taken away, losing their position within Yapese society.
All traditional positions, including political positions, ran with the land. It is the piece of land which is the pilung or chief. The individual is privileged to carry the name and care for the land and, in return, must fulfill the obligations which run with the land.
Under Yapese custom and tradition, the power to give and the power to take away a person’s name is the power to designate a person’s place in society, including political position.
4 Although eligible, women have never served as elected officials of the constitutional government (governor or member of the legislature) or as appointed judges of the constitutional courts.
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The ability to name your political leaders or take away their name, and thus their position of political power, is the ability to exercise political control.
Naming a Child
Traditionally, Yapese parents do not name their children. The child’s name is chosen and given by the child’s father’s sisters. The mother’s family is not involved in naming the child, because the land from which the male child’s name comes and the land over which the female child will have control belongs to the child’s father’s family or clan. The right to name the child belongs to the women, usually the child’s aunts, of the father’s clan.
The child’s father’s sisters also retain the right to take a name away. A name can only be taken away for failure to fulfill one’s obligations. One of the most common causes for taking a name away is the failure to care for one’s parents as they age. As with naming a child, the decision to take a name away is made by the group of female relatives who have reached a consensus regarding the person’s behavior. When the women of the clan take a name away, it is usually taken from a grown person. Once the name is taken away, the individual no longer has any of the rights or privileges which ran with the piece of land for which he was named. The individual has lost more than a name. The individual has also lost the right of his or her future children to receive names from the clan.5 The individual has lost his or her place in society and possibly also the place of his or her children in society.
When Two Worlds Collide
Because there is no clear demarcation between the issues which should be determined through the traditional system or those which should be determined through the government process and because issues which in the past had been determined through traditional group consensus decision-making processes are now being made by government officials, the political power traditionally exercised by women is becoming increasingly irrelevant. The essence of the political power traditionally held by women was that the fact that women controlled the land. By controlling land, women controlled the economy by controlling wealth (the more land, the more wealth or the more ability to create additional food or other items for trade); women controlled existence (land meant subsistence - the ability to grow food and eat); and women controlled political power by naming the future chief and thus, the line of political succession. The strength of women’s political power came from the fact that women acted as a group, a group in which all of had the opportunity to speak and thus, to shape the decision.
With the adoption of a constitutional democracy which emphasizes the individual, one man, one vote model, political power is now viewed as the ability to vote, not the ability to control the land. Moreover, with a constitutional democracy comes the need for a government center. A government center creates jobs in a money economy. Jobs stimulate economic growth, which usually includes the development of a housing market with rental units. This has
5 The author is personally aware of at least one incident where a child had not received a Yapese name because the child’s father’s aunts believed that the child’s father had not fulfilled his obligations to the family and, in particular, the child’s grandfather.
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occurred in Yap with the result that an individual no longer needs clan land on which to live and raise a family. When one no longer needs the clan land and where one can exercise individual power through the vote, one can risk the anger of one’s aunts because the loss of one’s traditional name no longer means the loss of one’s status in society.
Constitutional Citizenship
Although women were granted constitutional citizenship in both the FSM and Yap Constitutions, that constitutional citizenship is not an adequate substitute for the political power exercised under the traditional system. Under the traditional system, when women used their political power as a group, women were able to effectuate change and were able to ensure that women, children, and the elderly were adequately cared for by the community. The survival of the clan required that all members of the clan fulfill their obligations to the clan. It was the duty of the women to insure that these obligations were fulfilled.
Constitutional citizenship and the rise of a money economy has eroded the perception of the importance of land within the community. The ability to migrate to town – the government center – or even abroad to the U.S. has negated the need to have land in the village. One can survive without land and thus, without having to fulfill one’s obligation to the land, without having to fulfill one’s obligation to the clan.
Because the traditional system and the constitutional government coexist without clearly defined responsibilities, many issues, such as domestic violence, child abuse and neglect, and women’s equality, which were previously addressed through traditional mechanisms where women had a voice and could exercise political power are not being adequately addressed. The constitutional government assumes that because these issues are issues which were, in the past, addressed by the traditional system, the issues are still being adequately addressed by the traditional system. The constitutional government has failed to recognize that the adoption of an individual constitutional model has eroded important aspects of the traditional system which had acted as a safety net for women and children. The constitutional guarantees as interpreted by the U.S. Supreme Court and embedded in the FSM and Yap State Constitutions are insufficient to replace the traditional mechanisms which have been eroded by the adoption of a constitutional democracy and the grant of constitutional citizenship to Yapese women. The focus on individual constitutional rights guaranteed by the Constitutions has been insufficient to replace the exercise of communal political power traditionally exercised by women for the betterment of the community.
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Gender and Constitutional Citizenship
Helen Irving Professor, Faculty of Law, University of Sydney Australia
Citizenship is a normatively over-burdened concept. In recent times, it has spawned a vast body of literature, in which unwieldy, often incommensurable claims are made, and new normative categories and adjectival taxonomies created. As the unifying theme of this literature, the term ‘citizenship’ captures claims for equality and/or political virtue in particular communities or the public sphere broadly. But citizenship is also a formal status, a legal classification of persons. It has major, real-world consequences, unrelated (or only indirectly related) to normative claims. It may determine whether an individual enjoys political, residential, and sometimes social entitlements under law. Political theorists and sociologists of citizenship commonly overlook this legal reality; in return, citizenship lawyers commonly neglect the normative or ethical dimension. Constitutional citizenship blends the two. It takes account of the legal framework in which citizenship is acquired, retained and transmitted, as well as the norms of constitutional allegiance, or (to use the Habermasian term) ‘patriotism.’
In this paper, I am concerned with an under-recognised aspect of constitutional citizenship, its gendered character. That constitutional citizenship has been historically and normatively gendered, is evidenced in a number of (inter-related) domains. Historically, notwithstanding the facially gender-neutral character of the term ‘citizen’
- Constitutional provisions for birthright citizenship have not guaranteed the retention of citizenship for women,1 or the right to transmit maternal citizenship to children. - The constitutional rights and entitlements expressly guaranteed to ‘citizens’ have been denied to women.2 - Legal concepts of constitutional ‘allegiance’ have grown from common law concepts of masculine citizenship.
Normatively,
- While modern critiques of constitutional identity seek to include, or make way for cultural pluralism, most overlook the pluralism of gender. - Ideas of constitutional allegiance and ‘patriotism’ remain inflected with citizenship’s masculine history.
1 For example, notwithstanding the apparent guarantee of citizenship by birth in the Fourteenth Amendment, the U.S. Expatriation Act 1908, provided: ‘Any American woman who marries a foreigner shall take the nationality of her husband.’ Its repeal by the Cable Act 1922 did not extend to women of Asian origin. Their disqualification was repealed in 1931. See Leti Volpp, ‘Divesting Citizenship: On Asian American History and the Loss of Citizenship through Marriage’ (2005) 53 UCLA Law Review 357. 2 Upheld by the U.S. Supreme Court in cases such as Bradwell v Illinois 63 U.S. 130 (1872), and Minor v Happersett 88 U.S. 162 (1875).
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Much has been written on pluralism and constitutional attachment, addressing the problem of securing the adherence or consent of minorities to majority (or universal) constitutionalism. Simone Chambers, for example, calls constitutions ‘mirrors of the multi-faceted identities that populate a political order.’ 3 Narratives of popular sovereignty, she argues, can no longer rely on hypothetical consent, but must include what citizens actually say on the subject of their own constitution.
Very little attention, however, has been paid to the forms or means of constitutional attachment available to women. Why should this be an issue? We can recognize readily why minority cultural attachments may be problematic; they may clash with or erode the values required to maintain stable and coherent governance. But (or so it might be objected) gender differences do not line up with value-cleavages. They are neither sufficiently unified, nor aligned with the type of alternative normative systems that are of relevance to coherent governance. To put it bluntly, if the problem with minority cultural ‘patriotism’ is its potential for destabilizing modern constitutionalism (specifically the commitment to equality and liberal justice), women’s culture, to the extent that it is identifiable in systems governed by modern constitutionalism, is harmless. That may be so. However, my concern lies elsewhere.
Modern constitutionalism rests on, and requires, legitimacy. Constitutional legitimacy entails a mixture of consent and attachment to the constitutional state on the part of individual citizens. Stable and just constitutional states require (as a minimum) the attachment and consent of the majority. While some aspects of the theoretical discussion about ways of securing minority attachment to majoritarian constitutional government are relevant to gender, women cannot be assimilated to minorities. They are, like men, an equal majority. Theories of modern constitutionalism cannot afford to overlook the forms of constitutional attachment, allegiance and meaning experienced by a majority of the citizens.
In explaining why attention to gender is a significant (albeit largely overlooked) aspect of constitutional citizenship, I want to avoid an explanation based on notions of ‘inherent’ or socially-intractable difference; that is to say, the sort of account that suggests that women have different ‘ways’ of attaching themselves than men, and that the universal or abstract attachments required of constitutional ‘patriotism’ or normative constitutional citizenship are inappropriately masculine and faux-universal. Such accounts are valid, but they miss the point: theories of constitutional attachment or constitutional citizenship are normative claims for transcending particularities, whether ethnic/racial/religious/national or, indeed, genetic. We need to engage with what the theory seeks to do; the ‘ought’ cannot be defeated by the ‘is.’ On the other hand, concepts cannot be abstracted from history. Not only are they historically embedded (being articulated in particular historical contexts and moments), they are also shaped by, and evolve through, historical practice.
3 Simone Chambers, “Democracy, Popular Sovereignty, and Constitutional Legitimacy”, Constellations, vol II/2 (2004), p. 158.
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Keeping this in mind, my argument goes like this: the legal-normative status of citizenship developed historically from reciprocal relations of allegiance and duty between the individual and the sovereign.4 A citizen (or subject) owed allegiance to, and in return was protected by, the sovereign. Allegiance was direct and masculine. It was measured, primarily, by readiness and capacity for military defence. To enter and enjoy this relationship, an individual had to be male and free born. The entitlements of citizenship (those associated with participation in public affairs) followed. In classical times, and in the early modern state, women were not included in the category of ‘citizen’. When, later (from around the second half of the nineteenth century) they came to be included (conceptually, if not practically), their citizenship was derivative. They were classified (in the manner of children today) under the citizenship of their father and, if they married, their husband.
The test remained one of allegiance. Women were assumed to owe allegiance not to the sovereign, but to their closest male relative. (The man, like the sovereign, owed a reciprocal duty to support and protect his family.) Political entitlements did not attach to women’s citizenship because their relationship was not with the political sovereign, but with a personal family member. 5 This normative foundation was translated into law. The clearest example lies in ‘marital naturalization’ and its counterpart, loss of citizenship on alien marriage. During the nineteenth century, modern constitutional states began to put into legislative effect the assumption that a woman’s personal status was derived from her husband. In many cases, automatic citizenship was conferred on alien women by the country of their husband’s citizenship. Women who married alien men lost their birth-citizenship (this applied even where citizenship by birth appeared to be constitutionally guaranteed6). Behind such laws lay the assumption that allegiance and citizenship were co-mingled; that a woman owed allegiance to her husband, not to a country; and that her country of citizenship was therefore the country of her husband’s allegiance. Such laws lasted into - in some cases, well into - the twentieth century.
The co-mingling of citizenship and personal allegiance endures. It has increasingly become constitutionalized, both normatively and legally.7 While simple tests of capacity for military defence no longer apply, the concept of citizenship allegiance still rests on principles of loyalty and individual propensity to public harmlessness. Legal consequences follow.8
4 This applies whether we take the English common law or the (much overworked, and largely irrelevant) classical (Athenian/Roman) citizenship as our model. 5 One of the principal arguments against female suffrage indeed was its likely ‘alienating’ effect; drawing women away from their primary sphere of loyalty and service, the family. 6 As noted in fn 1, above. 7 In the theory of constitutional ‘patriotism’; in the growth of ‘tests’ for citizenship by naturalization; and in cases involving challenges to the constitutional identity of individuals, for example, with respect to deportation orders (see Helen Irving, ‘Still Call Australia Home: The Constitution and the Citizen’s Right of Abode’ (2008) 30(1) Sydney Law Review 133 ) 8 Among others, deportation of dangerous resident aliens; loss of voting rights for prisoners; denial or stripping of citizenship by naturalization; loss of citizenship on military service to a foreign sovereign.
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Jan-Werner Muller observes that in Habermas’s concept of constitutional patriotism, the object of attachment is not the specific constitution itself but, ‘ultimately the very idea of citizens mutually justifying political rule to each other.’ More specifically, he states, ‘citizens attach themselves to the norms and values at the heart of the constitution, that is, the constitutional essentials, and, in particular, the fair and democratic procedures that can be presumed to produce legitimate law.’9 Muller argues for a concept of constitutional culture which mediates between universal norms and particular contexts. These contexts enter the norms, ‘[b]ut the norms included in the constitution in turn will transform the way in which citizens view their traditions and the ... cultures ... with which they find themselves confronted.’ This is a circular process, ‘in which constitution, constitutional culture, and a diverse and evolving set of cultural ... self-understandings in a more general sense come to influence and, ideally, reinforce one another.’ 10
In such ways, we take notice of, and factor cultural pluralism into accounts of constitutional universalism. Similar considerations can and should apply with respect to gender. What, then, are the traditions, norms, legal realities, and self-understandings which assist with understanding and transforming a constitutional citizenship that rests on, and is emerging from, an exclusionary (masculine) history?
I do not offer a check-list but, rather, make a number of observations (all of which eschew ‘identity politics’). First, the validity of claims for minority interests and cultural pluralism does not rest on specific values or particularities, but on the centrality of citizen ‘consent’ in establishing constitutional legitimacy, and the recognition that a requirement of consent is unrealistic and/or unreasonable where its object denies contested values or depends on narratives of exclusion. Similar considerations apply to gender. At the same time, the very claim for recognizing pluralism and the effort to articulate alternative frameworks for achieving normative coherence has an iterative (or circular) effect on our theories of constitutional attachment, consent and legitimacy. Thus also with gender.
Secondly (and related), we need to recognize the gender-normative impact of heroic stories of constitutional ‘fathers’ (and other metaphors); accounts of allegiance as military service; the residue and memory of past rights deprivations; the normative privileging of the traditional public sphere as the site of (virtuous) citizenship; the trivializing of histories of gender oppression and, similarly, of women’s political and legal victories; as well as the history of constitutional cases (including those affecting women) in shaping constitutional identity;11 and the recognition (that we offer to cultural minorities) of both the value and the price paid in the
9 Jan-Werner Muller, Constitutional Patriotism (Princeton University Press, 2007), p. 58 10 Muller, ibid, p. 59 11 Michel Rosenfeld, ‘The Identity of the Constitutional Subject’ (1994-1995) 16 Cardozo Law Review 1049. As Rosenfeld states, the result in Roe v Wade (1973) ‘had an unmistakable and significant impact on the constitutional identity of the United States’ (p. 1066). Presumably, this impact included the recognition by women that the Constitution ‘spoke to’ or about a core female experience; as, also presumably, Reed v Reed (1971) did, in (finally) extending the 14th Amendment ‘equal protection of the laws’ to women.
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abandonment of traditional identity-formation and the adoption of ‘postconventional’ identities.
As Frank Michelman writes, constitutional patriotism enters ‘not in entire forgetfulness but trailing clouds of culture from our particular national home.’12 There is no reason to confine these ‘trails’ to national culture; no reason to assume that the national has a uniform and privileged place in identity formation and that it, alone, leaves a residue in the forging of constitutional patriotism. In place of ‘national’, we may readily insert ‘gendered.’ The core equality norm of constitutional citizenship, I conclude, cannot be met without both a theory and a legal reality in which the place, voice and allegiance of women is accorded equal status and salience.
12 Quoted by Muller, note 11, p. 70.
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Judicial Promotion of Gender Equality in Chieftaincy Succession Disputes: An Appraisal of the Shilubana1decision
Obeng Mireku Professor and Dean Faculty of Management & Law University of Limpopo South Africa
1. Introduction
Until the South African Constitutional Court’s landmark decision in Shilubana, the concept of male primogeniture had been utilised by courts as the overarching defining rule in resolving customary law disputes of intestate succession in South Africa. With the entrenchment of the Bill of Rights in the 1996 Constitution, however, the constitutional validity of male primogeniture has been persistently called into question in a number of cases that have come before the courts. Male primogeniture has often been challenged because arguably it discriminates unfairly on the grounds of age, birth and, most conspicuously, gender.
Thus far aspects of gender discrimination which have received judicial attention have been largely confined to intestate succession of a deceased’s estate devolving according to personal law or family law. Little attention, either judicial or academic, has been given to the issue of gender discrimination as played out by the customary (constitutional) law rule of patrilineal succession in terms of which women may not hold political office in traditional African communities in the country.
The purpose of this paper is to critically examine how the courts have attempted to harmonise male primogeniture with gender equality especially in chieftaincy succession disputed. To this end, the paper seeks to critique and appraise recent judicial decisions in the Shilubana cases in order to provoke critical dialogue over the recent Constitutional Court’s judgement upholding gender equality in chieftaincy succession and outlawing male primogeniture. Following the first judicial decision in the Nwamitwa case by the Gauteng North High Court, both the Supreme Court of Appeal and the Constitutional Court have also taken turns in expressing their opinions on the subject. The Supreme Court of Appeal largely affirmed the High Court judgment. However, the Constitutional Court overturned the decision of the two courts below. In view of the concurrence of the Supreme Court of Appeal with the High Court judgment, this paper considers the High Court decision as a representative approach of the two courts while the Constitutional Court judgment is treated as a contrary approach to the subject.
1 Shilubana and others v Nwamitwa [2008] ZACC 9. This judgment might serve as a useful precedent in a potential litigation by a woman who aspires to become the tribal chief of the Baphiring near Rustenberg in North West province (see The Citizen newspaper 1 July 2009, page 5).
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2. The Nwamitwa decision2
In Nwamitwa v Phillia, the High Court was invited to determine whether a woman could succeed her late father, a chief, and become a tribal chief. First respondent and the applicant in this case are respectively female and male members of the royal family of the 70,000-member Valoyi tribe that constitutes part of the Tsonga/Shangaan nation of contemporary Limpopo Province. Both contesting parties are cousins. Their fathers were brothers. For over five generations, the appointment and succession to chieftaincy among the Valoyis have been strictly patriarchal, as determined by the organising principle of male primogeniture which allows succession from father to firstborn son only. The immediate events culminating into this dispute originated in 1948 when Hosi (Chief) Fofoza Nwamitwa was enthroned as the chief. He reigned for two decades until 1968 when he died without a male heir. Hosi Fofoza was the father of the first respondent.
The first respondent was the only child born of the first wife but it was inconceivable at that time that a woman could become a chief. In view of this, when Hosi Fofoza died in 1968, his younger brother, Richard was appointed chief. Hosi Richard Nwamitwa was the father of the applicant. The applicant is Hosi Richard’s firstborn son from his first wife. It was upon the death of Hosi Richard in 2001 after South Africa had transitioned from the racist apartheid system to constitution democracy in 1994 that celebrates inter alia gender equality-that the issue arose as to whether the applicant or the first respondent should succeed as the tribal chief.
Based on various resolutions adopted by the Valoyi tribal authorities including the royal family, provincial government (the State) in 2002 appointed first respondent as chief “accordance with the practices and customs of the Valoyi tribe within the meaning of the Constitution of the Republic of South Africa Act 108 0f 1996”3
That did not go well with Hosi Richard’s firstborn son, Sidwell Nwamitwa, the applicant in this case. According to the applicant, the tribal authorities had no right to alter the primogeniture rule. The High Court ruled in his favour by reasoning that a female successor could not become a chief in terms of the customs and traditions of the tribal community.4 In other words, as far as the Valoyis are concerned there was neither precedent nor evidence of a female having been appointed as chief, even if she was the firstborn.5
2 Nwamitwa v Phillia 2005 3 SA 536 (T) a judgment by Swart J presiding over the Gauteng North High Court (formerly the Pretoria High Court). On 1 December 2006, the Supreme Court of Appeal unanimously dismissed an appeal against the High Court judgment in this case. The Supreme Court of appeal judgment, which largely upheld the reasoning of the High Court is reported as Nwamitwa Shilubana v Nwamitwa 2007 2 SA 432 (SCA). 3 3Ibid 546 D 4 Ibid 539 I-J 5 Ibid 5450 E-F
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In conclusion, Swart J pointed out that
A most important consideration in the Tsonga/Shangaan and Valoyi custom is that a chief of the tribe must be fathered by a chief. This has always been the practice. If a female is appointed as chief and also marries, her children would not have been fathered by a Valoyi chief, would bear a different name and would not be members of the royal family. This would lead to confusion and uncertainty in the successorship6[sic]
3. Critique
The Nwamitwa decision may be criticised for the court’s failure or refusal to develop the primogeniture rule, so as to promote the spirit, purport and objects of the Bill of Rights. Moreover, the decision flies in the face of the transformative agenda of the Traditional Leadership and Governance Framework Act7 in two main senses. In the first place, the preamble of this legislation unambiguously stipulates that the institution of traditional leadership must be transformed to be in harmony with the Constitution and the Bill of Rights so that “gender equality within the institution of traditional leadership may progressively be advanced”. The Nwamitwa decision fails to recognise the statutory obligation imposed on traditional communities to transform and adapt customary law and customs so as to comply with the Bill of Rights, in particular by “seeking to progressively advance gender representation in the succession to traditional leadership positions”.8
In this respect, the Nwamitwa decision does impoverish the emerging gender equality jurisprudence in particular, and in the end retards the progressive judicial development of customary law, which ought to keep pace with human rights norms. As Lehnert explains, this shortcoming may be due to the “limited understanding of customary law concepts” among judges, which result in the rigid and mechanical “application of the principle of male primogeniture without even considering the changed practices in the living [customary] law”. 9 Himonga similarly criticises this kind of disingenuous judicial approach to customary law by charging that such an
uncritical superficial approach of the courts to customary law… has a serious bearing on the extent to which women living under customary law may enjoy human rights under the Constitution and the international human rights instruments that South Africa has ratified. 10
Male primogeniture, as applied in this case, embodies the blatant injustice arising from the obvious fact that if the applicant were a man, she would have succeeded her father as chief of
6 545G–H. 7 Act 41 of 2003. 8 Section 2(3)(c) of the Traditional Leadership and Governance Framework Act. 9 Lehnert “The Role of the Courts in the Conflict between African Customary law and Human Rights” 2005 SAJHR 241, 264 and 266.
10 Himonga ‘ The advancement of African women’s rights in the first decade of democracy in South Africa: the reform of the customary law of marriage and succession’ Acta Juridica (2005) 82-107 at 107.
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the Valoyi tribe in 1968. But at that time, customary law classified women as minors and that was why her uncle, Hosi Richard, replaced her late father, and ruled until his death in 2001.
It is thus submitted that the meaning and relevance of the primogeniture rule should not be left behind in a society whose changing standards of life and ethos are continuously on the move. If the primogeniture rule is always interpreted with reference to the archaic meaning accorded to it by our ancestors, then contemporary people, especially women of the new millennium, may surely lose faith in it, and may not respect it because male primogeniture seems to be unjust and unfairly discriminatory towards women. As a matter of fact, indigenous law is a dynamic system of law that has values and norms, but which values and norms continue to change and evolve within the context of the Constitution. For this reason it is important for the rule to develop with the changing expectations of those who look to it as the embodiment of the values and aspirations of the customary law community and its citizens.
11 4. The Shilubana decision
These observations and criticisms have been rightly reflected in the Constitutional Court judgment in the same matter rejecting the conservative approach of both the High Court and the Supreme Court of Appeal which in effect upheld the validity of the male primogeniture rule. Speaking for the court, Van der Westhuizen J led the unanimous Constitutional Court in ruling that
[t]he conclusions of the High Court and Supreme Court of Appeal that the traditional authorities lacked the power to act as they did were incorrect. They erred in that their focus was too narrow…. They gave insufficient consideration to historical and constitutional context of the decision, more particularly the right of traditional authorities to develop their customary law.12
According to the Constitutional Court,
customary law is living law and will in future inevitably be interpreted, applied and, when necessary, amended or developed by the community itself or by the courts. This will be done in view of existing customs and traditions, previous circumstances and practical needs, and of course the demands of the Constitution as the supreme law.13
It is submitted that the Shilubana decision is not only revolutionary, but more importantly, a quintessentially transformational judgment celebrating gender equality in chieftaincy succession disputes. Shilubana is also a welcome decision because it is consistent with the
11 Shilubana and Others v Nwamitwa ( National Movement of Rural Women and Commission for Gender Equality as Amici Curiae) [2008] ZACC 9. 12 Ibid. para 85 13 Ibid. para 81
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grand transformative agenda of the Constitution,14 the equality jurisprudence progressively developed by the Constitutional Court since its inception15 as well as the international law obligations in respect of women which South Africa has undertaken since 1994.16
Nonetheless, the optimism generated by the erudite creativity of the supreme constitutional tribunal in Shilubana has to be tampered with reasonable circumspection. Since, as Albertyn opines, “transformatory change” as exemplified in Shilubana is ordinarily “incremental”,17 the “struggle for gender equality” should not, in the words of Mokgoro,
be confined to the court rooms. Litigation has its limitations as it tends to be the privilege of the economically empowered. 18
In order to overcome the imperfections of the judiciary as the sole roleplayer in driving social transformation and gender equality, Mokgoro argues for a vibrant civil society which can “ agitate for change and monitor implementation” 19 especially in traditional communities in the rural areas. Kok takes the issue even further by advocating for the establishment of an “inter- institutional dialogue” between civil society on one hand as well as the executive, legislative and judicial branches of government on the other. 20
5. Concluding remarks
Like the Bhe decision which rejected the male primogeniture rule in intestate succession disputes at family, the Shilubana court has again dealt a fatal and decisive blow at the gender-based discriminatory rule of primogeniture in chieftaincy succession disputes at public law. What this means is that where a traditional community is confronted with a chieftaincy succession dispute based on gender discrimination, the Shilubana judgment of the Constitutional Court serves as an authoritative and binding precedent if similar facts arise.
14 O’Sullivan and Murray ‘Brooms sweeping oceans? Women’s Rights in South Africa’s first decade of democracy’ Acta Juridica (2005) 1-41 at 1-2. 15 e.g. Prinsloo v Van der Linde and another 1997(3) S A 1012 (CC); 1997 (6) BCLR 759 (CC), President of the Republic of South Africa and another v Hugo 1997 (4) S A 1 (CC); 1997 (BCLR) 708 (CC); Brink v Kitshoff 1996 (6) BCLR 752 (CC); 1996 (4) S A 197 (CC). 16 e.g. The African Protocol on the Rights of Women Resolution AHG/Res 240 (XXXI) adopted on 11 July 2003 by the OAU to supplement the African Charter. 17 Albertyn “ Substantive equality and transformation in South Africa” (2007) 23 SAJHR 253-276 at 276. 18 Mokgoro “Constitutional claims for gender equality in South Africa: a judicial response” (2003) 67 Albany Law Review, 565-573 at 573. 19 Ibid. 20 Kok “ The Promotion of equality and promotion of unfair discrimination act of 2000: court-driven or legislature- driven societal transformation?” (2008) Stell LR, 122-141 at 139.
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In other words, Shilubana empowers appropriate traditional authorities to effect incremental developments which are necessary to keep customary law in line with the dynamic and evolving fabric of the egalitarian society as envisioned in the South African Constitution. Undoubtedly, the Shilubana decision promotes gender equality by recognising the right of a woman to be appointed chief of a traditional community in the same way as the largest ethnic community of the BaLete in Botswana appointed Kgosigadi Mosadi Sebolo as the first female paramount chief and president of the national House of Chiefs. Indeed the judicial recognition for the appointment of a female chief in any traditional community should be understood within the context of the tremendous socio- economic changes taking place, not only in this country, but across the entire African continent21 and how gender inequality is being addressed at all levels of society.
21 Besides the Balobedu and Pondomisa ethnic communities in South Africa that have been famous for having female rulers over a long time, the African continent has many isolated cases of female chiefs such as among the Amarharbe, Nkoya and Barotse in Zambia, two paramount chiefs in Sierra Leone, the Deji in Nigeria as well as the Appraponso tribe in Ghana.
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Gender and Constitutional Design: Democracy and the Challenge of Multiculturalism
Susan Williams Indiana University Maurer School of Law United States
Introduction: Gender and Constitutions Constitutionalism is sweeping the world. Since 1990, at least 110 countries around the globe have been involved in writing new constitutions or major revisions of old ones.1 In many of these countries, issues of gender equality have been a central concern in the constitutional process. Women have been active participants in these constitutional projects and they have worked for the inclusion of a broad range of constitutional provisions and mechanisms to promote gender equality.2 One might expect that this phenomenon of world-wide constitution drafting would have generated a rich literature concerning gender equality issues in comparative constitutional law, but in fact it has not. As the editors of one of the very few books on the subject put it, “there is a huge gap – a gender gap – in contemporary comparative constitutional analysis.”3
The lack of attention to these issues became painfully clear to me in 2003, when I began to work with women’s groups from Burma and Liberia on constitutional reform addressing gender equality issues. For the past several years, I have been working with constitutional drafting teams in the Burmese democracy movement to write state and federal constitutions that will, hopefully one day soon, help to provide the legal frameworks for a free and democratic Burma. As part of this work, I have acted as an advisor to the Women’s League of Burma (WLB) -- an umbrella group for many of the women’s groups in the democracy movement – helping them to draft constitutional provisions, write position papers, and design advocacy campaigns in support of these provisions. The WLB and other groups like it around the world are participating in law reform and constitutional drafting projects. In this process they need assistance on specific issues: information about the range of possible constitutional mechanisms for promoting gender equality; data on the effectiveness of different mechanisms in different countries; and guidance about drafting legal language to implement these mechanisms. But in my efforts to research these issues, I ran into one dead-end after another.
The subject seems to have fallen into a gap between the two fields of comparative constitutional law and gender equality law. Three recent works begin the process of bridging this gap. Beverly Baines and Ruth Rubio-Marin’s book, The Gender of Constitutional Jurisprudence,4 was the first book-length treatment of issues of gender in comparative constitutional law. The second book, by Helen Irving, is Gender and the Constitution: Equity and
1 See http://confinder.richmond.edu/index.php 2 See WOMEN MAKING CONSTITUTIONS: NEW POLITICS AND COMPARATIVE PERSPECTIVES (Alexandra Dobrowolsky & Vivien Hart, eds.) (Palgrave 2003). 3 Beverley Baines & Ruth Rubio-Marin, Introduction: Toward a Feminist Constitutional Agenda in THE GENDER OF CONSTITUTIONAL JURISPRUDENCE 1, 2 (Beverly Baines & Ruth Rubio-Marin, eds.) (Cambridge University Press 2005). 4 See supra n. 3.
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Agency in Comparative Constitutional Design,5 which added a design-based approach to the subject. The most recent book is Constituting Equality: Comparative Constitutional Law and Gender Equality,6 which I edited. This book continues the design orientation and adds an interdisciplinary and global perspective.7
The range of constitutional issues with an impact on gender equality is much broader than might at first appear. The constitutional guarantee of equality rights, and rights provisions generally, are, of course, of great importance from the perspective of gender equality. But many other aspects of the constitution can also have important effects promoting or retarding the progress to greater equality for women. Structural issues – such as federalism v. unitary systems, presidential v. parliamentary systems, and the choice of an electoral system – have been the mainstay of the comparative constitutional literature. These structural aspects are generally seen as responses to issues of cultural/religious/ethnic division within a society or as mechanisms for regulating political life, but they can have profound, and often ignored, implications for gender equality. For example, the choice of a proportional representation (PR) electoral system as opposed to a first-past-the-post (FPP) system has a large impact on the level of women’s political representation. Women do much better in PR than in FPP systems.8 The inclusion of a constitutional mandate for a PR electoral system is, therefore, an extremely useful mechanism for promoting women’s equality.
Multiculturalism and Feminism 9 In this paper, I want to briefly suggest the usefulness of a gender equality focus and a feminist perspective in dealing with one such issue of constitutional design: multicultural accommodations of minority ethnic or religious groups within a pluralist, democratic state. When one begins from the perspectives of women and a concern for gender equality, the problem raised is that accommodation of the minority culture by the larger society sometimes results in serious harm to vulnerable groups within the minority culture. This problem is well- recognized in the literature on multiculturalism and is often referred to as an issue of “internal minorities”10 or as the “paradox of multiculturalism.”11 In many controversies in liberal democracies over issues of accommodation, the vulnerable group that is hurt is often women.
5 HELEN IRVING, GENDER AND THE CONSTITUTION: EQUITY AND AGENCY IN COMPARATIVE CONSTITUTIONAL DESIGN (Cambridge University Press 2008) 6 CONSTITUTING EQUALITY: COMPARATIVE CONSTITUTIONAL LAW AND GENDER EQUALITY (Susan H. Williams, ed.) (Cambridge University Press 2009). 7 The first two pages of this paper are taken from my introduction to that book. See Introduction: Comparative Constitutional Law, Gender Equality, and Constitutional Design in CONSTITUTING EQUALITY, supra n. 6 at 1. 8 See Drude Dahlerup & Lenita Freidenvall, Gender Quotas in Politics – A Constitutional Challenge, in CONSTITUTING EQUALITY, supra n. 6. 9 The remainder of this paper is taken from a longer work considering this issue in more detail. See Susan H. Williams, Democratic Theory, Feminist Theory, and Constitutionalism: Models of Equality and the Challenge of Multiculturalism (unpublished manuscript on file with author.) 10 See Leslie Green, Internal Minorities and Their Rights at 257 in THE RIGHTS OF MINORITY CULTURES (Will Kymlick, ed.) (Oxford University Press 1995); see generally MINORITIES WITHIN MINORITIES: EQUALITY, RIGHTS, AND DIVERSITY (Avigail Eisenberg & Jeff Spinner-Halevy, ed.) (Cambridge University Press 2005).
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There is, however, an important part of this problem that has received insufficient attention. In order to highlight this aspect of the problem, I will draw on a constructivist conception of culture and a dialogic model of democracy, both of which have been adopted by a number of feminist theorists as the frameworks for addressing these issues. But I will suggest that there is an aspect of the democratic model that has been largely overlooked and that is central to an adequate response to the problem of vulnerable internal minorities. The missing element concerns the need to build in mechanisms for challenge and disruption within the democratic dialogue in order to avoid the reinscription of hierarchy. When the dialogic model, with this element of disruption, is applied to the deliberations within the minority community – and not just to discussions between minority and majority, as is usually the focus – then additional possibilities appear for dealing with the problem of vulnerable internal minorities. In particular, it is possible for the liberal state to link accommodation of minority cultures to the willingness of the minority community to allow for internal challenge and change.
The Problem of Internal Minorities This issue arises in a number of different forms and in a range of different contexts. The literature tends to focus on the particular context of states committed to a liberal, democratic form of government in which a number of different communities are seeking just conditions for co-existence. My comments will also be addressed to that context. The types of communities making accommodation claims within such states vary, of course, and that heterogeneity complicates the analysis. Moreover, the kind of accommodation requested by minority communities also covers a wide range, from claims for exemptions from laws that burden cultural practices to demands for group representation within government and many others.12
The literature has tended to resolve the problem of vulnerable internal minorities by going to one extreme or the other: some theorists would allow a minority group to restrict or discriminate against its own members with very few limits beyond a guarantee that those members have freedom to exit,13 while other theorists would refuse to allow any discrimination or restriction that violates the liberal rules applicable within the majority culture.14 Both of these responses are extremely problematic. The problem with relying upon exit as a basis for allowing mistreatment of internal minorities is twofold. First, in order to function as a justification here, exit cannot simply be a theoretical possibility; it must be a practical possibility. But economic, social and emotional realities often make exit a less than meaningful option for vulnerable people.15 And, second, even if exit is truly possible, this approach forces a woman faced with such cultural practices to choose between her rights as a citizen and her
11 See AYELET SCHACHAR, MULTICULTURAL JURISDICTIONS: CULTURAL DIFFERENCES AND WOMEN’S RIGHTS 3 (Cambridge University Press 2001). 12 For a useful list of the range of accommodation claims, see JACOB LEVY, THE MULTICULTURALISM OF FEAR 127 (Oxford University Press 2000) 13 See Chandra Kukathas, Are There any Cultural Rights? In THE RIGHTS OF MINORITY CULTURES, supra n. 10 at 238, 247- 48. 14 See SUSAN MOLLER OKIN, IS MULTICULTURALISM BAD FOR WOMEN? (Princeton University Press 1999) 15 See SARAH SONG, JUSTICE, GENDER, AND THE POLITICS OF MULTICULTURALISM 161-62 (Cambridge University Press 2007);see generally Oonagh Reitman, On Exit in MINORITIES WITHIN MINORITIES, supra n. at 192-204.
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culture.16 The alternative approach, by insisting that no minority community can be accommodated in any practice that violates the liberal norms of the majority, leaves little room for the diversity that multiculturalism was intended to protect. In other words, this approach is really only possible for those who do not regard the inclusion of minority cultures as an important priority of justice.
Feminist Responses: Constructivism, Dialogic Democracy, and Multiculturalism A number of feminists have turned to a more complex understanding of culture and to dialogic models of democracy to provide a method for protecting vulnerable internal minorities while respecting the minority communities to which they belong. Rejecting a “billiard ball” model of culture, these theorists have insisted on a constructivist approach instead.17 In this approach,”cultures are internally contested, negotiated and reimagined by members, who are sometimes motivated by their interactions with outsiders.”18 Recognizing the internally contested nature of cultures suggests the need for sensitivity to the power dynamics within a culture and the ways in which the minority group’s interaction with the majority affects the status, power, and resources of subgroups within the minority community. As many theorists have recognized, certain forms of accommodation – such as group representation and the incorporation of traditional norms into the state legal system – can have a systematic effect of supporting traditional authority figures in the community, and their views of the culture, at the expense of the power and perspectives of more marginalized groups, often including women.19 There is no neutral position for the state here: action and inaction both have consequences for the distribution of power and status inside the minority community.
Many of the feminist theorists struggling with the issues of vulnerable internal minorities also embrace a dialogic model of democracy as a useful tool. Anne Phillips, Seyla Benhabib, Iris Marion Young, Monique Deveaux, Sarah Song, and Judith Squires all support various forms of dialogic democracy as offering a mechanism for the majority and minority cultures to reach acceptable accommodations.20 I agree that a dialogic model of democracy is a good starting place for thinking about issues of multiculturalism in liberal, democratic societies. The focus on equal respect and inclusion provides a foundation for both the accommodation claims made by minority communities and the possible grounds for limiting those claims. And I agree that a democratic dialogue between the many groups in a pluralist society is an important part of the process for resolving the difficult cases. The particular observation I want to offer here is that a dialogic, democratic approach to the problem of vulnerable internal minorities requires additional attention to the dynamics within the minority community, and
16 See SCHACHAR, supra n. 11. 17 See Iris Marion Young, Together in Difference: Transforming the Logic of Group Political Conflict in THE RIGHTS OF MINORITY CULTURES, supra n. 10 at 157-161. 18 SONG, supra n. 13 at 32. 19 See Anne Phillips, Multiculturalism Without Culture 163, 169(Princeton University Press 2007). 20 See PHILLIPS, supra n. 17; SEYLA BENHABIB, THE CLAIMS OF CULTURE: EQUALITY AND DIVERSITY IN THE GLOBAL ERA 105-46 (Princeton University Press 2002); IRIS MARION YOUNG, INCLUSION AND DEMOCRACY (Oxford University Press 2000); MONIQUE DEVEAUX, CULTURAL PLURALISM AND DILEMMAS OF JUSTICE (Cornell University Press 2000); SONG, supra n.; Judith Squires, Culture, Equality, and Diversity in MULTICULTURALISM RECONSIDERED 120 (Paul Kelly, ed.) (Polity Press 2005).
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not only to the dialogue between the community and the larger society. While all of the theorists I have mentioned recognize this issue, none of them has focused on it. Their focus is on the nature of the dialogue within the larger society.21 The missing element, then, is some sustained attention to the nature of the dialogue within the minority community, the need for openness to challenge and change in that dialogue, and the role that might be played by accommodations in supporting and encouraging this sort of conversation.
The Need for Challenge: Democratic Theory and Models of Equality In this section, I will argue that the dialogic model of democracy requires attention to the role of disruption and challenge in preventing the reintroduction of domination. Such challenge is crucial and cannot simply be assumed – incentives and support for it must be built into the democratic structure. The conclusion I will draw is that one important aim of accommodation in multicultural societies should be to provide support for such challenge by vulnerable internal minorities within the community’s dialogue. 22
In a dialogic model of democracy, the purpose of democratic politics is to form a political community in which people can seek a way forward together.23 Participants engage in a collective process of deliberation to seek this path. Their role is to bring their particular perspectives and expertise to this deliberation and to listen carefully to the contributions of the other deliberators so as to reach agreement on the best path forward. A number of feminist theorists, including Bonnie Honing, Jane Mansbridge, and Nancy Fraser, have recognized the dangers of a dialogic or deliberative model of democracy that does not reckon seriously enough with the ineradicability of power.24 Difference is inevitable and there is a constant pressure for people with power to use that difference to generate or reinforce hierarchy. The risk of a
21 Monique Deveaux has given the most attention to this issue in her essay, A deliberative approach to conflicts of culture in MINORITIES WITHIN MINORITIES, supra n. at 340. In this chapter, she offers a clearer statement of her conviction that democratic processes must apply within the cultural minority community and not just between that community and the larger society. Id. at 343. She also offers some guidelines for the dialogue that are useful for internal as well as external purposes. Id at 350-51 (non-domination, political equality, and revisability.) Nonetheless, the example she uses to illustrate the process is still an external conversation, rather than the on- going, internal process of cultural construction, interpretation, and implementation. Id at 356-61. In addition, she does not consider the accommodation itself as a mechanism for encouraging internal dialogue. This essay is intended to add those missing elements. 22 The argument in the next three paragraphs is taken from Susan H. Williams, Equality, Representation, and Challenge to Hierarchy: Justifying Electoral Quotas for Women in CONSTITUTING EQUALITY, supra n. 6. In that chapter, I use the element of challenge to supplement the substantive model of equality and explain how this modified equality argument answers the most difficult objections to electoral gender quotas. 23 In some versions, the goal of this deliberation is to seek the common good of the community. See Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 8 (1988). In other versions, the dialogic process itself is the goal, understood as “free and reasoned deliberation among individuals considered as moral and political equals.” Seyla Benhabib, Toward a Deliberative Model of Democratic Legitimacy in DEMOCRACY AND DIFFERENCE: CONTESTING THE BOUNDARIES OF THE POLITICAL 67, 68 (Seyla Benhabib, ed.) (Princeton University Press 1996). I intend my description of the category to cover both versions. 24 See Bonnie Honing, Difference, Dilemmas, and the Politics of Home in DEMOCRACY AND DIFFERENCE, supra n. 20 at 257-77; Jane Mansbridge, Using Power/Fighting Power: The Polity in DEMOCRACY AND DIFFERENCE, supra n. 20 at 46- 66; Nancy Fraser, Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy in HABERMAS AND THE PUBLIC SPHERE 123 (Craig Calhoun ed.) (MIT Press 1993).
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deliberative model is that we will too quickly assume that our deliberative processes are free of coercion (when they are not) or that our dialogue has resulted in a good that is common (when it is not.) Our model of democracy must include strong and explicit attention to the processes through which our ideals fail or are subverted.
Think about an analogy to efforts to cure a particular endemic disease. The primary concern, of course, is to initiate the public health reforms needed to eliminate the disease, perhaps cleaning up water supplies or providing inoculations. But it is also essential to ensure that you have good mechanisms for detecting the reemergence of the disease. And it is necessary to be vigilant about the possibility that your public health efforts may themselves be generating problems, such as antibiotic resistance or damaging side effects. Moreover, these two projects may not necessarily overlap: the programs necessary to eliminate the disease may not by themselves provide you with adequate warning about the risks of reemergence or side effects. I want to suggest that dialogic democracy is like the goal in a disease eradication plan. It is a picture of the type of society we hope to create and a model of the legal and political institutions that might help to get us there. I am arguing that we need to add to this model a strong element analogous to the watchdog function in the disease detection program: a part of the model devoted to recognizing and calling attention to the reemergence of coercion or oppression.
The focus here is on the act of recognizing and resisting evil rather than on constructing something good, because evil will inevitably reemerge. Even our best plans for achieving democracy will fail in at least three ways. First, the means we choose will never be perfectly effective, leading to failures of implementation. Second, our understanding of our ideals will always be incomplete and imperfect, leading to failures of conception. And third, people with power will always try to cripple the reforms intended to challenge their power, or even to pervert the reforms into a mechanism for reinforcing their power. The insidiousness of power is such that we can never guarantee that our reform efforts will not become the vehicles for the very inequality and oppression they were designed to combat.
Challenge and the Problem of Vulnerable Internal Minorities The basic claim I wish to make is that deference and accommodation by the majority culture to the practices of a minority group is more warranted as the group demonstrates more willingness to carry on an internal dialogue in which such challenge is possible. And, it follows that constitutional provisions providing for the possibility of such accommodation should be designed and interpreted in ways that support this goal. Taking this approach is not the same as asking whether the cultural practices that are at issue in a particular accommodation claim are consistent with liberal individual rights. Here we are focused not on the particular practices at issue in the accommodation, but on the methods through which such practices are created, interpreted, and implemented. If those methods, and the background conditions under which they operate, allow for meaningful challenge, then the larger society should offer a greater degree of accommodation to the community’s practices, even if those practices include some illiberal features.
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I suggest that the larger society should approach issues of accommodation by thinking about three different mechanisms for encouraging and supporting internal challenge. First the larger society can increase the capacity for challenge by internal minorities by giving them recognition and social capital. Second, the larger society can increase the capacity of internal minorities by redistributing practical resources, such as economic power and education, to them. And third, the larger society can increase the opportunity for internal minorities to challenge hierarchy within their own communities by making accommodation conditional on the adoption of internal dialogic practices that provide opportunities for such challenge. In all three of these projects, the larger society must take care to recruit the support of traditional leaders as much as possible so as to avoid a backlash against internal minorities who are seen as collaborators with the larger society. In the larger paper of which this argument is a part, I offer concrete examples of such mechanisms and apply this approach to the issue of customary law in Liberia, a country in which I have acted as a constitutional advisor.
Conclusion For the purposes of this short paper, however, I simply wish to use this argument to illustrate the usefulness of paying attention to gender and to feminist theory in thinking about constitutional design. The attention to gender issues foregrounds aspects of a situation that might otherwise be overlooked (such as the problem of vulnerable internal minorities) and the attention to feminist theory provides alternatives to traditional approaches that open new possibilities (such as a focus on internal challenge as the basis for a new approach to accommodation.) Constitutions at all levels – from the details of particular provisions to the theoretical foundations of the document – can benefit from an analysis that asks about gender equality.
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Women and the Equality Guarantee of the Canadian Charter of Rights and Freedoms: A Recap and Critique
Margot Young Associate Professor Faculty of Law University of British Columbia Canada
In 1982 Canada enacted the Canadian Charter of Rights and Freedoms,1 a key section of which sets out a guarantee of equality rights. Section 15, this equality rights provision, came into force three years later—a time lag tailored to allow governments time to put their legislative house in equality order. Since April 17, 1985, then, Canadian courts have struggled with a constitutional commitment to equality. Over the space of 24 years the Canadian Supreme Court has seen consensus emerge and disappear repeatedly. Equality has become, in the words of the current Chief Justice of the Canadian Supreme Court Beverly McLachlin, “the most difficult right.”2
Women and Section 15
Hopes were high among equality-seeking activists that the entrenchment of equality rights in the Constitution would effect meaningful change and transformation of Canadian society. The drafting process around section 15 was lengthy and marked by clear recognition of the inadequacy of legislative protection provided by the Canadian Bill of Rights3 and the experience south of the border with the Equal Protection Clause of the American Bill of Rights. The process was also remarkable for the involvement of various women’s groups in the politics of drafting. From the start, the Canadian women’s movement had an investment in the success of section 15 as a tool for advancing women’s equality in Canada. The Women’s Legal Education and Action Fund (LEAF) was formed in 1985 with the purpose of shepherding the interpretation of section 15 in a feminist direction. LEAF has been a major presence in equality litigation, influential on a number of key issues.
The path hewn by litigation under section 15, however, has been tortuous and far from clearly favourable to Canadian women’s equality aspirations. The Supreme Court has had difficulty articulating a doctrinal test that sticks. Feminist scholarship critical of the Supreme Court’s handling of section 15 is legion and successful sex discrimination claims are rare.
1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. 2 Hon. Beverley McLachlin, “Equality, The Most Difficult Right” (2001) 14 S.C.L.R. (2d) 17. 3 Section 1(b), S.C. 1960, c.44.
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Andrews4 was the first constitutional equality case considered at the Supreme Court of Canada. The case involved a challenge by a white, male lawyer of South African citizenship to the requirement of Canadian citizenship for admission to the practice of law in the province of British Columbia. Andrews set in place a number of important features of the template for equality challenges. First, Andrews rejected the “similar-situated” test and explicitly stated that the equality guaranteed by section 15 was “substantive” equality. Second, Andrews stated that the test for discrimination was effects-based and that, consequently, intent to discriminate need not be shown. Finally, Andrews established a test that distinguishes different treatment from discriminatory treatment and that highlighted a grounds-based approach to discrimination:
…discrimination may be described as a distinction…based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.5
The unanimity of Andrews soon dissolved and the Court fractured three ways in a series of equality decisions released in 1995.6 It was not until 1999, in a case called Law v. Canada,7 that a united court reemerged. Law, an age discrimination case, resulted in an elaborate framework for section 15. The framework emphasized recognition of essential dignity as the purpose underlying protection of equality and set out four contextual factors critical to finding discrimination.
The Law test has resulted in tremendous criticism. Its complexity, the too general and individualistic nature of essential dignity, and the overlap between the contextual factors and what is already considered in section 1 (the justificatory provision of the Canadian Charter) are among the faults commentators discuss. It has not gone unnoticed, as well, that discrimination claims under the Law test tended much more often than not to be unsuccessful. The promise a constitutional guarantee of equality once held out seemed mired in doctrinal intricacies, judicial verbiage, and neo-liberal ideology.
Last year, in explicit response to these criticisms, the Supreme Court issued a new formulation under section 15. R. v. Kapp8 is a case involving challenge to an aboriginal specific communal fishing licence. In this case, the Supreme Court reinstated the Andrews’ template, summarizing
4 Andrews v. Law Society (British Columbia), [1985] 1 S.C.R. 143 (Andrews). 5 Andrews, at 174. 6 Egan v. Canada, [1995] 2 S.C.R. 513; Miron v. Trudel, [1995] 2 S.C.R. 418; Thibaudeau v. Canada, [1995] 2. S.C.R. 627. 7 Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. 8 R. v. Kapp, [2008] 2. S.C.R. 483.
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it as a two step test: (1) does the law create a distinction based on an enumerated or analogous ground?; (2) does the distinction create a disadvantage by perpetuating prejudice or stereotyping? The status of the Law test is unclear. Essential dignity is supplanted as the primary purpose of section 15 but it is not clear what stands in its stead.
Cases following Kapp provide no further elaboration of what claimants under section 15 must show. Clearly the newly stated Andrews test is central. Worth noting, however, is that the Law test and factors appear, in practice, to have been tossed out. They are simply no longer referred to in the post-Kapp Supreme Court cases. But what fully replaces them is unclear.
It is clear that Canadian constitutional equality jurisprudence is again at a crossroads. While the pathway is not yet set out, the barriers past cases throw up are obvious. The rest of this note briefly details some of these.
Key Jurisprudential Issues for Women’s Equality
1. Substantive Equality
In Andrews, the Supreme Court of Canada embraced the ideal of “substantive” equality as the animating concept underlying section 15. This commitment has been repeated in almost every section 15 case that follows. Yet, the results of these cases are often far from what feminist scholars understand to be required by substantive equality. The Court has been particularly weak on embracing social and economic dimensions to equality and the impact material deprivation can have on individual dignity. The recent case of Kapp described above hints ominously that state obligations under the general anti-discrimination provision of section 15(1) may be merely negative and not affirmative:
Under s. 15(1), the focus is on preventing governments from making distinctions based on the enumerated or analogous grounds that: have the effect of perpetuating group disadvantage and prejudice; or impose disadvantage on the basis of stereotyping. 9
Were the Court to confirm this in subsequent cases, this would be at significant odds with a commitment to substantive equality. It will be important for the Court to remind itself of what substantive equality involves by way of state action and a deep appreciation of material context.
2. Claimant and Comparator Groups
A critical task under equality analysis has been the choosing of the attributes or differentiating features that are relevant to the equality claim at issue. Equality is treated as an unavoidably comparative concept and thus requires the court to choose both the parameters of the
9 Kapp, para. 25 (emphasis in original).
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claimant that matter to the claim and the characteristics of the group to which the claimant is contrasted in looking for differential and, ultimately, discriminatory treatment. The Supreme Court has stated that the claimant can generally choose the comparator groups but that the Court may “refine the comparison presented by the claimant where warranted.”10 Three connected challenges arise in relation to this part of an equality argument.
First, how the claimant and comparator groups are cast, and thus the contrast their comparison sets up, can render visible or invisible the discrimination harm of which the claimant complains. Thus in the case of Gosselin11 the claimant’s sex and social assistance recipient status were read out of the equality analysis. The case was understood as simply a claim of age discrimination and the gender specific harms, for example, experienced by young women limited to $170 a month social assistance payments were ignored by the majority decision. The result was that the contextual factors considered in the discrimination complaint were “thinner” and less reflective of the actual harms at issue.
Second, Supreme Court section 15 jurisprudence has always required that discrimination be along a ground enumerated in the text of section 15 or a ground analogous to an enumerated ground. Yet, the Court has not always shown insight into how treatment along an enumerated or analogous ground can be difficult to discern. For example, the manifestation of gender in Canadian society is often subtle and frequently is revealed only through rigorous challenging of accepted truths. Sex equality advances often have come through recognition that traits or distinctions not traditionally thought of as gender-based are, in fact, expressions of gender. It took time, for example, for Canadian law to recognize that discrimination based on pregnancy is really sex discrimination.12 The Court’s section 15 decision in Trociuk13 repeats a failure to understand the complex playing out of gender relations (this time in relation to familial relations) as part of the picture at the centre of the complaint.
Third, as Patricia Williams writes, equality analysis risks recasting “the general group experience [of the marginal] as a fragmented series of specific, isolated events rather than a pervasive social phenomenon….”14 The further away from the mainstream, or the privileged norm, a claimant is, the more difficult it has been for the Court to see that it is the norm, not the claimant, in which the fault for inequality lies. In part, this is because the most marginalized will be least likely to find a convincing comparator group against whom their equality harms show up. Simply put, the equality guarantee has been at its most powerful and libratory when the issue involves the different treatment of the (mostly) same. The more different a claimant is, the more justified their different and disadvantaging treatment seems.
10 Law, at para. 57. 11 Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429. 12 Brooks v. Canada Safeway Ltd., [1989], 1 S.C.R. 1219. 13 Trociuk v. British Columbia (Attorney General), [2003] 1 S.C.R. 835. 14 Patricia Williams, The Alchemy of Race and Rights: Diary of a Law Professor (Harvard: Harvard University Press, 1991) at 13.
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Hodge15 is a recent Supreme Court case involving a challenge to federal legislation that denies provision of a survivor pensions to former common law spouses. Because the claimant and other ex-common law spouses had no straightforward comparator among married individuals, the Court failed to acknowledge the specific harm of which the claimant complained. The uniqueness of the situation the claimant found herself in meant that there was no obvious comparison available. The case of Auton16 also involves a uniquely situated claimant group. Here a challenge of behalf of preschool-aged autistic children based on the province’s failure to provide funding for emergent treatment is defeated by casting the claimant group as so exceptional that there is no differential treatment.
3. They Know It When They See It: The Delphic Approach
Case law since Kapp—while slim—is remarkable for the sparseness of discussion of equality claims. The Court has left the one extreme of the Law test—with its multi-staged and lengthy equality analyses—for equality discussions that are brief and in some cases merely conclusory. In a very recent Supreme Court decision, A.C., that dealt with a state-ordered blood transfusion against the wishes of a minor, Chief Justice McLachlin in a concurring judgment succinctly dismissed the equality claim as follows:
In the present case, however, A.C.’s claim must fail because the distinction drawn by the Act between minors under 16 and those 16 and over is ameliorative, not invidious. First, it aims at protecting the interests of minors as a vulnerable group. Second, it protects the members of the targeted group — children under 16 — in a way that gives the individual child a degree of input into the ultimate decision on treatment. In my view, this is sufficient to demonstrate that the distinction drawn by the Act, while based on an enumerated ground, is not discriminatory within the meaning of s. 15.17
No other justifications of or reasons for this conclusion about the section 15 claim are given. The challenge, then, of this new stage in Canadian constitutional equality analysis is to push the Court to reach beyond individual judges’ preconceptions of appropriate social and economic ordering. Doctrinal elaborations cannot guarantee that this happens. But they can force more self-conscious reasoning, with the glimmer of possibility for transformative insight that leads a judge beyond her own experience and common sense understanding of the world.
Conclusion
In conclusion, then, three features of past and current equality jurisprudence are worrisome. First, the density and variance of sex in our lived experiences too often lies unexplored and unacknowledged. Second, the most marginalized and denied have yet to be recognized as
15 Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357. 16 Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2003] 3 S.C.R. 657. 17 A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, para. 152, per McLachlin C.J.
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central to what ought to count as “normal” and such continued exclusion is achieved in equality doctrine significantly by the device of establishing comparator groups. Finally, despite repeated reformulations of the test to be deployed under section 15 of the Canadian Charter, it appears that the Court’s own ideological blinkers continue to be the most powerful predictor of success. Judges pull on underlying assumptions about key notions and norms such as choice, consent, liberty, the private, the natural, agency, merit (to name a few) to shape equality decisions. This prevents the kind of critical challenge to current distribution of symbolic and material power that a truly transformative sex equality analysis demands.
Appendix 1
Equality before and under law and equal protection and benefit of law
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Affirmative action programs
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Appendix 2
The Law Test.
1) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? 2) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? And 3) Does the differential treatment discrimination by imposing a burden upon, or withholding a benefit from the claimant in a manner that reflects the stereotypical application of presumed group or personal characteristics, or
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that otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?
Harm to human dignity is determined by examining four contextual factors:
1. pre-existing disadvantage; 2. correspondence between the grounds and the claimants’ actual needs, capacities, and circumstances; 3. ameliorative purposes or effects; 4. the nature and scope of the interest affected by the impugned law.
In Law, the Supreme Court states that this is an open list. However, no new contextual factors have yet been added to this list in subsequent cases.
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Plenary IV
Constitutional Adjudication and Democracy
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The Role of the Courts in Strengthening Democracy at the Local Government Level in Nigeria
Associate Professor Joash Amupitan* University of Jos Nigeria
INTRODUCTION
The courts, especially the superior courts1, have contributed significantly to the growth of democracy in Nigeria. Nigerian democracy has been variously described as ‘nascent’ and ought to be nurtured by the political operators and actors to maturity like most advanced democracies of the world taking into consideration local circumstances. However, after several attempts at democracy, it is obvious that the political operators in Nigeria have not yet leant any lessons from the failures of the past. The democratic laws and institutions in Nigeria instead of promoting the best and demoting the worst, in line with the ‘economic model of politics’2, have drifted to the reverse thereby raising serious concern about the viability of democracy in Nigeria.
Admittedly, the courts in Nigeria have risen to the occasion by saving the country’s bourgeoning democracy from total collapse. This is evident from several decisions of the courts reviewing legislative and executive actions that are contrary to the provisions of the Constitution. The courts have made radical pronouncements on some constitutional issues such as conduct of election, impeachment procedures, revenue allocation, division of powers, fundamental rights political parties and local government which have gone a long way in strengthening democracy in Nigeria. We are concerned here with the aspect which deals with the local government system.
THE ROLE OF THE COURT IN NIGERIA
Section 6 of the 1999 Constitution vested judicial powers of the Federation on Federal Courts and the judicial powers of the states on the state courts established under the Constitution. The judicial powers shall extend to all inherent powers and sanctions of a court of law and shall extend to all matters between persons or between government or authority and to any person in Nigeria and to all actions and proceedings relating thereto for the determination of any question as to the civil rights and obligations of that person. In the case of Ransome-Kuti v. Attorney General of the Federation3, it was held that by virtue of section 6(6)(b) of the 1979 Constitution (same as 1999 Constitution), the courts established by the Constitution can freely
1 The Superior Courts in Nigeria starts from the High Court to Court of appeal and then to the Supreme Court which is the highest court. 2 See Robert Cooter. “Who Gets on Top in Democracy? Elections as Filters”. Supreme Court Economic Review, Vol. 10, The Rule of Law, Freedom, and Prosperity (2003), pp. 127-141 for further details on the economic model of politics.
3 (1985) 2 NWLR, part 6, 211.
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adjudicate on any matter in controversy between a citizen and a government and between governments even where such actions are prohibited under the common law.
The courts in Nigeria are therefore armed with constitutional powers to adjudicate between individuals and between individuals and government and even between government/ government agencies. There are also provisions guaranteeing the fundamental rights of individuals and vesting in the courts the powers to protect those rights4. Moreover, section 4(8) of the 1999 Constitution which vested legislative powers on National Assembly and States Houses of Assembly forbade the legislative bodies from making laws that would oust the jurisdiction of the courts. The above provisions have strengthened the courts in performing its arbitral role among the various political actors thus contributing in making democracy work in Nigeria.
THE LOCAL GOVERNMENT SYSTEM
Nigeria operates a federal system. The 1999 Constitution was modeled after the American Presidential system which recognized three tiers of government. We have the Federal Government, the State Government and the Local Government. Local Government has a chequred history and it is government at the grass root and is one of man’s oldest institutions. The earliest form of Local Governments existed in the form of clan and village meetings. Democracy itself existed, originated and developed along the lines of local governance initiatives in the ancient Greek city states. Local governance was developed along people’s culture and expectations.
The 1999 Constitution of Nigeria provided for a full fledge democratic Local Government system. Section 7(1) of the Constitution provides that the system of Local Government by democratically elected Local Government Councils is guaranteed under the Constitution and accordingly, the Government of every State shall, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils. The 1999 Constitution did not only give the numbers of all the local government areas in Nigeria but also clearly stated the names of all the Local Government Areas in all the States in Nigeria. The implication is that all the Local Governments in Nigeria are recognized by name and are vested with juristic personality by the Constitution5.
Regrettably, despite the fact that the Local Government system is constitutionally provided for as a third tier and autonomous of the other two, the Federal and State Governments in Nigeria have unwholesomely interfered in the operations of the local government system such that in some states, the local governments are reduced to a department of the state government. In most cases their statutory revenue allocation from the federation accounts are withheld
4 See Chapter Iv of the 1999 Constitution. 5 See section 3(6) of the 1999 Constitution. This position may be contrasted with the position under the 1979 Constitution where the areas named as forming the area of each state were not explicitly stated to be local government areas. See also Nwabueze B.O. Federalism in Nigeria under the Presidential Constitution. 2nd ed. London: C. Hurst and Co. Publishers Ltd, 1980 at 131-132.
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unlawfully by the State Governments or Federal Government; Local Government Councils are arbitrarily dissolved without allowing them to serve out their constitutional tenure. All these could result into serious political chaos and the constitute serious threat to democracy in Nigeria.
The courts have intervened severally to declare some of the actions of the Federal Government and State Governments unconstitutional, null and void. This has greatly helped to preserve governance at the grassroots. We can give instances of such judicial intervention-
The Supreme Court in Attorney General, Lagos State v. Attorney General of the Federation6 declared the Local Government Area Law No 5 of 2002 made by Lagos State Government in which 57 local governments were created by breaking the existing 20 Local Government areas recognized under the 1999 constitution into 57 Local Government Councils as unconstitutional null and void. The Law in effect abolished Local Government Areas created under the 1999 Constitution by altering their names, adjusting their boundaries and dividing them into smaller units. The Law further vested the governor with powers to appoint persons to administer the affairs of the newly created local government areas.
The Supreme Court also held as null and void the decision of the Federal Government to withhold statutory allocation due and payable to the Lagos State Government in respect of the 20 Local Governments. Before the decision of the Supreme Court on this matter, very serious tension was already generated between the Lagos State Government led, as at that time, by Chief Bola Tinubu and the Federal Government led by President Olusegun Obasanjo. Both were of the same tribe but were in different political parties. Even after the Supreme Court decision, the Federal Government still refused to release the funds to the Local Governments. Therefore, for about 3 years there was no statutory allocation to the Local Governments in that state.
The Supreme Court declared the Electoral Act made by the National Assembly in 2001 as null and void in the case of Attorney General of Abia State & 35 Ors v. Attorney General of the Federation7. The Act purported to legislate on the tenure of the Local Governments in Nigeria whereas that power was constitutionally reserved for the states Houses of Assembly.
The Court of Appeal in Attorney General Plateau State v. Goyol and Ors8 and Attorney General Benue State v. Umar and Ors9 declared the actions of the Plateau State Governor and that of Benue State Governor respectively in dissolving the Local Government Councils in those States as unconstitutional, null and void. The Laws made by the two States Houses of Assembly which authorized the Governors to impede the smooth running of the Local Government Councils were also declared to be
6 (2004) 18 NWLR Part 904, 1. 7 (2002) 6 NWLR part 763, 264. 8 (2007) 12 NWLR pt 1059, 57 9 (2008) 1 NWLR pt. 1068, 311
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unconstitutional, null and void. The actions of the two state governments led to serious tension between the state governments and the elected council chairmen and councilors who formed themselves into associations to resist the dissolution.
Moreover, in the case of Attorney General Abia State & 2 Ors v. Attorney General Federation & Ors10, the Supreme court held that the powers of the National Assembly over funds accruable to the Local Government Councils in Nigeria under sections 7(6) and 162(5) of the 1999 Constitution is only limited to allocation of such funds and it did not extend to monitoring such funds. Monitoring is a post-allocation matter and the National Assembly had no power to make such laws. Therefore, the Monitoring of Revenue Allocation to Local Government Act which sought to monitor the revenue allocation to the local government councils was held to be unconstitutional.
The Supreme Court also pointed out in Attorney General, Lagos State v. Attorney General of the Federation 11 that the creation of additional local government in Nigeria would amount to an amendment of the constitution. Thus no State House of Assembly could on its own create additional local government without involving the National Assembly which would then set the necessary machinery in motion for the amendment of section 3(6) of the 1999 Constitution.
CONCLUSION It is seen from the above that the Nigerian Courts have been alive to its constitutional responsibilities as far as the protection of democracy is concerned even at the grass root level. However, there are several impediments to the exercise of the judicial powers by the court. For instance, there are cases of disobedience of the court’s orders by the executive and even the legislatures. A good example is the case of Attorney General, Lagos State v. Attorney General of the Federation. Other impediments are the lack of independence of the courts and absence of security of tenure. Nonetheless, the courts in Nigeria have performed more than any other organ or person in protecting citizen’s rights and ensuring that the Nigeria politic is not a battle of might but played in accordance to the rule of the game.
10 (2006) 7 SCNJ 1. 11 Supra.
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Constitutional Adjudication and Democracy: One Voice Or Many?
Michael Coper1 Australian National University Australia
Charles Evans Hughes’ pithy remark in 1907 that ‘the Constitution is what the judges say it is’2 sparked a vigorous, and probably never-ending, debate about the tension between the objective and subjective elements in judicial law-making. In contested cases of constitutional interpretation in a multi-member final appellate court, can there be one ‘right’ view, produced by the objective application of an external standard, or is the prevailing view merely the accidental consequence of the aggregation of individual subjective opinion to form a view that happens to have majority support?3
I am going to leave hanging this large jurisprudential perennial, and devote this short (IALS- mandated 3-5 page) paper to an intriguing subset of the question. Whether the judges are discovering an objective truth or whether the legal system merely deems it to be so by giving authoritative effect to the opinion of the officials charged with the task of resolving disputed questions,4 should the judges speak with one voice or many?
My focus here is not so much on the permissibility5 or desirability6 of dissent, but rather on the question of whether the view of the court, or a majority of the court, should be expressed in a single consolidated opinion of the court, or rather in a multiplicity of individual opinions.7
1 Dean and Robert Garran Professor of Law, Australian National University College of Law, Canberra, Australia; Member, IALS Governing Board. 2 Addresses and Papers of Charles Evans Hughes (1908) 133, 139 (cited in Fred R Shapiro, The Oxford Dictionary of American Legal Quotations (1993) 216). Interestingly, Hughes, later a Chief Justice of the United States Supreme Court, became concerned that this remark was widely taken to be highly critical of the Court, when he purported merely to be referring to the Court's essential function: The Autobiographical Notes of Charles Evans Hughes (1973) 143-144 (also cited in Shapiro, op cit). 3 See Michael Coper, Encounters with the Australian Constitution (1987) 400-422; Tony Blackshield, 'Realism' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 582-585. 4 United States Supreme Court Justice Robert Jackson captured this beautifully in his well-known aphorism that ‘we are not final because we are infallible, but we are infallible only because we are final’: Brown v Allen (1953) 344 US 443, 540. 5 The UK’s Privy Council did not allow dissent until it bowed to pressure in 1966 from Australian Chief Justice Garfield Barwick: see Tony Blackshield, Michael Coper and Jack Goldring, 'Privy Council' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 560. 6 The theory and practice of dissent has been comprehensively explored in Australia by Andrew Lynch: see, for example, 'The Intelligence of a Future Day: The Vindication of Constitutional Dissent in the High Court Australia 1981-2003' (2007) Sydney Law Review 195; 'Does The High Court Disagree More Often In Constitutional Cases? A Statistical Study Of Judgment Delivery 1981-2003' (2005) 33 Federal Law Review 485; 'Taking Delight in Being Contrary, Frightened of Being a Loner or Simply Indifferent - How Do Judges Really Feel About Dissent?: Cass
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The very posing of this question may come as a surprise to my IALS colleagues at this conference. My impression — though I stand willing to be corrected (the opportunity for which is a major benefit of IALS gatherings) — is that most appellate courts around the world do not exhibit the latitude for individual self-expression that has been an enduring feature of the modus operandi of the High Court of Australia for over a century.8 Yet the practice in Australia has, in some quarters, been a cause for concern. As a consequence, I am currently engaged with some ANU colleagues in an empirical study, commissioned by the National Judicial College of Australia, of what the consumers of judicial opinions9 think of the relative merits of multiple opinions as against an opinion of the court, or at least of a majority of the court.
The project was sparked by a concern that multiple opinions in support of a common outcome are a recipe for uncertainty and lack of clarity in the law, and come at a social and economic cost. Yet there are robust arguments on both sides, and I use this paper to sketch out those arguments in broad outline, concluding with some thoughts on where the issue sits in the context of the conference theme of constitutional adjudication and democracy.
In favour of the collective opinion The arguments for a consolidated opinion of the court, or a majority of the court, are clear enough. Clarity, and consequently certainty, are best served, so it is argued, when the court speaks with one voice. Litigants know where they stand, lower courts know what they must follow, lawyers know how to advise their clients, students more easily know what the law is, and the community has a knowable framework of laws within which to go about its business. Moreover, cases can be disposed of more efficiently, and more cases can be dealt with in a given time frame. To state the same argument from the other side, a multitude of ways of stating the same conclusion leaves the law in a state of doubt, delivers a much more onerous task to those who have to master it, and slows down the whole process of case disposal.
In favour of multiple opinions On the other hand, there are powerful arguments in favour of each judge stating his or her view in a separate, individual opinion.
Sunstein's Why Societies Need Dissent' (2004) 32 Federal Law Review 311; 'Is Judicial Dissent Constitutionally Protected?' (2004) 4 Macquarie Law Journal 81; 'Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia' (2003) 27 Melbourne University Law Review 724; 'Dissent: Towards a Methodology for Measuring Judicial Disagreement in the High Court of Australia' (2002) 24 Sydney Law Review 470. 7 See generally Michael Coper, 'Joint Judgments and Separate Judgments' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 367-369; also 'Concurring Judgments', 129-130. 8 The High Court of Australia — confusingly called the High Court rather than the Supreme Court of Australia, evidently to distinguish it from the Supreme Courts of the States within the Australian federation — was established in 1903, and has unambiguously been Australia's final appellate court since the abolition of Privy Council appeals, a staged process that was completed in 1986. 9 Lower courts, legal advisers, academic lawyers, the media, litigants, and of course citizens at large.
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First, the certainty claimed for a single consolidated opinion is often illusory. The achievement of agreement amongst powerful individual judicial minds may require a degree of compromise that glosses over issues perhaps peripheral to the instant case but of potential importance to the future development of the law. Experienced legal advisers sometimes prefer to know the nuance of individual opinion in order to better predict the course of future development, even if that necessitates a greater investment of time and effort.10 Academic lawyers may similarly appreciate the richness of the raw material that comprises the basis of their scholarly analysis and speculation. (Trial judges, though, will most likely spurn subtlety and yearn for unvarnished clarity to inform their rulings and jury directions and thus render them less vulnerable on appeal.)
Secondly, the giving of reasons by each individual judge is often seen as the best assurance that the judge has truly and conscientiously turned his or her mind to the question and provided a transparent and examinable justification for his or her decision. The judicial oath may even be invoked to demand such transparency. Collective opinions may be a cover for laziness or even undue influence; Thomas Jefferson certainly thought so in 1820 when he described the United States Supreme Court as ‘huddled up in a conclave’ and characterized Chief Justice John Marshall as ‘a crafty Chief Justice’ who, ‘with the silent acquiescence of lazy or timid associates,…sophisticates the law to his own mind by the turn of his own reasoning’.11 In other words, whatever the efficiency gains of collective decision-making, in the sphere of pronouncements by final appellate courts the practice may be seen to threaten the very integrity of the judicial process.12
Thirdly, aficionados of constitutional interpretation well understand the endemic complexity and subtlety of the task, and the wide range of principles and values competing for attention, and will rarely be surprised at the diversity of opinion this produces. If these differences are subsumed into collective opinions, that may distort the world as it really is. We may need to accept the wisdom of Oliver Wendell Holmes that ‘certainty generally is illusion, and repose is not the destiny of man’.13
10 Less defensibly, there is a consequent risk of greater cost to the client, unless advisers treat keeping up to date with the law as their general responsibility or defray the cost over their practice as a whole. 11 Thomas Jefferson, Letter to Thomas Ritchie, 25 December 1820, in Paul Ford (ed), Writings of Thomas Jefferson (1899) 10:171, cited in Shapiro, above n 2, 307. Similarly, Australian Chief Justice John Latham observed in 1950 that ‘I am now finding it possible to adopt (the method of assigning one judge to write the judgment of the Court) more frequently, but it has to be watched in order to prevent a tendency which, I suggest, has at times been most odious in the Privy Council, to leave it to one judge to do all the work and really make up the mind of the Court’: correspondence from The Papers of Sir John Latham, cited in Coper, above n 7, 368, and searchable at http://catalogue.nla.gov.au/Record/3662490. 12 I am speaking here of domestic appellate courts, and of judicial independence in the sense of the independence of the judges from each other. It may be that, in relation to at least some international tribunals, the independence of those tribunals from external pressure (for example, from member states) is, by contrast, better protected by a collective view of the tribunal and non-disclosure of individual opinion. 13 Oliver Wendell Holmes, 'The Path of the Law' (1897) 10 Harvard Law Review 457, 465; Collected Legal Papers (1920) 181.
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How important are reasons anyway? Of course, this debate makes a number of assumptions. First, it assumes that, in the tension between the competing demands of process and outcome, between the need for reasons and the imperative for decision, reasoning and justification have an important role to play.14 Some societies — especially those in the western common law tradition — may value this more highly than others. Some may prioritise execution over deliberation. I will be interested to discover at this IALS conference to what extent this tension is culture-bound, and how it plays out across the range of decision-making processes, not just in the judicial sphere but also in legislative and administrative processes and in other facets of public and private governance.
Variations even within a shared tradition Secondly, even within the common law tradition, there is a wide spectrum of ways in which the opinions of final appellate courts find expression. Despite Jefferson’s angst about the dominance of Chief Justice Marshall, pressure of business long ago entrenched in the United States Supreme Court the practice of an opinion of the court — moderated frequently by separate pluralities and occasionally by individual glosses, but with the attention of commentators grabbed mainly by the strong tradition of dissent — while in Australia, despite an irregular pattern of joint judgments of two or more judges, a single opinion of the court, or of the majority, is by far the exception rather than the rule.
In part, this is because there is no formal procedure in Australia analogous to the conferencing of the United States Supreme Court judges to allocate the opinion writing;15 but does the practice drive the culture, or the culture drive the practice? Certainly, in the High Court of Australia there is a well-entrenched ethos of rugged individualism, and it will be interesting, when the results come in of our survey of the consumers of High Court judgments,16 to see not only whether this ethos is seen to be sustainable, but also whether it is seen to be the product of what might be called the ‘good’ justifications set out above, or rather of some less attractive personality traits such as arrogance, stubbornness, or self-indulgence.
Balancing competing goals in our constitutional ecosystems In truth, the tension between collectivism and individualism in judicial decision-making in final appellate courts reflects our desire to achieve a range of competing goals simultaneously. We value collective opinions because they represent consensus, clarity, certainty, and stability, whereas we value individual opinions because we associate them with individual responsibility, fluidity, difference, diversity, and more easily detectable harbingers of change. I suppose that
14 See Tony Blackshield, 'Judicial Reasoning' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 373-376. 15 See Troy Simpson, 'Conferences' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 130-133. More recently, there has been conferencing of a sort: see Michael Kirby, 'Ten Years in the High Court: Continuity and Change' (2005) 27 Australian Bar Review 4, 15-16. 16 The results of a pilot study, involving interviews with a random selection of lower court judges, senior practitioners and senior academic lawyers, are to be presented immediately after this IALS conference, at the Australian Legal Convention in Perth, Western Australia, on 19 September 2009.
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any constitutional ecosystem will seek to strike a balance between these goals, and will achieve a balance that both varies over time and differs from that achieved in other systems.17
It is a balance we are all familiar with, though we tend to think about it more in the macro- context of our legal system and its panoply of institutions than in the micro-context of how our final appellate court finds its own style18 and modus operandi. It is a balance between certainty and flexibility, between continuity and change, between consensus and diversity, between corporatism and individualism, between accountability and independence, between expedition and due deliberation, perhaps even between skepticism and faith. Understanding how we react to and evaluate that balance may need the insights of a range of other disciplines such as philosophy, sociology and psychology.
One voice or many in the context of democratic theory Where, then, does this issue of whether a final appellate court should issue the product of its collective will or tolerate individual idiosyncrasy sit in the context of constitutional adjudication and democracy?19
The most familiar, the most fundamental, and the most enduring debate about constitutional adjudication and democracy is of course the debate about the legitimacy of judicial review: what justifies the second-guessing, by unelected judges, of the legislative and executive actions of our elected officials?20 As we know, the answer lies partly in the abstract notion of ‘the law’ — teased out by the high priests of ratiocination and given authoritative force by the state. In this kind of arrangement, there is, however, no room for mere judicial fiat; the pronouncements of the high priests must be persuasive.
Which, then, is the more persuasive statement of the law: the fuzzy compromise of a judicial collective, or the elusive common ground embedded in individual variations?
I dare say there is no single right answer to this question or any simple resolution of the dilemma. The mere fact of having a multi-member court, coupled with the expectation of (and arguably duty to give) reasons, may be seen as more significant to the justification of judicial review than the form in which those reasons are expressed.21 Moreover, in the pragmatic spirit of the common law, gains can be made in incremental improvements to the ways in which our constitutional systems function, whether they lean towards the collective or the individual
17 Interestingly, part of the balance lies in the very idea of having a multi-member appellate court rather than a single judge. Whether expressed in consolidated or fragmented form, the judgment of a multi-member court already proffers a safeguard against individual subjectivity. 18 Michael Meehan, 'Judicial Style' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 378-380. 19 For the broader context of the role of a constitutional court in a democracy, see Michael Coper, 'Democracy' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 203-204. 20 Cf Michael Coper, 'Marbury v Madison' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 453-455. 21 See n 17 above.
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approach to judicial adjudication. To the extent, for example, that the debate is about clarity in judicial reasoning,22 there may be more important factors than those discussed in this paper: for example, the core judicial craft of good writing, the reservation of disagreement to points of major principle rather than of minor preference, the publication of court-sanctioned summaries of decisions, and so on.
In the end, any system depends for its efficacy on the capacity, skill, commitment, and integrity of the human beings who operate it, and the degree of trust that particular societies repose in their institutions and their traditions. I suspect that many countries, perhaps most, have successful or unsuccessful judicial systems despite, rather than because of, the detail of their particular institutional arrangements.
22 Which I think is an important element of judicial accountability: see Michael Coper, 'Accountability' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 3-4.
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The principle of the supremacy of the constitution in the construction of political pluralism in México: the controversia constitucional and the acción de inconstitucionalidad
Iván De la Garza Santos1 Facultad Libre de Derecho de Monterrey Mexico
I. Introduction
The achievement of a more pluralistic political scenario in México is not only product of the presidential election of 2000, in which a party different from the Partido Revolucionario Institucional won the presidency.2 Before the victory of the Partido Acción Nacional in this election, important reforms to the electoral legislation were made.
Nevertheless, one of the most important conditions for political pluralism in our country is not directly related to electoral legislation, but to the principle of supremacy of the Constitution. In December 31 of 1994, the article 105 of our Federal Constitution was amended to introduce the controversia constitucional and the acción de inconstitucionalidad.
Both, the controversia constitucional and the acción de inconstitucionalidad, are procedures by which the constitutionality of an action adopted by a branch or order of government might be challenged by legitimated actors (enumerated by the Federal Constitution) before the national Supreme Court (Suprema Corte de Justicia de la Nación).
Before the explanation of these judicial procedures, it is important to know the following characteristics of Mexico’s political system:
• Mexico has a presidential system of government with a two chamber Legislative branch. This system is reproduced by the states and partially by the Federal District3, but with only one legislative chamber. • Mexico is a federal State divided in four orders of government. These are: federation, states (31), municipalities (2,4454) and one Federal District (Mexico City). • There is a dominant three party system: Partido Revolucionario Institucional (P.R.I.), Partido de la Revolución Democrática (P.R.D.) y Partido Acción Nacional (P.A.N.).
1 Professor of Constitutional Law at the Facultad Libre de Derecho de Monterrey, Mexico. 2 Since its creation in 1929, the Partido Revolucionario Institucional – founded as Partido Nacional Revolucionario – had the presidency and almost the absolute control of local and national government. 3 Even though the Federal District has popularly elected authorities, it has a special political configuration regulated by article 122 of the Federal Constitution, in which it is stated that the President and the Federal Legislative branch have power over some important local issues. 4http://www.inegi.org.mx/inegi/contenidos/espanol/prensa/Contenidos/capsulas/2002/geografica/municipios.asp ?s=inegi&c=813
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• The powers of the federation and the municipalities are enumerated by the Federal Constitution, while the residual powers are reserved for the states.
The following timeline might also help to contextualize the importance of the political changes and constitutional reforms made in the last 30 years:
and the are is declare
Gortari constitucional
inconstitucionalidad de controversia n Reform of the electoral system by the ó introduction of the proportional Reform of the electoral system by the Carlos Salinas de The PAN wins its first election for representation and first. The minority PRI loses to theits majorityThe PRIin the loses House for the of first time introduction of the proportionalPresident in a doubtful election which will The The PAN wins its first municipal Governor Senate Representatives the election for President representation to the House haveof an important effect in the acci government Representatives liberalization of the political system introduced.
1994 1996 1997 2000 1947 1977 1988 1989
The objective of this brief paper is to explain the mentioned constitutional guarantees, in order to understand how their incorporation is related to the achievement and safeguard of a more pluralistic political scenario, based on the respect of the limits and provisions imposed by the Federal Constitution.
II. The Controversia Constitucional
The controversia constitucional is a judicial guarantee for the preservation of the separation of powers principle. Through it, the branches of government of the federation – with the obvious exceptions of the national Supreme Court –, the states, and the Federal District, as well as the territorial orders of government, have the entitlement to denounce an intromission to their sphere of competence by another branch or order of government.
In a country where the exercise of presidential metaconstitucional powers5 was commonly understood as part of the political system – situating the figure of the President above the other branches and orders of government – and where this submission scheme was often
5 Carpizo, Jorge, El presidencialismo mexicano, 13a ed., México, Siglo XXI, 1996, p. 190 – 199.
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reproduce by the Governors of the states against the local powers, the adoption of a mechanism exclusively created to protect the powers granted by the Constitution was a breakthrough for political pluralism.
Even before the constitutional amendment of 1994, article 105 provided a similar guarantee of protection, with the implicit exclusion of the municipalities. Nevertheless, the absence of a regulatory law that clearly stated the procedure for the controversia constitucional, made it quite useless. In this context, in May 11 of 1995 the regulatory law of article 105 was promulgated.6
To have an idea of the importance of the amendment, while from 1918 to 1994 33 demands were brought before the Supreme Court7, only in 2008 the number raised up to 230.8
Besides the relevant role played by the Supreme Court as a “referee” of a “constitutional fair play”, it’s important to highlight the construction of the constitution that’s made through its sentences.
III. The Acciones de Inconstitucionalidad
Unlike the controversias constitucionales, the purpose of the acción de inconstitucionalidad is not to protect the principle of separation of powers, but to enforce the principle of the supremacy of the constitution against any law or international treaty that might conflict with a constitutional provision.
In order to obtain this, the Constitution enumerates a series of legitimated actors that can bring an acción de inconstitucionalidad before the Supreme Court. These actors are:
1. A 33% of the members of the House of Representatives or the Senate, against a law approved by the Federal Congress or the Legislative branch of the Federal District.
2. A 33% of the members of the Senate against an international treaty.9
3. A 33% of the members of a state Legislative branch against a law approved by this branch.
4. A 33% of the members of the Federal District Legislative branch against a law approved by this branch.
6 The name of this law is Ley reglamentaria de las fracciones I y II del artículo 105 de la Constitución Política de los Estados Unidos Mexicanos. 7http://www.scjn.gob.mx/PortalSCJN/ActividadJur/ControversiasConstitucionales/ControversiasConstitucionales1 917-1994.htm 8 http://www.scjn.gob.mx/PortalSCJN/Transparencia/InformesLabores/2008.htm 9 Article 76 of the Constitution orders that the Senate has the power to analyze the foreign policy affairs and to ratify all international treaties signed by the Executive Power.
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5. The national General Attorney against any law or international treaty.
6. The national political parties against federal and local electoral laws and state political parties only against the electoral laws approved by their state legislature.
7. The national Ombudsman against any law or international treaty that might affect a fundamental right recognized by the Constitution. Local Ombudsmans can also challenge the constitutionality of a law approved by their Legislative power.
The acción de inconstitucionalidad obeys to a specific countermajoritarian logic. There are two reasons that confirm this affirmation. First, because a non-popular elected branch of government such as the Supreme Court has the power to “derogate”10 a law approved by a majority of popular elected representatives, such as the members of the different Legislatives Powers. And second, because as we can see, particularly in numbers 1 to 4, there are the parliamentary minorities the legitimated actors who can challenge the constitutionality of legislation.
The recognition of the national political parties as legitimated actors, specifically for electoral legislation is quite important, even more when they have the opportunity to challenge the constitutionality of a state law in which the party in question might not have enough members in the Legislative chamber to add the required 33%.
Only in 2008, 174 acciones de inconstitucionalidad where introduced. In that year, the Supreme Court determined the constitutionality of an amendment to the criminal code of the Federal District which decriminalized abortion when it is practiced before the 12 week of pregnancy. In this case, the acción de inconstitucionalidad before the Supreme Court was brought by the national Ombudsman and the national General Attorney.
IV. Conclusion
There is no doubt that the reforms to the electoral legislation were fundamental in the construction of political pluralism in México. Nevertheless, no democracy can be maintained without the certainty that all the political actors will respect the basic agreements contained in the Constitution. In this context, is fundamental to highlight the role that the Supreme Court has played in the enforcement of constitutional rules specifically since the reform of 1994.
10 As Kelsen said, the Constitutional Court acts as a “negative legislator” when it declares the inconstitutionality of a law, expelling it from the legal system. Kelsen, Hans, La garantía jurisdiccional de la Constitución, trad. Rolando Tamayo y Salmorán, México, UNAM, 2001, p. 56.
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The Constitutional Court of Indonesia: Its Authorities and Contributions on the Development of Democracy in Indonesia 1
Dr. A. Latief Fariqun, SH., MH.2 Brawijaya University Indonesia
In the last three decades before the 1998 governmental reformation, Indonesia was practically under an authoritarian government, eventhough there were several general elections, the People’s Consultative Assembly (Majelis Permusyawaratan Rakyat) and the People’s Representative Council (Dewan Perwakiilan Rakyat). Many factors contributing this situation. The military under President Suharto controlled the government. The Ruling Party” Gollkar”dominated the parliament. But he main cause of this practice of authoritarianism was the constitution itself. Before the amendment, the 1945 constitution constructed an executive heavy governmental system which gave the president a very big power without mechanism of checks and balances. It also gave the president an attributive and delegated power to regulate constitutional and fundamental affairs merely with the laws or governmental Decree. The last but not the least, some provisions or articles in the 1945 constitution are vague or ambiguous norms that could be interpreted with various interpretations in accordance with the policy of the president. In practice, the President dominated the law making because the main power of the law making was on the hand of the president and the President’s supporting party dominated the People’s Representative Council (Parliament) . Many laws in that era were substantively unconstitutional, but could only be changed through legislative review. This meant that a law could only be amended by the institution that created it without any opportunity to be reviewed by other equivalent institutions. There were no checks and balances then. Based on the construction, Indonesia could not be a democratic government.
Since 1998, Indonesia has been entering the reformation era. There have been growing aspirations demanding democratic reformation, including the amendment of the constitution. Between the year of 1999 until 2002, the 1945 constitution underwent four times fundamental amendments made by the People’s Consultative Assembly (Majelis Permusyawaratan Rakyat or MPR)3.
During the debate of the amendments, there was a strong aspiration and demand to adopt a Constitutional Court. The impetus or trigger for the debate regarding the idea to
1 Paper presented at the IALS Conference entitled “Constitutional Law”, on September 11-12, 2009, in Washington, DC, USA. 2 Lecturer at the Faculty of Law Brawijaya University, Indonesia. 3 The People’s Consultative Assembly (Majelis Permusyawaratan Rakyat or MPR) consists of the members of the People’s Representative Council and the Regional Representative Council. Its main authorities are to amend the Constitution, to inaugurate the President and/or the Vice-President and to remove the President and/or the Vice-President during his/her term office in accordance with the Constitution.
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establish the Court was the controversial impeachment of President Abdurrahman Wahid in 2000. Abdurrahman Wahid was unseated based on political reasons and it was decided in a political forum based on a majority votes. In the midst of the controversy surrounding the impeachment of President Abdurrahman Wahid, an idea was put forward to make a constitutional arrangement regarding the mechanism of impeachment, so that a president accused of committing a crime could be brought before a court of law, rather than a political forum such as the People’s Consultative Assembly (Majelis Permusyawaratan Rakyat). This adoption of the Constitutional Court was considered as more strengthening democratic reformation. In 2003 the Constitutional Court was established.
The Constitutional Court has four authorities and one obligation. The Court has the jurisdiction to (1) review laws against the 1945 Constitution; (2) decide on disputes on the authorities of state institutions whose authorities are granted by the 1945 Constitution; (3) decide on the dissolution of political parties; and (4) decide on disputes on general election result.4 The Constitutional Court’s obligation is to rule on People’s Representative Council opinion on any alleged violation by President and/or Vice President pursuant to the 1945 Constitution in order to determine whether People’s Representative Council may conduct further impeachment of the incumbent President and/or Vice President.5
In the five years since its establishment, the Constitutional Court has been contributing significantly the development of democracy in Indonesia. The Constitutional Court had handled 156 judicial review cases from 74 different laws, 10 cases of authority dispute, and 45 cases of dispute on general election results. Many of the petitions for judicial review were granted, which means that part of the law was decided unconstitutional. In relation to the political rights of the citizens, through various Constitutional Court decisions, every citizen has been able to exercise his/her voting right without discrimination.
In one landmark decision, the Constitutional Court nullified an article of the law concerning General Election preventing former members of the communist party from voting. The Constitutional Court stated that the provision of the Article ” constitutes a denial of the human rights of the citizens or discrimination based on political beliefs, and therefore it is contradictory to human rights protection guaranteed by the 1945 Constitution”. Through this
4 Article 24C of the Amanded 1945 Constitution. The authority to review law against the Constitution is granted to the Constitutional Court and the authority to review regulations under laws against laws is granted to the Supreme Court.
5 This Constitutional Court obligation shall be referred to Article 7A of 1945 Constitution as following, “The President and/or Vice-President may be removed from his/her position during his/her term of office by the People’s Consultative Assembly on the proposal of the People’s Representative Council, whether it is proven that he/she has violated the law through an act of treason, corruption, bribery, other serious criminal offences, or through moral turpitude and/or that he/she no longer meets the qualifications to serve as the President and/or Vice-President”.
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decision, Constitutional Court abolished the political discrimination undergone by the former members of the communist party for more than three decades and allowed them to exercise their right to vote like every other citizen.
Another Constitutional Court’s decision contributing to the development of democracy was that of the nomination of the regional head candidate, that is Governor, Regent and Mayor as the respective head of provincial, regency, and municipal government. It once annulled a regional government law which only allowed a person to become a regional head candidate through political parties. Through this decision, any person can be a regional head candidate not only through political parties but also through independent individual nomination.
Further decisions of the Constitutional Court developing democracy were those of nullifying ” the Provisions on Contempt against President and Vice President” of the Article 134, 136 bis, and 137 and the article of 154 and Article 155 of Criminal of the Indonesian Criminal Code”. The first three articles are regulating the criminal acts of contempt against President and Vice President in the forms of one’s expressions or thoughts in the public relating to the President and Vice President. These acts should be punished by imprisonment or fine. The Constitutional Court is of the opinion that the three articles are create legal uncertainty because they are highly susceptible to interpretation as to whether a protest, expression of opinion or thought constitutes a criticism or contempt against President and/or Vice President. The second two articles are concering “declares feelings of hostility, hatred or contempt towards the Indonesian Government in public”. These acts are criminal and should also be punished by imprisonment or fine. The Constitutional Court considered that the formulation of both articles may create a tendency toward abuse of power, since they can be easily interpreted according to the preference of the rulers. As a consequence, these articles hinder the freedom to express thoughts and attitudes as well as the freedom to convey opinions, and therefore, they are declared contradictory to the 1945 Constitution.
Relating to dispute on General Election results, there were 274 cases filed by 23 out of 24 political parties participated in 2004 General Election. This meant that only one political party did not file a petition to the Constitutional Court. Most of the cases were decided in line with the democratic consolidation. In the case of 2009 Parliamentary Election last April, 2009, there were also hundreds of cases handled by the Constitutional Court and have decided in July, 2009. All cases successfully decided. These decisions have avoided the violation resulting from general election disputes.
Generally, since its establishment in 2003, the Constitutional Court has been doing well their authorities and contributing progresses in human rights and democracy in Indonesia. In the law making process, the Constitutional Court has controlled the constitutionality of the laws enacted by the legislative institutions which are not in line with or contradictory to the constitution. Moreover, the law making is not only a matter of law making legally or constitutionally but also should be democratically. Based on the decisions have been decided by the Constitutional Court of Indonesia, the Court have played the role as the guardian of the
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constitution, the balancing power in a majoritarian democracy, protector of the citizens’ constitutional rights, the final interpreter of the constitution, and balancing agent in the "checks and balances" mechanism among state institutions. These contributions, amid the problems encountered during the transitional period in the last ten years, have been strengthening democratic consolidation.
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Constitutional Adjudication and Democracy Judicial Review of Constitutional Change: Defending Constitutions with Constitutionalism
Dante B. Gatmaytan1 University of the Philippines, College of Law Philippines
May courts review and strike down constitutional amendments that undermine constitutionalism? In the last two decades scholars have been constructing the theoretical base for this proposition by building upon arguments that there are substantive limitations to formal constitutional change. I suggest here that courts may already be implementing this view.
Unconstitutional Constitutional Amendments There are many who support the view that there are substantive limits to constitutional amendments. Murphy supports the view that amendments that destroy or cripple the values of constitutional democracy would be invalid. He added that there are also limitations imposed by natural law, justice and right on the power to amend constitutions (Murphy 1995). Rawls opposed amendments that repeal core constitutional freedoms or violate core human rights and deny the basis of equality that he saw as the foundation of equal liberties (Kelbley 2004). Others have suggested that proposals that would deny legal protections or equal status to some class of people are impermissible (Mazzone 2005)2 or that the right to even-handed treatment and to privacy cannot be repealed or weakened by amendment (Graber 1995). Courts may be asked to intervene if amendment procedures violate constitutionally protected individual rights (Hajdu and Rosenblum 1979). Substantive limits on the power to amend constitutions expanded to include limitations implied by “universal” agreements or jus cogens principles under international law, the evolving understanding of human rights (Samar 2008), and emerging international legal norms that address matters such as the separation of powers and constitutional amendment (Schnably 2008).3 It has even been argued that the initiative systems (which can be used to amend
1 Associate Professor, University of the Philippines, College of Law; LL.B., University of the Philippines, 1991; M.S.E.L., Vermont Law School, 1995; LL.M., University of California, Los Angeles, 1996, [email protected]. 2 Mazzone refers to these as “unamendments” and examples would include outlawing Islam, denying schooling to girls, preventing Catholics from running for office, segregating neighborhoods, limiting access to courts to the wealthy, and denying voting rights to the elderly. Mazzone, Jason. 2005. "Unamendments." Iowa Law Review 90:1747-1855. 3 Others claim that the proponent of the amendments is material and that constitutional provisions emanating from the people are superior and should always trump “irreconcilably conflicting constitutional provisions created by government institutions which, in his view, are an inferior source. Only a constitutional amendment emanating from “We the People” ought to trump an “irreconcilably conflicting popular sovereign-generated constitutional
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constitutions) especially insofar as it can disadvantage minorities are unconstitutional (Chemerinsky 2007).
Constitutionalism and Constitutions The modern concept of constitutionalism has two themes. The first is the existence of limitations imposed on the state particularly in its relations with citizens, based on a clearly defined set of core values. The second is the existence of a mechanism to enforce these limitations. The government that exceeds its limitations should be held accountable (Fombad 2007). Under constitutionalism, citizens must have a right to political participation and their government must be controlled by substantive limits on what it can do (Murphy 1993). Still others are willing to go beyond this definition. Professor Vicki Jackson’s definition introduces new elements into the mix. Constitutionalism in her view is a sufficiently shared willingness to use law rather than force to resolve disagreements; to limit government power and to protect human rights through law and defined processes; to provide a reasonable degree of predictability and stability of law that people may rely on as they structure their lives; and to maintain a government that is legitimate and effective enough to maintain order, promote the public good, and control private violence and exploitation (Jackson 2008). Recently, the definition of constitutionalism has been woven into constitutions. In Fombad’s view, the philosophy behind constitutionalism is the need to design constitutions that are not merely programmatic, shams or ornamental documents that could be easily manipulated by politicians but rather documents that can promote respect for the rule of law and democracy (Fombad 2007). The goal of constitution-making should be understood, not as producing a written constitution, but as promoting constitutionalism (Jackson 2008). There is a new emphasis on democratizing the environment in which constitutions are adopted before constitutions can have value and legitimacy. Constitutionalism implies that the constitution cannot be suspended, circumvented or disregarded by political organs of government. It can be amended only by procedures appropriate to change of constitutional character and that give effect to the will of the people acting in a constitutional mode (Ihonvbere 2000). The following have been identified as the core elements of constitutionalism and in my view may never be weakened or removed by amendments: 1. the recognition and protection of fundamental rights and freedoms, 2. the separation of powers, 3. an independent judiciary, 4. the review of the constitutionality of laws, and
provision.” González, Carlos E. 2002. "Popular Sovereign Generated Versus Government Institution Generated Constitutional Norms: When Does a Constitutional Amendment not Amend the Constitution?" Washington University Law Quarterly 80:127-242.
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5. the control of the amendment of the constitution (Fombad 2007).
Constitutionalism and Judicial Review The mechanism for protecting constitutions through constitutionalism is already in place as constitutionalism and judicial review take root in many countries. New nations freeing themselves from colonialism, reorganizing after the fall of communism, and emerging as part of the new democratization in Latin America (as well as authoritarian regimes and illiberal democracies) (Halliday, Karpik, and Feeley 2007). For its part, judicial review has become a fixture in emerging democracies and is increasingly viewed as a prerequisite of healthy democratic development (Brown 1998). Reeling from the experience with fascism and communism many states now embrace the ideas of constitutional government and the limited state. Many countries adopted bills of rights that provided protections of individual rights, limited governmental powers, and established judicial review. Courts have played a larger role in the democratization of states. Political scientists now recognize that an independent judiciary can bolster both political and economic development (Chavez 2008), and scholars have stressed that a healthy judiciary is also crucial to building popular support for the rule of law and the democratic regime (Prillaman 2000). In post- communist regimes constitutional courts enforce post-communist constitutions, uphold democratic values, protect individual rights, and serve as a safeguard against the return to the totalitarian past (Trochev 2004). Where they are allowed to function, courts seem to be viewed as bastions of human freedom and democratic values. They can force politicians to implement human rights and freedoms, thus serving as an important check and balance to post-communist governments that might adopt different policies (Richardson 2006). Courts are “veto-players” that protect democracy from the excesses of executive power, majority tyranny, corruption, and other social and political ills (Gibson and Caldeira 2003). Courts have also proven to be effective in guiding democratization in South Korea (Yang 1993), Mexico and Colombia (Schor 2009). The prominence and independence of courts makes them an ideal forum for defending constitutions. They are already enforcing constitutions and checking the excesses of the political branches of government. They can easily step up and defend constitutionalism especially because amendments could make courts weaker or subservient to the other branches of government.
Addressing Regressive Amendments What amendments may courts strike down on the theory that they undermine constitutionalism? These amendments would be those that impair the abovementioned core elements of constitutionalism. They are sometimes referred to as regressive amendments— those that enhanced executive power and curtailed the enjoyment of fundamental rights (Hatchard 1998).
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Examples of these amendments abound. African leaders attempted or succeeded in removing term limits from their constitutions (Posner and Young 2007). Amendments to the Constitution of Zimbabwe have sought to oust the jurisdiction of the courts, to prevent the Supreme Court from hearing cases relating to the scope of the fundamental rights provisions, and to overturn its decisions in the same case (Hatchard 1998). These amendments are also referred to as usurpations of constitutionalism. Usurpation takes place when groups use constitutional ideas and processes for partisan political ends or to prevent progressive reform inherent in the spirit of the constitution. Sri Lanka is an example of a country where amendments were used by the party in power to gain tactical advantage over other parties. In Sri Lanka, amendments deprived an opposition leader of civic liberties, expelled members of a political party (that subsequently lead to the loss of seats in parliament), empowered the President to determine the time of the presidential elections, and extended the life of parliament, depriving citizens of the choice of their local representatives. Other amendments ousted representatives of the Tamil-speaking regions from parliament and removed the safeguards for the extension of emergency powers. Courts have the power to require a referendum when the basic structure of the Constitution is amended but they have been reluctant to interfere with the decisions of the executive. The experience in Sri Lanka has led to a great deal of disillusionment with the democratic process and with the ideology of constitutionalism (Coomaraswamy 1993). Other courts are not as reluctant to act. The Central American Court of Justice (CCJ), the judicial arm of the Central American Integration System (SICA)4 ruled against amendments along the lines that I suggest here. On December 2004 Nicaraguan President Enrique Bolaños filed petitions with the CCJ challenging a round of constitutional amendments that would have constricted his powers. He alleged that the amendments upset the balance of powers among the branches of government which was an essential requirement of democracy. He also claimed that the Assembly had acted in contravention of the constitution’s amending procedures. The reforms the amendments sought, he said, were not mere partial revisions or amendments—which the Assembly’s could accomplished alone. He maintained that the amendments constituted total reform because it sought to change the form of government from a presidential to a parliamentary form of government, which may be done only by means of national elections for a constituent assembly (Schnably 2008). On March 29, 2005, the CCJ ruled that the Assembly had violated the constitution, and that the amendments would undermine the independence of the executive. The CCJ assumed jurisdiction over the case because stability and peace in the region—one of the aims of the creation of the court—depended on the maintenance of the rule of law in member countries. Because the transformation from a presidential to a parliamentary regime could be
4 SICA is a regional organization dedicated to integration of Central American states, adopted a Treaty Framework for Democratic Security in Central America.
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accomplished only through the process prescribed for total revision of the constitution, the CCJ concluded that the amendments were invalid (Schnably 2008).5
Conclusion Constitutions are too easily amended and often times these exercises are carried out only to serve the interests of parties in power. Fortunately, there is a growing understanding that constitutionalism is a function of a constitution. We should further explore the idea that changes to the constitution should always preserve the elements of constitutionalism. Courts have assumed an important role in government of late—serving as guardians of the constitution against the excesses of the other branches of government. The next logical step would be to invoke the power of judicial review to protect constitutions from regressive amendments. As I suggest here, the theoretical and institutional infrastructure for defending constitutions along these lines are already in place.
5 Bolaños also filed a similar case with the Nicaraguan Supreme Court which ruled that Article 22(f) of the CCJ statute was unconstitutional to the extent that it purported to vest in the CCJ the power to determine disputes among the different branches of Nicaragua’s government. It ruled that the CCJ’s rulings were without legal effect. In the end, the president and the Assembly reached an agreement on a “framework law” providing that the amendments would not become effective until after the next election, at which point the government would have the opportunity to reconsider them. The Sandinista candidate and former President Daniel Ortega subsequently won office by a plurality. Early on, the new government exercised its power to suspend implementation of the amendments pending further study. Schnably, Stephen J. 2008. "Emerging International Law Constraints on Constitutional Structure and Revision: A Preliminary Appraisal." University of Miami Law Review 62:417-489.
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References
Brown, Nathan J. 1998. "Judicial Review and the Arab World " Journal of Democracy 9:85-99. Chavez, Rebecca Bill. 2008. "The Rule of Law and Courts in Democratizing Regimes." Pp. 63-80 in The Oxford handbook of law and politics, edited by K. E. Whittington, R. D. Kelemen, and G. A. Caldeira. Oxford: Oxford University Press. Chemerinsky, Erwin. 2007. "Challenging Direct Democracy." Michigan State Law Review 2007:293-306. Coomaraswamy, Radhika. 1993. "Uses and Usurpation of Constitutional Ideology." Pp. 159-171 in Constitutionalism and Democracy, edited by D. Greenberg, S. N. Katz, M. B. Oliverio, and S. C. Wheatley. New York: Oxford University Press. Fombad, Charles M. 2007. "Challenges to Constitutionalism and Constitutional Rights in Africa and the Enabling Role of Political Parties: Lessons and Perspectives from South Africa." American Journal of Comparative Law 55:1-45. Gibson, James L. and Gregory A. Caldeira. 2003. "Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court." The Journal of Politics 65:1-30. González, Carlos E. 2002. "Popular Sovereign Generated Versus Government Institution Generated Constitutional Norms: When Does a Constitutional Amendment not Amend the Constitution?" Washington University Law Quarterly 80:127-242. Graber, Mark A. 1995. "Old Wine in New Bottles: The Constitutional Status of Unconstitutional Speech." Vanderbilt Law Review 48:349-389. Hajdu, Robert and Bruce E. Rosenblum. 1979. "The Process of Constitutional Amendment." Columbia Law Review 79:106-172. Halliday, Terence C., Lucien Karpik, and Malcolm M. Feeley. 2007. "The Legal Complex in Struggles for Political Liberalism." in Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism, Oñati International Series in Law and Society, edited by T. C. Halliday, L. Karpik, and M. M. Feeley. Portland: Hart Publishing. Hatchard, John. 1998. "'Perfecting Imperfections': Developing Procedures for Amending Constitutions in Commonwealth Africa." The Journal of Modern African Studies 36:381- 398. Ihonvbere, Julius O. 2000. "How to Make an Undemocratic Constitution: The Nigerian Example." Third World Quarterly 21:343-366. Jackson, Vicki C. 2008. "What's in a Name? Reflections on Timing, Naming, and Constitution- Making " William and Mary Law Review 49:1249-1305. Kelbley, Charles A. 2004. "Are There Limits to Constitutional Change? Rawls on Comprehensive Doctrines, Unconstitutional Amendments, and the Basis of Equality." Fordham Law Review 72:1487-1536. Mazzone, Jason. 2005. "Unamendments." Iowa Law Review 90:1747-1855. Murphy, Walter F. 1993. "Constitutions, Constitutionalism and Democracy." Pp. 3-25 in Constitutionalism and Democracy, edited by D. Greenberg, S. N. Katz, M. B. Oliverio, and S. C. Wheatley. New York: Oxford University Press.
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—. 1995. "Merlin's Memory: The Past and Future Imperfect of the Once and Future Polity." Pp. 163-190 in Responding to Imperfection: The Theory and Practice of Constitutional Amendment, edited by S. Levinson. Princeton: Princeton University Press. Posner, Daniel N. and Daniel J. Young. 2007. "The Institutionalization of Political Power in Africa." The Journal of Democracy 18:126-140. Prillaman, William C. 2000. The Judiciary and Democratic Decay in Latin America: Declining Confidence in the Rule of Law. Westport: Prager Publishers. Richardson, James T. 2006. "Religion, Constitutional Courts, and Democracy in Former Communist Countries." The ANNALS of the American Academy of Political and Social Science 603:129-138. Samar, Vincent J. 2008. "Can a Constitutional Amendment be Unconstitutional?" Oklahoma City University Law Review 33:668-748. Schnably, Stephen J. 2008. "Emerging International Law Constraints on Constitutional Structure and Revision: A Preliminary Appraisal." University of Miami Law Review 62:417-489. Schor, Miguel. 2009. "An Essay on the Emergence of Constitutional Courts: The Cases of Mexico and Colombia." Indiana Journal of Global Legal Studies 16:173-194. Trochev, Alexei. 2004. "Less Democracy, More Courts: A Puzzle of Judicial Review in Russia." Law & Society Review 38:513-548. Yang, Kun. 1993. "Judicial Review and Social Change in the Korean Democratizing Process." The American Journal of Comparative Law 41:1-8.
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Towards Reestablishing Democratic Participation in Constitutional Interpretation
F. Andrew Hessick Arizona State University Sandra Day O'Connor College of Law United States
America is a democracy, and the fundamental law created by that democracy is the Constitution. As the preamble of the Constitution relates, it is the product of “we the people.” And the people have the power to amend or to abrogate the Constitution through the procedures outlined in Article VI. Although the Constitution is the only national law created directly by the people, the people as a practical matter no longer exercise control over the Constitution. More than three decades have passed since the last amendment. But this does not mean that constitutional law has remained static. To the contrary, constitutional law has continued to evolve; that evolution, however, has come from the government rather than the people.
The judiciary is responsible for most of constitutional law’s growth. Through their decisions, the courts have variously contracted, expanded, and altered the powers of the state and federal governments, and moved the lines demarcating the distribution of power among each of the branches in the federal government. They have created new individual rights, and they have redefined the scope of various preexisting rights, like the right to confrontation and the right to abortion.
One reason that the judiciary has had the most impact on the development of constitutional law is that the judiciary has claimed for itself the ultimate authority to interpret the Constitution. Relying on the statement in Marbury v. Madison that it is “the province and duty of the judicial department to say what the law is,”1 the courts have taken the position that interpretations rendered by other branches or the states are not authoritative; only the courts can determine the meaning of the Constitution.2
But judicial supremacy is in tension with the popular disengagement from the Constitution. One of the principles behind judicial power “to say what the law is” is that the judiciary’s word is not final. A lawmaker that is dissatisfied with a court’s interpretation of the law can remedy the situation by enacting a new law. This arrangement ensures that the lawmaker, and not the judiciary, has the power to set policy. And when the controversial interpretation involves the Constitution (as opposed to a statute), then the democratic check on the judiciary is through constitutional amendment. Historically, the people have exercised this prerogative on several occasions. The Eleventh and Sixteenth Amendments are examples.
1 1 Cranch 137, 177 (1803). 2 United States v. Morrison, 529 U.S. 598, 616 n.7 (2000) (“It is . . . a ‘permanent and indispensable feature of our constitutional system’ that ‘the federal judiciary is supreme in the exposition of the law of the Constitution.’” (quoting Cooper v. Aaron, 358 U.S. 1, 18 (1958)).
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But those episodes are long past. Judicial interpretations are now regarded as virtually inviolate.
There are a number of possible explanations for this phenomenon. One is that the people have simply disengaged from the Constitution. Newspapers no longer publish op‐eds like the Federalist Papers. People talk about things that they care about, like the movies, television, and the economy ‐‐‐ the Constitution is not on that list. Another explanation is that, because the judiciary has been willing to change its interpretation of the Constitution,3 people have no reason to pursue the tedious amendatory process ‐‐‐ it is easier to appoint a sympathetic judge than to mobilize the country. The failed Equal Rights Amendment provides an example. Rather than continuing efforts to amend the Constitution to specify that women have equal rights as men, the political branches explicitly articulated a policy of pursuing judicial opinions endorsing such equality.4 Whatever the reason, the consequence is that the judiciary, and not the people, have functional control over the meaning of the document setting forth our democracy’s fundamental policy choices.
Of course, one might say that the people’s disengagement from the Constitution is no reason to question judicial supremacy over the legislature on constitutional matters. But reengaging the public in constitutional matters has proven difficult to do. Although several proposals have been made to that end, such as holding an annual Constitution Day, none of them has shown much promise.
Placing greater constitutional control with the legislature is arguably the next best solution, because legislatures are closer to the people than the courts. Representatives are chosen by the people to make policy choices, and accordingly are more attuned to the views and desires of the populace than the courts. Judicial deference to the legislative interpretations of the Constitution would more closely implement the will of the people.
Currently, courts do not afford deference to constitutional interpretations rendered by legislatures.5 Although courts do afford legislatures some leeway through deferential constitutional tests, those tests do not involve deference to legislative interpretations of the Constitution. Rather, those tests involve a form of factual deference. Consider the deferential review of federal laws regulating commerce. The Supreme Court has held that the Interstate Commerce Clause authorizes Congress to enact legislation that regulates (1) the channels of commerce, (2) the instrumentalities or things in interstate commerce, or (3) economic activities that substantially affect interstate commerce. This test is not the only plausible interpretation of the Commerce Clause; one could rationally interpret it more broadly. But in reviewing
3 See, e.g., Garcia v. San Antonio Met. Transit Auth., 469 U.S. 528 (1985) (overruling National League of Cities v. Usery, 426 U.S. 833 (1976)). 4 See Pauli Murray & Mary O. Eastwood, Jane Crow and the Law: Sex Discrimination and Title VII, 34 GEO. WASH. L. REV. 232, 235‐36 (1965) (quoting PRESIDENT’S COMMO’N ON THE STATUS OF WOMEN, AMERICAN WOMEN 44‐45 (1963)). 5 See, e.g., City of Boerne v. Flores 521 U.S. 507, 529 (1997) (rejecting deference to legislative interpretations of the Constitution on the ground that “[s]hifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article V.”).
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Commerce Clause legislation, courts do not ask whether Congress might have held a different, rational interpretation of the Commerce Clause in enacting the legislation. Instead, they ask whether Congress could have rationally concluded that the law falls within one of the three categories defined by the Court. Any deference the courts afford is not to Congress’s interpretation.
Deference to the legislative interpretations arguably also is appropriate give that the courts have framed a number of their tests on contemporary social norms. Whether a search is reasonable under the Fourth Amendment, whether punishment is cruel and unusual under the Eighth Amendment, and whether material is pornographic under the First Amendment all depend on current social norms.6 If constitutional interpretation depends on social norms, the legislature, being more attuned to those norms, should play a greater role.
Of course, suggesting that courts yield any portion of their independent interpretive authority is bound to meet a number of objections, too many to address here. Principal among those objections is that placing interpretative authority with Congress runs afoul of the reasoning in Marbury that, if the legislature controlled the meaning of the Constitution, the Constitution would be a nullity; legislative will would constitute the law. But Marbury was talking about absolute legislative control over constitutional meaning. Nothing in Marbury prohibits courts from granting some degree of deference to legislative interpretations. So long as the Constitution places some enforceable restraints on the legislature, the Constitution is not a nullity. Indeed, until the late nineteenth century, courts often stated that deference to legislative interpretations of the Constitution was appropriate.7
The judiciary plays an important role in our constitutional system. Its power is necessary to ensure that majoritarian impulses do not strip unpopular minorities of their rights. But the lack of a popular check on the judiciary has left the judiciary with de facto control over the Constitution’s meaning. Judicial deference to the legislature would be a step toward reestablishing the public’s role in the constitutional discourse.
6 See Corinna Lain, The Unexceptionalism of Evolving Standards, 57 U.C.L.A. L. REV. __ (forthcoming 2009) (identifying a number of examples). 7 E.g., Union Pac. R. Co. v. United States, 99 U.S. 700, 718 (1878) (stating that a declaration that a statute is unconstitutional “should never be made except in a clear case. Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt”); Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 436 (1827) (stating that “the presumption is in favor of every legislative act”); United States v. Ravara, 2 U.S. (2 Dall.) 297 (C.C.D. Pa. 1793) (“tho’ an Act of Congress plainly contrary to the Constitution was void, yet no such construction should be given in a doubtful case”); Commonwealth ex rel. O’Hara v. Smith, 4 Binn. 117, 123 (Pa. 1811) (“It must be remembered however, that for weighty reasons, it has been assumed as a principle in construing constitutions, by the Supreme Court of the United States, by this court, and every other court of reputation in the United States, that an act of the legislature is not to be declared void, unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt.”).
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Role of Monarchy and Traditional Rulers in Malaysia
Associate Professor Dr Faridah Jalil Faculty of Law Universiti Kebangsaan Malaysia Malaysia
Introduction
Malaysia is internationally known as a country that subsist and developed based on the system implanted by the British when their occupation of Peninsula Malaya becomes absolute in 1948. In continuance of the system introduced by the British democracy were sowed in the 1957 Federal Constitution; a constitution that provides for Westminster Parliamentary system of government, the doctrine of supremacy of the constitution, independence of judiciary and at the same time preserving the institution of monarchy that had been in place for almost 400 years prior to the British occupation. Thus besides the legislature, executive and judiciary, there is a fourth branch in Malaysia government, namely the monarch.
Evolution of the institution
The institution of monarchy in Malaysia had undergone numerous changes and challenges. Absolute monarchy is history; the constitution transforms the institution into constitutional monarchy, meaning that rulers have to act on advice. Besides the traditional monarchy system, the constitution introduces an institution of elective monarchy, known as the Yang di-Pertuan Agong (YdPA), whom is the supreme head of the Federation.1 He is appointed among the nine Malay Rulers for a period of five years. All nine rulers will have a chance to become the supreme head. Initially the selection is based on seniority, since all rulers had served as the YdPA, the order is now determined by the order of states who has been the YdPA. If the ruler is a minor, he will automatically be disqualified.
Power of the Monarch2
The constitution authorized the YDPA to exercise various functions, namely the custodian of executive power,3 an arm of Parliament,4 guardian to the rights of the Malay5 and
1 Art 32 There shall be a supreme head of the Federation to be called the Yang di-Pertuan Agong… 2 The term monarch refers to Malay Rulers and Yang di-Pertuan Agong. Malay Rulers is the supreme head of the state. 3 Art 39 reads: The executive authority of the Federation shall be vested in the Yang di-Pertuan Agong and exercisable, subject to the provision of any federal law and of the Second Schedule, by Him or by the Cabinet or any Minister authorized by the Cabinet, but Parliament may by law confer executive function on other person. 4 Art 44 states:- The legislative authority of the federation shall be vested in a Parliament, which shall consist of the Yang di-Pertuan Agong and two Majlis (House of Parliament) to be known as the Dewan Negara (Senate) and Dewan Rakyat (House of Representatives).
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religion of Islam6. Besides these functions YdPA is the protector to all Malaysian as indicated in the oath of office. These functions are crucial in the survival of the nation and had become the subject of controversy in the relationship between the monarch and executive.
The power of the monarch is exercisable by Him in two ways, firstly, based on his own discretion, which means His Majesty does not has to seek opinion from other authority, secondly, on advice. The advice may come from the head of the government, Cabinet the Conference of Rulers or other offices. When the power has to be exercised on advice the Constitution stipulates that His Majesty is bound by the advised given.
Role of the Monarchy
The power that the monarch may exercise on advice is mainly in regards of forming a government and ensuring that the government functions effectively. Thus the monarch is given the power to appoint the head of government or to withhold the dissolution of legislature. When appointing the head of the government the monarch has to be sensitive to the feeling of the members of legislative assembly, thus he may appoint someone who received the confidence of the member of the legislative assembly. After the 12th election, at least in two states the head of government is appointed against the wishes of the party presidency.7 The situations become more complex when there is a coalition government. To ascertain the person who likely to command the confidence requires wisdom.8
The monarch will have to ensure that the government can take care of the people well being. Thus if there is a request to dissolve the legislature he has to examine the problem that lead to dissolution is genuine. Thus, if the request will lead to further problem the monarch may refuse to give consent for dissolution. This can be seen in the action of the Sultan of Perak in his capacity as defender of the people refused the application of the coalition government to dissolve the legislature when the defection of three assemblymen causes the coalition to loss majority in the assembly.
The role of the Monarch had always been regarded as ceremonial. This might be true prior to the 2008 election. Recently, there are instances when the monarch comes forward to assert their authority over the conduct of the executive or politicians. This was taken as an exercise of the monarchy rights which comprises of the right to give views and counsel, the right to encourage and motivate, and the right to remind and reprimand.9 The ruler also call for the notion that ‘the Malay Rulers are just ceremonial emblems for official functions with no
5 Art 153 6 Art 3 7 The two states are Terengganu and Perlis. 8 The difficulty is reflected in the state of Perak when the government comprises if a coalition between PAS, PKR and DAP known as Pakatan Rakyat (Citizen Coalition) 9 The Star, 19 April 2009, Rulers are above politics: Sultan Azlan Shah
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vested power’10 to be corrected. The new insight of the role of monarch is important since the institution can act as the balance wheel to the executive power.
The monarch can be perceived as apolitical and has no inclination to any parties. The neutrality of the institution is portrayed when members of the legislature and executive have take oath of office before the monarch. Thus they have to heed the monarch advice when he speaks.
Besides caring for the stability of government, the monarch has to care for the people welfare. His Majesty has to ensure that the people can live peacefully, thus if there is any issue that may cause tension the monarch will step in to remind the people on the importance of the different races to built understanding and respect each others rights. The monarch repeatedly reminds Malaysian on ‘social contract’ and the importance to regard themselves as partners and avoids tension that may lead to violence. Even though the YdPA is constitutionally responsible to protect the Malay and religion of Islam, this does not caused other races to be left out.
Conclusion
The monarch in Malaysia will continues to play an important role and this is evident in their success to curb further decline in Malaysian social compact especially at the time of weak political integrity and economic turbulence.
10 The Star, 9 July 2009, Respect Role of Malay Rulers.
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Reconciling Liberty and Progressive Government
Michael Anthony Lawrence1 Michigan State University United States
Libertarians with progressive sympathies (or progressives with libertarian sympathies) are confronted by a nagging conundrum: that individual freedom and the common-good, almost by definition, seem to be mutually exclusive. If we indiscriminately elevate individual free-will, we risk tragedy-of-the-commons issues; by contrast, if we indiscriminately enact progressive legislation for the common good, we run the risk of inflicting death by a thousand cuts on individual liberty. A concept we may call "Progressive Liberty" is an attempt to reconcile the seemingly contradictory concepts of individual liberty and the common-good. Looking first at the “liberty” half of the phrase, America was founded, first and foremost, to preserve individual freedom from oppressive government. This part is nonnegotiable. America's founding documents - the Declaration of Independence and the Constitution - make the point clearly: the single irreducible value eclipsing all else under the American constitutional regime is liberty. The eminent historian Eric Foner explains, “No idea is more fundamental to Americans’ sense of themselves as individuals and as a nation than “freedom” … or “liberty,” The Declaration of Independence lists liberty among mankind’s inalienable rights; the Constitution announces as its purpose to secure liberty’s blessings…” Historian Bernard Bailyn reports that the most basic goals of the American Revolution were to “free the individual from the oppressive misuse of power, [and] from the tyranny of the state.” To conceptualize, imagine if you will the “Google-Earth” feature of Google; except here, written answers to basic constitutional questions may be viewed in greater or lesser detail by zooming-in or zooming-out. Zooming-out to view the question, “What single value does the Constitution stand for?,” from the widest possible angle, where all detail has been lost leaving only one answer to the question, the answer would read, “Liberty.” Zooming-in, we could next read, “Equality,” “Democracy,” then “Property,” and so on. These more detailed values are simply means to the ultimate end – which is liberty. What to do when government intrudes upon liberty? The framers of the Constitution envisioned that the judiciary would play a key role in protecting liberty from majoritarian excess. James Madison, arguing in support of passage of the Bill of Rights before the First Congress, said, “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.” Addressing a French correspondent, Thomas Jefferson wrote, “the laws of the land, administered by upright judges, … would protect you from any exercise of power unauthorized by the Constitution of the United States.” And in Federalist 78 Alexander Hamilton commented that “the interpretation of the laws is the proper and peculiar
1 Professor & Associate Dean for Graduate, International & Interdisciplinary Programs, Michigan State University College of Law; author of “Radicals in Their Own Times: Four Hundred Years of Struggle for Liberty and Equal Justice in America,” (forthcoming 2010, Cambridge University Press); www.progressiveliberty.blogspot.com.
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province of the courts…. If there should happen to be an irreconcilable difference between [the Constitution and a legislative act]…, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” This is something upon which judges and scholars from across the political spectrum can agree. Conservative icon Robert Bork, for example, has written that “there are some things a majority should not do to us no matter how democratically it decides to do them. These are areas properly left to individual freedom…. Society consents to be ruled undemocratically within defined areas by certain enduring principles believed to be stated in, and placed beyond the reach of majorities by, the Constitution.” In practice, however, conservative ideology has latched onto the idea that the use of judicial review is “undemocratic” and “activist”; and will almost always constitute inappropriate “legislating from the bench.” What this argument ignores, of course, is that the whole point of the Constitution’s scheme of majoritarian government in the first place is to protect liberty and equal justice. As explained by Madison, Jefferson and Hamilton, the true original intent of the framers was that constitutionally-protected liberty and equal justice are not to be sacrificed to majority will. When the Court fails to properly exercise its power of judicial review, liberty and equal justice suffer, because there is simply no other institution left to protect individual and minority rights. During World War I, for example, the Court upheld vast legislative prohibitions on speech; and during World War II it refused to curb executive forced-relocation and internment of thousands of innocent Japanese-Americans. America would look quite different today if the Court – largely under the leadership of Chief Justice Earl Warren, whose strong support of judicial review prompted President Dwight Eisenhower to grumble that his 1953 appointment of Warren to the Court was “the biggest damn-fool mistake I ever made” - had not eventually returned to checking the unconstitutional excesses of the democratically-elected executive and legislative branches.
As for the other part of the progressive liberty equation, how are we to understand how progressive government may proceed in acting for the common good? The first thing to understand is that, as compared to non-negotiable liberty, the “progressive” part of progressive liberty IS negotiable. In a democratic republic, it is the will of the people what sort of society they will have. So long as the government is not infringing on individual freedom, it can set widely varying policy - anything from a minimalist caretaker state to a more progressive social welfare model of the sort seen in Western Europe (or indeed, something more different still than either of these). An energetic position, one that a progressive libertarian would favor, suggests that it is the government's duty to enact humane policy that looks out for people who can't help themselves, and that provides equal opportunity to all. Among other things, this means that government should guarantee that every man, woman, and child have access to basic healthcare. (Incidentally, the framers appeared to be “progressives” of a sort themselves, in that they advocated an energetic government. “Energy in the [government] is a leading character in the definition of good government,” Hamilton wrote in the Federalist 70. Madison agreed. “Energy in government,” he said in No. 37, “is essential to that security against external
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and internal danger, and to that prompt and salutary execution of the laws, which enter into the very definition of good government.”) Does this mean that the Constitution mandates such government involvement? In a word: No. The Constitution sets up the republican form of the government and imposes strict limits on governmental infringements of individual liberty; but it leaves the details of social and economic policy to be worked out by the people through the democratic process. Whether the people prefer a Progressive Society, a Minimalist Society, or some other sort of Society, they control their destiny by voting for representatives who will legislate to that end. That's republican democracy: accountable majorities enacting policy; and if the majorities don't adequately reflect the people's wishes, others are elected who will. Then if at any time the democratically-accountable majority legislates in ways that inappropriately infringe individual liberty, the Constitution (as enforced by the Court) steps in. That's what liberty is about - limited government constrained by a Constitution that protects, above all else, individual freedom......
Now that we have a definition for progressive liberty, let’s look closer at the title of this paper, “Reconciling Liberty and Progressive Government.” Specifically, how are we to know the threshold beyond which a progressive, energetic government may not go, lest it infringe upon constitutionally-protected liberty? An excellent place to start (and perhaps end) is with the "harm principle" enunciated by J.S. Mill in his 1859 classic, "On Liberty":
[There is but] one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, … that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others…. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign."
Putting this into practical terms that government policymakers can apply, we might “think of the harm principle as operating in two steps,” Professor Ian Shapiro suggests. “When evaluating a particular action or policy, the first step involves deciding whether the action causes, or has the potential to cause, harm to others. If the answer is no, then the action is in the self-regarding realm and the government would be unjustified in interfering. Indeed, in that case the government has a duty to protect the individual’s freedom of action against interference from others as well. [The second step occurs] if, however, the answer to the initial query is yes, [in which case] different considerations arise. We are then in a world in which harm is being committed willy-nilly, and the question is: What, if anything, should the government do about it?,” and it is up to the democratic process to work that out.
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In other words, society may legislate – whether progressively or not – either when the legislation (a) simply does not affect individual liberty, and/or (b) when a person’s conduct in exercising individual liberty prejudicially affects, or harms, the interests of others. (Incidentally, some, such as Randy Barnett, would define this latter situation as not involving “liberty” at all, but rather as “license” (which is not protected by the Constitution); on the reasoning that liberty, by definition, cannot harm others). In either case it is open to discussion through the democratic process whether the common good will be promoted. So conceived, the society may strike a balance between liberty and progressive government. It is important to re-emphasize Shapiro’s conclusion, however (perhaps to the point of tedium), that according to the Harm Principle, “short of the point at which a person's conduct affects the interests of no persons besides himself, there is no room for [memorializing into law any such policy discussion.]” Individual liberty prevails in such cases, not to be touched by government. This last point is crucial, in light of government's unceasing, inexorable, and perhaps- inevitable tendency to interfere inappropriately in individual conduct. Alexis de Tocqueville presciently identified the danger of an overactive government in his 1830 masterpiece, Democracy in America, stating: “[In a maturing democracy,] a wholly new species of oppression will arise. Among citizens equal and alike, the supreme power, the democratic government, acting in response to the will of the majority, will create a society with a network of small complicated rules, minute and uniform, that none can escape. Ultimately, then, the citizens of a democratic country will be reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.” To some in America today, this scenario sounds uncomfortably familiar. Once again, under our constitutional regime it is the role of the judiciary to prevent this sort of creeping tyranny from occurring. One difficulty, though, is that ever since 1937 the Supreme Court has applied a disproportionately deferential standard of review to government action - to the detriment of individual liberty. (This occurred largely as a backlash to the Supreme Court overstepping its bounds during the mid-1930s when it aggressively struck down FDR’s New Deal legislation. Throughout the rest of the 20th and into the 21st century, the Court has swung too far in the other direction by not going far enough in requiring government (particularly state and local government) to justify its actions that may potentially affect liberty interests.) A more deferential-to-liberty standard of judicial review is needed, perhaps modeled on the Court’s existing First Amendment “reasonable time, place and manner” doctrine, as I suggest in a 2007 Louisiana Law Review piece. This approach, already championed on a narrow basis by the Third Circuit Federal Court of Appeals in Lutz v. York in 1990, more accurately honors the Constitution’s core Liberty-first ideals, while also recognizing the proper constitutional role of government in maintaining law and order.
In conclusion, government is liberty’s servant in America. Government – and democracy itself - exists primarily to protect liberty, with the Constitution serving as the bulwark against inevitable government attempts toward overreaching. The framers understood that men are not angels and that power has the overwhelming tendency to corrupt, so they constructed a limited government of separated powers with the ultimate power reserved to the people to operate within their own self-imposed constitutional constraints.
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That said, to the extent government action does not implicate liberty, the details of social and economic policy are to be worked out by the people through the democratic process. One can be a staunch supporter of liberty on one hand; while working actively through the democratic process to enact progressive, energetic policy. That, in essence, is progressive liberty.
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Please refer to 127 for Professor Jack Tsen-Ta Lee’s paper entitled “Freedom of Speech and Contempt by Scandalizing the Court in Singapore”
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Nurturing Constitutionalism through the Courts: Constitutional Adjudication and Democracy In Nigeria
Tahir Mamman* and P. Chibueze Okorie** Nigerian Law School Nigeria
INTRODUCTION
Nigeria commenced its third wave of constitutional democracy in 1999 with constitutional framework patterned after the American variety of presidential system with its fairly, clearly defined division of powers among the arms of government and the complex systems of checks and balances. The Presidential System was also foisted on an already existing federal structure which, ironically, was preserved, in legal and political terms, by the military despite the unified command and hierarchical structure of military governments. The 1999 Constitution was fashioned and imposed by the military despite the dubious claim in its preamble which says “We the people of the Federal Republic of Nigeria: having firmly and solemnly resolved… do hereby make and give to ourselves the following constitution”.1
Due to many years of military governments, democratic culture and institutions remains under- developed. In fact, a great deal of militarised culture pervades governments and the society at large which politicians in particular find convenient and seem less inclined to unlearn. This pose fundamental challenges to the development and practice of constitutionalism and the rule of law precepts whose key underlying elements and advocacy rest on the pillars of supremacy of the constitution, separation of powers, and guarantee of fundamental rights and freedoms.2 Adherence to these elements is what makes a government constitutional and democratic.
The Nigerian courts even under military dictatorship, were able to preserve constitutionalism to an extent3 and did not suffer the same fate that the legislature had during the military regimes. 4
Since transition to civil rule in 1999 however, the courts have played a much more pronounced and critical role in settling varieties of disputes and becoming a bulwark for constitutional democracy and guarantee of fundamental rights – what Nigerians labelled as the “last hope of the common man”. In this regard, one can easily extend to Nigeria, Mendes observations in relation to Brazil that “…nowadays, constitutional adjudication is characterised by the
* Ph.D (Warwick), Director-General, Nigerian Law School, Bwari,Abuja. ** LL.M, Deputy-Director (Academics), Nigerian Law School, Bwari, Abuja. 1 Constitution of the Federal Republic of Nigeria,1999. ( Hereinafter referred to as the 1999 Constitution ). 2 Mowoe K.M.,Constitutional Law in Nigeria, Malthouse law books 2008, p.56 3 Lakanmi and others v AG Western State (1971) .U.I.L.R 201 S.C; 4 They were preserved by win some, loose some, cat and mouse relationship with the military in their adjudicatory roles.
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originality and diversity of the proceedings aimed at reviewing the constitutionality of the government’s actions and protection of fundamental rights”.5
In broad terms, some of the provisions of the 1999 Constitution have generated intense, emotional debates on a wide spectrum of issues which range from control of natural resources between Federal and State governments, revenue sharing, power sharing between Federation and States; to States and Local government creation, tenure of office and perks for elected office holders among others. Many of these issues have been litigated upon ferociously in the courts to the extent that the last 10 years of democracy have infused more constitutional litigations in the system than any period in the history of Nigeria
THE COURT STRUCTURE/POWERS
The 1999 Constitution had secured to a substantial level judicial independence in Nigeria. By section 6 (1) & (2),6 the judicial powers of the federation and of the states are vested in a hierarchy of courts with the Supreme Court of Nigeria at the apex, to act as a check on the activities of the other organs of government so as to promote good governance and respect for individual rights and fundamental liberties.7
From the outset, the Supreme Court saw the responsibility of interpreting the constitution as something going beyond the black letter of the law so as to give effect to the intention of the legislature or the people.8 Thus, the supreme court cautioned that mere technical rules of interpretation of statutes are inadmissible to defeat the principles enshrined in the constitution and that the courts should whenever feasible and in response to the demands of justice, lean to the broader interpretation.9 This is perhaps, the reason for the conclusion by Benjamin Davies that “judges really cannot avoid making law”10 and indeed, the justification for judicial activism.11
There is no doubt that the judicial approach to the interpretation of the 1999 constitution has been largely activist. The period of last 10 years of democracy in Nigeria has witnessed a revolution in the judicial sector, transforming it into, by far, the most credible arm of the government.
5 Mendes, G, “New Challenges of Constitutional Adjudication in Brazil”, Brazil Institute Special Report, November, 2008. 6 1999 Constitution. 7 Uwais, M.L, “The Evolution of Constitutionalism in Nigeria: The Role of the Supreme Court Under the 1979 and 1999 Constitutions”, Nigerian Institute of Advanced Legal Studies Inaugural Distinguished Fellows’ Lecture, 2006 8 This, according to the supreme court ,is so because “the function of the constitution is merely to establish a framework and principles of government, broad and general in terms intended to apply to the varying conditions which the development of our general communities must involve...” Per Udo Udoma, JSC, in Nafiu Rabiu v The State (1981) 2 NCLR 293 at 326; See also Agua Limited v Ondo State Sports Council [1988] 4 NWLR (Pt. 91) 622; Mohammed v Olawunmi [1999] NWLR (Pt. 133) 459; Chime v Ude [1996] 7 NWLR (Pt. 461) 379 9 Per Udo Udoma, JSC, in Nafiu Rabiu v The State (supra). 10 Davies, B.T., “Constitutional Adjudication 1” Utah Bar Journal, August 2006., 11 The theory of judicial activism assumes that every legislation has a purpose and that the constitution is a social charter of a dynamic society based on certain ideological or philosophical presuppositions. Consequently, in interpreting the constitution, it seeks to ascertain these underlying principles and give effect to them- Okere, B.O., “Judicial Activism or Passivity in Interpreting Nigerian Constitution”, Unpublished Lecture.(In possession of the authors)
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This has manifested in a number of landmark decisions of the courts in diverse areas12 which no doubt have helped to reshape the nation for good. A few of these decisions are considered here.
THE COURTS AND THE 1999 CONSTITUTION
Political Party Registration and Intra Party Wrangles
The main vehicles for actualising constitutional democracy and democratic representation are the political parties and the electoral process. Specifically, the key stakeholders in the driver’s seat in this regard are the political class/political parties, the election management agency and the electorate.
The Constitution13 and the Electoral Act14 made elaborate provisions for the registration of political parties and good democratic practices among politicians and political parties.
Initially, the national electoral body sought to carry out the party recognition such as to narrow down the number of parties in the country. This was resisted by some of the politicians who challenged it in the courts15 and an attempt by the Electoral Commission to impose further requirements outside the constitutional requirement was rebuffed by the Supreme Court in Independent National Electoral Commission(INEC) v Balarabe Musa.16
This liberal interpretation enabled the widening of the political space through the eventual registration of 54 political parties. It also offered alternative platform for politicians who could not fit into existing parties or association to pitch tent with other parties or form new ones rather than seek to encourage military intervention or resort to violence.
Having secured registration, the internal workings of the parties became a major area of crisis in the constitutional experiment. Most of the political parties emerged from a merger of strange bedfellows and associations that were not anchored on ideological benchmarks, other than the desire to ascend to power by a few powerful individuals using any means. As a result, the parties were replete with splinters and factions. With this mindset, all the political parties showed no respect for internal democracy. In most of the parties, there were no democratic
12 It is impossible, given our constraint in space, to discuss or even mention all such cases here. The following supreme court decisions and others mentioned elsewhere in this paper are all examples: Peter Obi v Independent National Electoral Commission(2007) 7 SC 268; Amaechi v Independent National Electoral Commission [2007]18 NWLR (Pt.1065)105;Peoples Democratic Party v Independent National Electoral Commission 92001) 1 FWLR (Pt. 31) 2735; Dapionlong v Dariye [2007] All FWLR (Pt.373) 81; Attorney- General of Federation v Abubakar [2007] All FWLR (Pt.375) 405;Ladoja v INEC [2007] All FWLR (Pt. 377) 934; Action Congress v INEC [2007[ All FWLR (Pt. 378) 1012; Obi v INEC [2007] All FWLR (Pt. 378) 1116. 13 S.222,-229 1999 Constitution 14 The Nigerian Electoral Act 2006 15 National Conscience Party v Independent National Electoral Commission(2005) All FWLR (Pt. 281) 325. INEC under Dr Abel Guobadia as chairman had registered 3 political parties in addition to 3 created by the military regime. It however refused to register Chief Gani Fawehinmi’s National Conscience Party consequent upon which the action was instituted challenging the refusal. 16 (2003) 1 SC (Pt.1) 106 See also AG Federations and Abubakar (supra).
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selections of the candidates while in others that attempted a fair level of primaries, the results were thrown overboard and party leaders arbitrarily picked candidates they preferred whether or not the candidates won the primaries.17
These arbitrariness led to a deluge of litigations in the courts largely over selection of candidates. The initial attitude of the courts was to hands-off intervention on the ground that the courts will not choose candidates for the political parties as it involves the internal affairs of the parties. However, following widespread abuse, and expression of concern nationally, the Courts modified their stand to decide that where the parties have set rules for the selection, the Courts will intervene to ensure compliance with those rules.18
Disqualification from Election
The constitution19 prescribes eligibility requirements for candidates seeking to vie for various offices ranging from Councillors at the local government level to the President of Nigeria. These requirements include inter alia, age,20 educational qualification,21 non conviction or indictment even by administrative panels.22
The whole idea is the election of people who are clean and stand on a high moral ground to provide exemplary leadership for the country. However, as feared, this became a major arena of controversy with opposition politicians charging the electoral body with partisanship against opponent candidates or candidates who although were in the ruling government, were perceived not to be supportive of the government.
The most celebrated of such cases23, was the initial exclusion of the then Vice President Atiku Abubakar. 24 The Vice President had as a result of a major rift between himself and the President established another political party and sought to contest for the office of the President without resigning his position as Vice-President. The government had earlier set up an administrative panel of inquiry and issued a white paper on it containing a list of those indicted for sundry offences, who under the constitution are disqualified from contesting for election. Some of those affected including the Vice-President challenged the decision in the court.25
17 Amachi v. Independent National Electoral Commission (Supra) 18 Per Tobi JSC in Inakoju v Adeleke (2007) FWLR (Pt.353) 3 p.119-120.
19 S.65&66(qualification and disqualification for election into the National Assembly;, S.106&107 (qualification and disqualification for election into the State House of Assembly);S.131 &137 (qualification and disqualification for election as president); S.177&182 (qualification and disqualification for election as governor). 20 The age qualification into the National Assembly is at least thirty years S.65(1)(a), for presidential candidate is at least forty years S131(b). 21 Into the National Assembly(S.65(2)(a)) and presidency(S.131(c)) is at least school certificate or its equivalent 22 S.137(1)(d);S.182(1)(d)(e) 23 Abubakar v Attorney-General of Federation (2007) 6 NWLR(Pt.1031) p.626; (2009) All FWLR(Pt. 456) p.1
24 The vice president to president Olusegun Obasanjo 25 Abubakar v A.G Federation & Ors (Supra)
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He lost in the Court of Appeal but barely five days to the Presidential election of 2007, the Supreme Court26 overruled the judgement of the Appeal Court which cleared the Vice- President to contest for the Office of the President – 5 days to the elections.27
The Impeachment Process
No democratic era in Nigeria had witnessed as many impeachments as have occurred in the last 10 years of Nigeria’s democracy.28 The indiscriminate manner in which this has been done and the illegalities that characterize most of the impeachments have tended to threaten the nascent democracy especially with the emasculation of the courts by the ouster provisions of section 188(10 ) of the 1999 constitution.29
Despite this provision, the courts have intervened in cases where the legislature had failed to follow the procedure laid down in the constitution for the removal of the governor or the deputy governor30 thereby averting political crisis in the country.
Immunity Clause
One of the most criticised provisions of the 1999 constitution is section 308 first introduced as section 267 of the 1979 constitution to provide for immunity of the president, vice-president, governor and deputy-governor from judicial processes. This insulation of the leadership of the executive from judicial process is generally believed to encourage executive lawlessness, engender abuse of power and shield corrupt practices by such leaders. Initially, the provision was understood and applied by a Federal High Court as a bar to investigation of such officers31. On appeal however, the Supreme Court reversed the decision32to hold that the immunity clause did not prevent the investigation of the affected public office holders although they can neither be prosecuted nor arrested while in office. This decision has since offered the necessary impetus for law enforcement agencies to investigate allegations of crime against such officers while they are in office and build a file which could and indeed, have been used for prosecution on exit from office.
26 Abubakar v A.G Federation &Ors (2007) 6 NW.L.R (Pt.1031) p.626 27 See also A.N.P.P v Usman (2009) ALL FWLR (Pt. 463) p.1229
28 Some of the impeachments include those of Governors Rashidi Ladoja(Oyo Stae), Joshua Dariye( Plateau State), Peter Obi (Anambra State), Diepreye Alameyeseigha (Bayelsa State), Ayodele Fayose (Ekiti State). Ladoja, Dariye and Obi successfully challenged their removal and were re-instated. Alameyeseigha and Fayose did not challenge theirs. Other impeachments include the following deputy governors: Abdullahi Arugungu (Kebbi State), Iyiola Omisore (Osun State), John Okpa (Cross Rivers State) and Enyinnaya Abaribe (Abia State). 29 The position earlier taken by the courts on this as laid down in the Court of Appeal decision in Balarabe Musa v Kaduna State House of Assembly (1984) was that impeachment of a state governor was a purely legislative constitutional affair which was outside the jurisdiction of the courts. Consequently,the court in that case declined jurisdiction in the face of a clearly illegal and unconstitutional removal of Governor Balarabe Musa by the Kaduna State House of Assemby. Despite the intense criticism of this decision by eminent constitutional lawyers,(see for example Nwabueze, B.O., Nigeria’s Presidential Constitution 1979-1983, Longman, 1985, p.339-340) it was followed in Abaribe v Speaker of Abia State House of Assembly [2002] 14 NWLR (Pt.778) 46 30 See Inakoju v Adeleke (Supra note 18) 31 Indeed, so did the Trial Judge, Egbo-Egbo, J,hold in Fawehinmi v Inspector-General of Police [2002] 7 NWLR (Pt.767) 606 32 (Supra).The court however refrained from ordering mandamus to compel investigation by the police being a question of discretion.
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Anti- corruption war
The underlying attempt to frustrate the war against corruption under the guise of non interference in State matters by the Federal Government was resisted by the Supreme Court in Attorney-General of Ondo State v Attorney-General of Federation33. Persuaded by the need to eradicate corrupt practice and abuse of power to ensure good governance in Nigeria, the supreme court shunned the invitation to declare the Corrupt Practices and Other Related Offences Act 2000 as unconstitutional on the ground that corruption was neither under the exclusive nor concurrent legislative list and therefore outside the competence of the National Assembly to legislate on. The court rather, on a liberal interpretation of relevant sections,34 held that a legislation for the abolition of corrupt practices and abuse of power was within the competence of the National Assembly to enact.
Human Rights
Guaranty of human rights and fundamental freedoms is one constitutional limitation on legislative and executive powers without which a government cannot rightly be called a limited or constitutional government.35 The importance of these rights is further bolstered by Fundamental Human Rights (Enforcement Procedure) Rules 1999, which introduced speedy process for dealing with cases on infringement on Fundamental human rights. The commitment is so strong as to have led the courts to enforce it even when knowing its decision would not have practical effect. In Nasiru Bello v Attorney-General of Oyo State,36 the supreme court held that the execution by government of a death sentence on a person prior to the determination of his pending appeal on the conviction and sentence was illegal, and unconstitutional and an infraction of his right to life and the right to have his appeal heard as guaranteed by the constitution.
Procedurally, the courts have also in an effort to ensure unhindered access to the courts for enforcement of human rights, liberalised the jurisdiction of the high courts to entertain fundamental rights cases under the constitution, 37 as well as the methods of approaching the courts.38 They have also extended the right of action for enforcement of rights to companies39 and liability for violation to individuals40 none of which is expressly provided for in the
33 [2002] 9 NWLR (Pt. 772) 222. The Supreme Court further approved of the decision in Federal Republic of Nigeria v Alhaji Mika Anache, In Re Chief Adebiyi Olafisoye (2004) 1 SC (Pt.11) 27 344 (2), 15 (5) and items 60(a) and 67 of part 1 of the 2nd Schedule to the constitution 35 Nwabueze, B.O, Judicialism and Good Governance in Africa, op. cit. Page 91 36 [1986] 5 NWLR (Pt. 45) 828 37 Grace Jack v University of Agriculture Makurdi [2004] 5 NWLR (865 ) 208. The decision has been criticized though on the ground that it is inconsistent with the clear provisions of the constitution which does not fovour such liberalization. Okorie, P.C., “The Extent of the Jurisdiction of the High Courts to Try Fundamental Human Rights Cases in Nigeria: A Review of the Supreme Court Decision in Grace Jack v University of Agriculture Makurdi”, Nigerian Bar Journal, Vol. 1 . Indeed, the criticism itself is evidence of liberalism of the Supreme Court in its determination to enforce human rights. 38 Federal Republic of Nigeria v Ifegwu [2003] 15 NWLR (842) 113; Abacha v Fawehinmi [2000] 6 NWLR (Pt. 660) 228; Saude v Abdullahi[1989] 4 NWLR (Pt.116) 387. 39 Onyekwuluje v Benue State Government [2005] 8 NWLR (Pt. 928) 614 40 Theresa Onwo v Nwafor Oko [1996] 6 NWLR (Pt. 456) 584
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constitution. They have however failed to be availed of the opportunity to enforce socio- economic rights. 41
CONSTRAINTS IN CONSTITUTIONAL ADJUDICATION
The duty of the court is to adjudicate. The apparatus for execution remains with the executive. The ends of justice will truly be served and democracy sustained only when decisions of courts are respected and enforced, especially by the executive. This unfortunately, has not been so in Nigeria42 which was lamented by the former Chief Justice of Nigeria, the Honourable Justice M.L Uwais, who described disobedience to court orders as an invitation to anarchy and total breakdown of law and order-a resort to ‘Thomas Hobbes’ State of Nature.43
Judicial self restraint is another constraint to constitutional adjudication. Ideally, judicial self restraint should be an expression of the need to allow a broad construction of constitutional grants of power and not a justification for abstention from intervention for the protection of the individual against violations of the law, especially of the prohibitions of the constitution.44 It appears however, that the application of the concept of judicial self restraint in Nigeria has leaned more towards the latter which manifests as avoidance of political and constitutional questions finding best expression in the restrictions of locus standi and jurisdiction. The readiness of the courts to decline jurisdiction in the face of clear constitutional violations either for want of jurisdiction or absence of locus standi negates their activist orientation.For Professor Ben Nwabueze, the attitude of the courts has generally been one of declining judicial activism.45
CONCLUSION
No doubt, the effective discharge of the responsibilities of the judiciary depends, inter alia, on the extent of the integrity and independence that the judiciary enjoys, the confidence of the citizens in and respect for the work of the court, and the understanding of the general
41 Abacha v Fawehinmi (supra) 42 See Attorney-General of Lagos State v Ojukwu (19800 1 NWLR (Pt. 18) 621; Attorney- General of Lagos State v Attorney- General of the Federation (2004) 11-12SC, 85
43 Uwais, M.L, “The Evolution of Constitutionalism in Nigeria: The Role of the Supreme Court Under the 1979 and 1999 Constitutions”, op.cit.,p.54 44 Nwabueze, B.O., Judicial and Good Governance in African, op. cit. page 127 45 He relies on the following decisions of the Supreme Court in the last ten years in support of this contention:Attorney-General of Federation v Attorney-General of Abia State [2002] 6 NWLR (Pt.764) 542; Attorney-General of Ondo State v Attorney- General of Federation [2002] 9NWLR (Pt.722) 222; Olafisoye v Federal Republic of Nigeria[2004] 4NWLR (Pt.864)580; Attorney- General of Abia State v Attorney- General of Federation (2003) 1 SC (Pt.11) 1; National Assembly v President of Federal Republic of Nigeria [2003] 9NWLR (Pt.824) 104; Plateau State of Nigeria v Attorney- General of Federation[2006]3NWLR (Pt.966)546; Attorney-General of Anambra State v Attorney- General of Federation[2005]9NWLR(Pt.931) 572; Attorney- General of Lagos State v Attorney-General of Federation [2004] 18NWLR(Pt.904) 1; Amaechi v Independent National Electoral Commission(INEC) [2007] 18 NWLR (Pt.1065) 105; Buhari v INEC(2008) 12SC(Pt.1) 1; Atiku Abubabar v Umaru Yar’Adua (2008) 12 SC(Pt.11) 1.Nwabueze, B.O., Judicialism and Good Governance in Africa, op. cit, p.132-133. On the contrary,however, Uwais has argued and we agree that the following decisions(also mentioned by Nwabueze) are activist and constitute a huge contribution to the development of democracy in Nigeria: Peoples Democratic Party v Independent National Electoral Commission (2001) 1FWLR 2735;Independent National Electoral Commission v Balarabe Musa (2003) 1 SC (Pt. 1) 106;Attorney-General of Lagos State v Attorney- General of Federation (2004) 11-12 SC 85; Attorney- General of Ondo v Attorney-General of Federation (2002) 9 NWLR (Pt.772) 222 , Uwais,M.L., “The Evolution of Constitutionalism in Nigeria: The Role of the Supreme Court Under the 1979 and 1999 Constitutions”, op. cit
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attributes of judicial powers.46 Given all the circumstances, the Nigerian courts, through the constitutional adjudicatory process, have made enormous contribution in stabilizing the polity.
It should be noted that for constitutional democracy to deepen and thrive, the political class will have to demonstrate greater commitments to the rules and assumptions of democracy by changing their mindset. That is, the human element has to be operated alongside the spirit and letters of the Laws which the courts are constantly invited to enforce and thereby drag such courts avoidably into the political arena with the possibility of undermining the courts through a few unpopular judgments.
But by and large, the Courts have within their constitutional space facilitated the process of democratisation in Nigeria and in significant ways channelled redress of grievances to the Courts rather than the streets and the military. Overall, citizens and politicians now readily see the Courts as credible mediating institution in political wrangles whether between or within the political parties.
46 Uwais, M.L., op.cit., p.10
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The Vitality of The American Sovereign Todd E. Pettys∗ University of Iowa United States
(This is a shortened version of a book review slated to appear in 2010 in the Michigan Law Review.)
In American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War (Cambridge University Press, 2008), Christian Fritz argues that there was an ongoing battle in the eighteenth and nineteenth centuries between two competing understandings of the American people’s sovereignty. The narrow understanding held that the people may influence day-to-day governmental affairs only through elections and other limited mechanisms that elected officials authorize, and that Article V of the Constitution describes the exclusive methods by which the Constitution may be changed. The broad understanding held that the sovereign people may intervene directly in day-to-day governmental affairs with or without elected officials’ consent, and may alter their constitutional arrangements by any means they deem appropriate. Fritz argues that the narrow understanding of the people’s sovereignty ultimately triumphed. The broad understanding has been “lost . . . as a viable principle” (p. 280), he writes, and for all practical purposes sovereignty today rests in the hands of government officials. In this paper, I dispute Fritz’s conclusion. Ordinary Americans do still sometimes intervene directly in day-to-day governmental affairs in ways that are unauthorized by their elected leaders, and they do alter their constitutional landscape by means other than those formally authorized by Article V. Even more fundamentally, the American people today reject the more extreme strains of the two models that Fritz describes. Americans have determined that their long-term interests often are best served by manifesting their sovereign desires through extended interactions with government officials and institutions—interactions that permit the sovereign people to retain ultimate control over their government and their Constitution, but that permit government institutions to retain the credibility and power they need in order to do the people’s work.
I. DIRECT INTERVENTIONS IN GOVERNMENT AFFAIRS For an example of citizens’ direct intervention in government affairs, consider one of the key moments in the American civil-rights movement. On February 1, 1960, four African- American freshmen from North Carolina A&T College entered a Woolworth’s store in Greensboro, North Carolina, seated themselves at the store’s whites-only lunch counter, and— when told that the store would stand by its racially discriminatory service policies—politely
∗ Professor of Law and Bouma Fellow in Trial Law, University of Iowa College of Law.
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reported that they intended to stay and to return daily until they had received the same service that white customers received.1 By ignoring management’s demand that they leave, the four young men knew they were violating the state’s trespass laws, but concluded “that not until blacks trespassed would their right to equal service be established.”2 As the freshmen’s supporters rapidly grew in number in the following days, North Carolina’s attorney general urged the store’s management to have all of them arrested on trespassing charges, but Woolworth’s ultimately chose to desegregate instead. That incident and others like it across the South helped fuel a civil-rights movement that culminated in sweeping legislative and social changes—changes that, while certainly not curing all of the nation’s racial evils, carried the cause of progress a very long way indeed. By breaking the law and agreeing to suffer the consequences, the protestors hoped to draw attention to their cause and provoke their leaders to respond. Yet the students were doing much more than merely protesting. By engaging in the very conduct that they believed society’s laws and norms ought to permit and protect, they were claiming not merely the power to express their views about the legal and social order they desired, but the greater power to play a direct role in constructing it. The students and their supporters, in other words, began to live the regime they preferred. As William Chafe puts it, the students and other like- minded law-reformers in the 1960s demonstrated that they would not “allow anyone else to define their rights.”3 By forging ahead with the construction of a new regime, rather than waiting until they had won the support of those who had been formally elected to positions of power, the Greensboro students and others like them served “as the catalyst that triggered a decade of revolt—one of the greatest movements in history toward self-determination and human dignity.”4 In the Greensboro students, one can easily spot the genealogical residue of those whom Fritz cites as exemplars of the broad view of sovereignty, such as the citizens who shut down Massachusetts’ debt-collecting courthouses in the 1780s and the citizens who disrupted the efforts of federal whiskey-tax collectors in the 1790s. Like their early-American predecessors, the students and their supporters were seeking to accomplish “what voting, coalition- formation, bargaining, and observation of the rules of the game could not.”5 Rather than engage in traditional forms of political persuasion and then defer to the ultimate judgment of elected officials, these activists took matters into their own hands, such that “elections, court decisions, and even legislative victories were the events that punctuated the real ongoing
1 See WILLIAM H. CHAFE, CIVILITIES AND CIVIL RIGHTS 112-20 (1980) (describing the encounter). 2 Id. at 141. 3 Id. at 131. 4 Id. at 137. 5 BURTON ZWIEBACH, CIVILITY AND DISOBEDIENCE 168 (1975) (analogizing such acts of civil disobedience to “the plotting of the American revolutionists”).
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political process.”6 They embraced, in other words, an expansive view of the American people’s sovereignty. Sovereignty-claiming citizens’ interventions in day-to-day governmental affairs are not limited to Greensboro-style acts of civil disobedience. For example, although the Supreme Court has insisted that “it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be,”7 jurors nevertheless sometimes exercise their power to acquit criminal defendants whose guilt they believe has been established beyond a reasonable doubt. When jurors refuse to apply the law as it has been explained to them by the presiding judge, they are taking the law squarely into their own hands and rendering judgments based on their own uncodified conceptions of justice. Just as in eighteenth- and nineteenth-century America, citizens today can disagree sharply about whether those who take matters into their own hands are legitimately expressing the will of the sovereign people or are illegitimately thwarting the actions of the people’s elected representatives. Consider, for example, events in Florida during the controversial presidential election of 2000. When Florida officials began to recount ballots by hand using varying criteria, a number of George W. Bush’s supporters (some of them staffers from Capitol Hill, some of them citizens from Florida and elsewhere) appeared at sites where the ballots were being recounted, hoping to disrupt the recount and thereby preserve Bush’s apparent victory. If one asks a politically diverse group of people today how they perceived those disruption efforts, one is likely to hear two very different stories. In the eyes of many Al Gore supporters, the interventionists were bullying thugs who were illegitimately thwarting Florida officials’ attempt to do their jobs. In the eyes of many Bush supporters, the interventionists were heroically attempting to thwart an illegitimate recount. Where would the interventionists and those who applauded them get the idea that they were entitled to step in when they objected to decisions made by Florida’s election officials? Rightly or wrongly, they would get it from the broad view of the people’s sovereignty that Fritz mistakenly believes no longer plays a meaningful role in American public life.
II. THE SOVEREIGNTY DANCE On most occasions, however, citizens choose to operate within the constraints of the nation’s officially approved lawmaking procedures. They make that choice for at least two reasons. First, citizens ordinarily comply with the nation’s approved lawmaking procedures because they intuitively recognize that it would be against their interests to strip the nation’s legislative, executive, and judicial bodies of the aura of respect and power they need in order to remain effective instruments of the people’s will. Each time unhappy citizens circumvent the nation’s ordinary lawmaking mechanisms, they risk discrediting the institutions in which those mechanisms are housed and thus risk undercutting their ability to rely upon the power of those
6 BARBARA RANSBY, ELLA BAKER AND THE BLACK FREEDOM MOVEMENT 370 (2003). 7 Sparf v. United States, 156 U.S. 51, 102 (1895).
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institutions in the future. Similarly, if citizens play outside the nation’s ordinary lawmaking rules today because they are unhappy with the outcomes that compliance with those rules would likely yield, they weaken their ability to insist that their opponents play by those same rules when the tables are turned tomorrow. Second, and even more fundamentally, the American people have learned that, when they wish to change the status quo, they generally need not choose between either trying to take the reins of government entirely into their own hands or passively hoping that the next round of elections and judicial appointments will produce like-minded leaders. By patiently joining with government officials in what I call the “sovereignty dance,” the American people can permit those officials to retain the power and relevance they need in order to do the people’s work, but can ensure that the sovereign people’s desires ultimately will prevail. The most striking examples of the sovereignty dance may be found in the area of federal constitutional change—the area in which one might initially think citizens are most at the mercy of their elected leaders. On the constrained view of the people’s sovereignty (the view Fritz believes has long prevailed), the nation’s constitutional commitments may be altered only when the people’s elected leaders take the country through the formal amendment process specified in Article V. If that were an accurate description of the American constitutional system, one would expect to find no significant changes in the nation’s constitutional bearings other than those springing from alterations of the nation’s formally ratified constitutional texts. As a description of how constitutional change actually occurs in modern America, however, that account is patently false. As Bruce Ackerman recently observed, “every American intuitively recognizes that the modern [formal] amendments tell a very, very small part of the big constitutional story of the twentieth century—and that we have to look elsewhere to understand the rest.”8 In areas ranging from the dramatic increase in the scope of the federal government’s regulatory power, to the increased power of the President, to the recognition of a right to privacy and other civil rights, to dramatic reforms of the criminal justice system, vast changes have been made in America’s constitutional landscape over the past century without any provocation from newly ratified constitutional texts. Although scholars have not yet agreed upon a comprehensive account of how non-Article V amendments are proposed, debated, and ultimately accepted as part of the nation’s constitutional canon, any credible account will acknowledge that ordinary citizens often play leading roles in the process. In the modern era, for example, it often is through citizen-led social movements that the status quo is publicly called into question and the possibility of constitutional change is placed—and kept—on the nation’s agenda. The heart of the sovereignty dance may be found in the period between the placement of an item on the nation’s constitutional agenda (whether by citizens, politicians, or the courts) and the eventual perception of actual constitutional change. During that time, the citizenry, politicians, and judges engage in an extended conversation, a conversation marked by proposals and counterproposals, actions and reactions, as citizens and officials signal their
8 Bruce Ackerman, The Living Constitution, 120 HARV. L. REV. 1737, 1750 (2007).
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desires and intentions and then wait for others to respond. Through their participation in political parties and other organizations, citizens work to install their allies in positions of governmental power and respond to officeholders’ behavior, while those same officeholders seek to mobilize like-minded citizens and respond to the behavior of the citizenry. The goal shared by all participants in that ongoing exchange is to propose the synthesis of the nation’s constitutional values that ultimately wins the acceptance of the sovereign citizenry. Citizens also play a powerful role in shaping the culture in which voters’, politicians’, and judges’ values are formed. Women who acted upon reconceived career and family objectives in the 1960s and ’70s, for example, offered new models of womanhood and helped to shape the social norms that ultimately were manifested in the Court’s equal-protection and privacy rulings. Similarly, by taking their relationships public and winning for themselves an ever- increasing public perception of normalcy, same-sex couples have shaped the culture in ways without which rulings such as Lawrence v. Texas9 would be difficult to imagine. The people’s control over their government is thus indirect, but nevertheless very real. Consider the property owner who engages in a series of exchanges with an architect about the design of a new home, with the owner and the architect repeatedly reacting to one another’s contributions to the process, but with the owner holding the ultimate power to choose the final design. It is much the same in the realm of constitutional politics. Politicians and judges are responsible for drafting most of the operative texts in their repeated interactions with the citizenry, but it ultimately is the sovereign American people who decide when an acceptable constitutional settlement has been reached. This untidy, patience-demanding process is marked by the very same kinds of uncertainties that champions of the broad view of the people’s sovereignty confronted in the eighteenth and nineteenth centuries. Yet those uncertainties are part of what makes that dance so attractive to the American people. The very fact that one often cannot know with certainty whether the sovereign people have rendered their final judgment on a given matter— and that much about the Constitution’s meaning thus remains both contestable and contested—helps to ensure that a diverse citizenry will remain bound together by the project of interpreting their shared constitutional traditions, and by the hope that the national community might yet turn in the direction that one prefers. Relatedly, the dance’s polycentrism ensures that the sovereign people will get the benefit of numerous voices and perspectives before settling upon any particular constitutional arrangement. Ronald Dworkin points out, for example, that the courts bring to the nation’s constitutional debates a valuable focus “on matters of principle” that other governmental actors are unlikely to provide.10 Perhaps most important of all, engaging in the sovereignty dance with government officials ensures that while government institutions will ultimately yield to sustained manifestations of the sovereign people’s will, those institutions are not so susceptible to
9 539 U.S. 558, 578-79 (2003) (holding that the states cannot criminalize private, consensual sexual activity between adults of the same sex). 10 RONALD DWORKIN, FREEDOM’S LAW 345 (1996).
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pressure that they lose their capacity to enforce the people’s will against outliers once a constitutional settlement has been at least temporarily achieved. A government institution cannot be trusted to offer our opponents meaningful resistance tomorrow if we do not permit it to provide us with meaningful resistance today. We don’t shove our government institutions to the side when we believe they have made a misstep; we take a patient breath and continue to dance. The American people’s tactics may have changed over the past two centuries, but their objective remains the same. The sovereign people will get what they want in the end.
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Poverty and Constitutional Rights
Prof. Mónica Pinto University of Buenos Aires Argentina
Poverty is one of the main challenges that Latin American states face. The relationship poverty-human rights appears as unavoidable. It assumes a situation in which men, women and children are deprived from citizenship.
As far as the 90s, the human rights community decided to start studying the phenomenon of poverty and its relationship with human rights. The World Conference on Human Rights declared in Vienna in 1993 that “[T]he existence of widespread extreme poverty inhibits the full and effective enjoyment of human rights; its immediate alleviation and eventual elimination must remain a high priority for the international community^”1.
Further it affirmed that “extreme poverty and social exclusion constitute a violation of human dignity“2. Five years later, the UN Commission on Human Rights went a step further and reaffirmed that “extreme poverty and exclusion from society constitute a violation of human dignity and that urgent national and international action is therefore required to eliminate them”3.
Poverty is a violation of human dignity. In the jurisprudence of the Inter-American System, it has been held that “The duty of the State to take positive measures is stressed precisely in relation to the protection of life of vulnerable and defenseless persons, in situation of risk, such as the children in the streets. The arbitrary deprivation of life is not limited, thus, to the illicit act of homicide; it extends itself likewise to the deprivation of the right to live with dignity. This outlook conceptualizes the right to life as belonging, at the same time, to the domain of civil and political rights, as well as economic, social and cultural rights, thus illustrating the interrelation and indivisibility of all human rights”4.
In the wake of the 21st century, the UN Committee on Economic, Social and Cultural Rights asserted that poverty constitutes a denial of human rights5. Superseding economic approaches, the CESCR proposes that today, poverty is usually understood as the lack of basic capabilities to live in dignity. This definition recognizes poverty's broader features, such as hunger, poor education, discrimination, vulnerability and social exclusion6. Moreover, “in the
1 Viena Declaration and Programme of Action, A/CONF.157/23, §14 2 Id. §25 3 UN Comission on Human Rights, resolution 1998/25, Huma Rights and extreme poverty 4 I/A Court HR, Street Children (Villagrán Morales et al vs. Guatemala), Merits, sentenced November 19, 1999, Series C N°63, Concurring Opinion of Judges Cançado Trindade and Abreu Burelli, §4 5 Poverty and the International Covenant on Economic, Social and Cultural Rights, UN Doc. E/C.12/2001/10, §1 6 Id §7
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light of the International Bill of Rights, poverty may be defined as a human condition characterized by sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living and other civil, cultural, economic, political and social rights”7.
Democratic governments should deal with poverty from a human rights approach. It means assuming exclusion and excluded as social actors in the strategy, superseding the assistance approach, and replacing it by a rights approach.
In a human rights approach, right-holders have claims and States have duties. There is room for a participated elaboration of policies and strategies. That is the case of the communities of Bolivia, Dominica, Grenada, Guyana, Haití, Honduras and Nicaragua that participated in the Poverty Reduction Strategies of the World Bank.
The struggle against poverty requires the strict enforcement of economic, social and cultural rights8. The point at stake is not whether they can be brought to the courts but that they be the object of public policies. Human rights treaties usually contain a clause whereby state parties have the duty to take the necessary steps to adopt legislative or other measures as may be necessary to give effect to the protected rights9. The theory behind these provisions is that every state party will take the necessary steps to prepare its legal framework in order to be able to enforce the treaty. Additionally, these treaty provisions usually leave it to the concerned states to determine the method of integrating the relevant treaty “in accordance with its constitutional processes and with the provisions of the present Covenant.”10 In Latin America, the principle of the supremacy of constitutional rules is in force in the great majority of countries. Some Constitutions recognize a higher ranking to international treaties over domestic legislation like the Constitution of Paraguay of 199211 and the Argentinian Constitution of 199412; others keep silent on the point even when legal authorities tend to assume that they also recognize the prevalent international law, like the Uruguayan Constitution of 199713.
7 Id. §8 8 All Latin American Status are parties to the International Covenant on Economic, Social and Cultural Rights and 14 of them are parties to the regional instrument dealing with the same rights 9 International Covenant on Civil and Political Rights art. 2(2), opened for signature Dec. 16, 1966, 999 U.N.T.S. 171, 173; American Convention on Human Rights art. 2(1), July 18, 1978, 1144 U.N.T.S. 143, 145 10 ICCPR, supra note 7 11 Artículo 137: La ley suprema de la República es la Constitución. Esta, los tratados, convenios y demás acuerdos internacionales aprobados y ratificados, las leyes dictadas por el Congreso y otras disposiciones jurídicas de inferior jerarquía, sancionadas en consecuencia, integran el derecho positivo nacional en el orden de prelación enunciado. 12 Artículo 75, inciso 22º: (...) Los tratados y concordatos tienen jerarquía superior a las leyes(...). 13 Artículo 85 inciso 7º: A la Asamblea General compete: Decretar la guerra y aprobar o reprobar por mayoría absoluta de votos del total de componentes de cada Cámara, los tratados de paz, alianza, comercio y las convenciones o contratos de cualquier naturaleza que celebre el Ejecutivo con potencias extranjeras.”.
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Still others do make a distinction between human rights treaties and other treaties. The Argentine Constitution in force from August 24, 1994 provides for the constitutional hierarchy of eleven international instruments (nine international treaties and two international declarations) “in the full force of their provisions”, that is together with the reservations and the declarations made., so that they do no repeal any section of the First Part of this Constitution and are to be understood as complementing the rights and guarantees recognized herein. They shall only be denounced, in such event, by the National Executive Power after the approval of two-thirds of all the members of each House. In order to attain constitutional hierarchy, the other treaties and conventions on human rights shall require the vote of two- thirds of all the members of each House, after their approval by Congress.
Because of the operation of this provision, international human rights obligations became constitutionalized. More or less in the same context, the Constitution of Perú of 197914, of Guatemala of 199415, of Colombia of 199116, of Bolivia of 200917. Article 5 (2) of the Constitution of Chile of 1980, as amended through 2005, provides for the duty of State bodies to respect and promote fundamental rights of the human being as granted by the Constitution and international treaties ratified by Chile and in force18. In such a case, it is crucial to keep in mind the self-executing nature of international human rights law as a iuris tantum principle.
The Constitution of Uruguay provides that constitutional provision dealing with rights of individuals should not be prevented from application because of lacking of the respective rules.
Brazilian Constitution of 1988 embodies the “prevaléncia dos direitos humanos”, as one of the cardinal principles in the international relations of the State. Accordingly, it has been said that it means the Brazilian engagement towards the international protection of human
14 Artículo 101: Los tratados internacionales celebrados por el Perú con otros Estados son parte del derecho nacional. En caso de conflicto entre el tratado y la ley, prevalece el primero. Artículo 105: Los preceptos contenidos en los tratados relativos a derechos humanos tienen jerarquía constitucional. No pueden ser modificados sino por el procedimiento que rige para la reforma de la Constitución. 15 See expediente Nº 334-95. Also, UN documents E/CN.4/1994/10, #113; E/CN.4/1995/15, # 133; E/CN.4/1996 /15, # 63 16 Artículo 93: Los tratados y convenios internacionales ratificados por el Congreso, que reconocen los derechos humanos y que prohíben su limitación en los estados de excepción, prevalecen en el orden interno. Los derechos y deberes consagrados en esta Carta, se interpretarán de conformidad con los tratados internacionales sobre derechos humanos ratificados por Colombia. 17 Artículo 256. I. Los tratados e instrumentos internacionales en materia de derechos humanos que hayan sido firmados, ratificados o a los que se hubiera adherido el Estado, que declaren derechos más favorables a los contenidos en la Constitución, se aplicarán de manera preferente sobre ésta. II. Los derechos reconocidos en la Constitución serán interpretados de acuerdo a los tratados internacionales de derechos humanos cuando éstos prevean normas más favorables. 18See Rodrigo Díaz Albónico, "La Reforma al Artículo 5º de la Constitución Política" en NUEVAS DIMENSIONES EN LA PROTECCIÓN DEL INDIVIDUO (J.Irigoin ed.), Santiago de Chile, Instituto de Estudios Internacionales Universidad de Chile, 1991, 199-208
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rights19. At the same time, article 5, second paragraph, status that rights protected by the Constitution do not exclude other rights whose source is to be found in the regime of international relations of the country. Legal writings agree in that it means recognizing the constitutional footing of human rights treaties20. Merely fulfilling the obligation of adopting treaty measures, however, is not enough. The Inter- American Court on Human Rights (Inter-American Court), for example, stresses that “[t]he obligation to ensure the free and full exercise of human rights is not fulfilled by the existence of a legal system designed to make it possible to comply with this obligation--it also requires the government to conduct itself so as to effectively ensure the free and full exercise of human rights.”21
The Protocol of San Salvador embodies the economic, social and cultural rights protected by the Inter-American System. Article 19 provides for periodical reporting on the measures taken by governments with a view to fulfilling their obligations under the Protocol.
At OAS General Assembly in 2005, member States adopted a resolution dealing with the Standards for the Preparation of Periodic Reports Pursuant to the Protocol of San Salvador22. The submission of reports shall be governed by the principle of progressiveness – that is the notion of gradual advancement in the creation of the conditions necessary to ensure the exercise of an economic, social, or cultural right – and and by a system of progress indicators. The document states that “A system of progress indicators makes it possible to determine, with a reasonable degree of objectivity, distances between the actual situation and the standard or desired goal. Progress in the area of economic, social, and cultural rights can be measured on the premise that the Protocol of San Salvador expresses a standard against which to assess, on one hand, constitutional compatibility, legal and institutional development, and governance practices of states; and, on the other hand, realization of the aspirations of different sectors of society expressed, inter alia, through political parties and civil society organizations”.
Two points are also worth being mentioned. The first, all the information furnished should bear in mind gender, special needs groups, ethnic and cultural diversity, and participation in government. In this way, the rights protected under Articles 15 to 18 would have a crosscutting effect and make it possible to obtain meaningful information on gender and labor, gender and health, gender and education, children and labor, children and education, the elderly and social security, and persons with disabilities and education, among other possible combinations. In
19 See Nadia de Araujo e Inés da Matta Andreiuolo, “A internacionalizaçao dos Tratados no Brasil e os Direitos Humanos”, , en Os direitos humanos e o direito internacional, comp.Carlos Eduardo de Abreu Boucault e Nadia de Araujo, Rio de Janeiro, Renovar, 1999, 63-114, at p.102 quoting Pedro Dallari and Flavia Piovesan 20 Id., p.103 quoting Celso de Albuquerque Mello, Antonio Augusto Cançado Trindade and Flavia Piovesan 21 Velásquez Rodríguez v. Honduras Case, Inter-Am. Ct. H.R. (ser. C) No. 4, P 167 (July 8, 1988), available at http:// www.corteidh.or.cr/docs/casos/articulos/seriec_04_ing.pdf. At the universal level, Office of the High Comm'r for Human Rights, Human Rights Comm., Int'l Covenant on Civil and Political Rights, General Comment No. 3: Implementation at the National Level (art. 2), U.N. Doc. CCPR General Comment No. 3 (July 29, 1981 22 AG/RES 2074(XXV-O/05)
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this way, information relating to Articles 15 to 18 would be presented in connection with information pertaining to other articles. Ethnic and cultural diversity and civil society involvement in progress in legislative and public policy reform would also provide crosscutting perspectives. The second, regressive measures, in principle, are incompatible with full implementation of the Protocol; it should be recalled that regressive measures are understood as any provisions or policies whose application entails a backward step in the enjoyment or exercise of a protected right. It should be further recalled that the temporary nature of certain regressive measures arising from exceptional circumstances are subject to a different evaluation. At the same time, progressiveness, as a feature of the obligations adopted by the states parties concerned, requires a proactive attitude, and not simply inaction, in order to move toward the proposed objective.
The profile of the document adopted by the Inter-American System tends to avoid any duplication with the criteria and format adopted for the periodical reporting obligation under the ICESCR but also, and perhaps more importantly, to provide States with a tool for public policy in this field.
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Constitutional Adjudication and Democracy Democracy, Popular Sovereignty, and the Courts
Sovereign Immunity, Federalism, and Enforcement of Individual Rights
Professor William J. Rich Washburn University School of Law United States
Courts may obviously act as either friend or foe of “democracy;” judicial decisions that sustain the flow of information and assure access to the ballot box help to sustain democratic principles, and decisions that thwart laws intended to protect individual rights may have the opposite effect. My primary concern is with the latter. In the paragraphs which follow I raise questions about constitutional doctrine established by the United States Supreme Court which elevates principles of sovereign immunity and federalism while subordinating individual rights, especially those derived from federal statutes or treaties. While the problems I describe result from unique aspects of U.S. history, they reflect a broader concern with court-imposed restrictions upon the realization of individual rights.
A constitutional democracy inevitably raises questions about the interplay between elected representatives and the courts. I begin with a baseline expectation that judges have authority to keep actions of legislators and the executive within constitutional boundaries.1 One step removed from that principle is the corollary that courts provide remedies to individuals whose rights have been violated by government officials.2 In the United States, however, while the Supreme Court Justices identified these principles at an early stage in our history, subsequent decisions have moved in the opposite direction. In particular, doctrines of sovereign immunity and federalism have been used to constrain access to meaningful remedies. This problem is most acute in the context of “positive rights” defined by statute or treaty.
The doctrine of sovereign immunity limits the extent to which individuals may successfully sue states for compensatory damages. That doctrine predates the United States Constitution, and reflects an anachronistic concept that sovereigns can “do no wrong.” In a democratic context, the doctrine clashes with the concept of popular sovereignty and the idea that government officials remain subject to ultimate control by the public. While elected representatives may have primary responsibility to legislate remedies for those who have been harmed, courts have an obligation (at least in the constitutional context) to imply remedies when such legislation is lacking.3 When the United States Supreme Court Justices construed
1 Marbury v. Madison., 5 U.S. 137 (1803).
2 Id. Although recognized in principled terms from an early stage in United States history, implementation of this second principle did not really take hold until the middle part of the twentieth century. See Monell v. Department of Social Services, 436 U.S. 658 (1978).
3 See, e.g., Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
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federal statutes authorizing individual actions to enforce the Fourteenth Amendment, however, they concluded that Congress had not authorized suit against states that would conflict with traditional conceptions of sovereign immunity. 4 Presumably, it is up to Congress to address that defect, and to enact new legislation specifically authorizing suits against states that violate constitutional rights.
If that were the end of the story, it would not be of particular interest at an international conference on constitutional law. Two other parts to the story, however, create complications that lead to questions about what is happening in other nations, and experiences that may be compared to those in the United States. The first involves the distinction between negative and positive rights. This distinction has been at the center of international debate for generations. In the United States, special constitutional status has been reserved for negative constraints upon the government. That status is derived from constitutional text. The First Amendment begins with the phrase: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . .” The Fourteenth Amendment provides that: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Within the United States, positive rights derived from statutory law, for example, the right of access to food, shelter, health care or employment, lack comparable status. While some have tried to explain the rationale for giving higher status to “negative rights” compared to “positive rights,” those efforts are ultimately difficult if not impossible to defend with arguments about whether the right in question is “fundamental.” It makes more sense, however, to understand the distinction in terms of constitutional structure, focusing in particular on the role of the courts. Judges can enforce negative rights by restraining the government. They are not well equipped, however, to develop standards for enforcing positive rights to personal well-being; that role is better played by the legislature, free from close judicial scrutiny and subject only to minimal standards of fundamental fairness.
A second reason why protection of positive rights has limited status in the United States is linked to traditional divisions of responsibility reflected by the doctrine of federalism. American colonies operated with assumptions that providing health care and welfare relief were obligations of local communities. As time passed, states, rather than the federal government, were assumed to have responsibility for providing citizens with an education. Sovereignty of the national government was limited by the text of the Constitution to topics involving commerce, national defense, and related responsibilities. This federal division of responsibility limited the extent to which “positive” welfare rights were perceived as protected by the national constitution.
4 See Will v. Michigan Department of State Police, 491 U.S. 58 (1989).
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In the twenty-first century, however, much has changed. The link between commerce and civil rights is now well understood; in protecting interstate commerce, Congress has authority to prevent discrimination based upon age or disability, and to assure that fair employment laws are enforced throughout the nation. Congress also plays a predominant role in providing welfare assistance, housing and employment, and may soon take over even more of that responsibility in the health care context. The United States Supreme Court, however, has ruled that, absent constraints based upon federal spending, Congress cannot enforce these laws by arming individuals with claims for monetary damages against states that fail to comply.5 The Justices base their rulings on a doctrine of sovereign immunity which, although not specifically referred to within the text of the United States Constitution, is nevertheless implied by “the presupposition of our constitutional structure.”6
A minority of the Justices and many scholars have explained at length that the Supreme Court majority misconstrued the meaning of the Eleventh Amendment and related historical conceptions of sovereignty. The design of the Constitution, specifically reflected in the Supremacy Clause, makes the central government sovereign with respect to powers conferred upon the national government. The text of the Eleventh Amendment appears consistent with that traditional understanding of sovereignty; it applies only to suits against states brought by persons from other states, understood in short hand as cases of diversity jurisdiction. The text of that Amendment has no application to cases brought to enforce federal rights by citizens of a state against their own state government, and it would be inconsistent with traditional conceptions of sovereignty to extend immunity to states in such cases because doing so undermines the sovereignty of the national government. Nevertheless, that’s the conclusion reached by the Supreme Court.
A primary problem resulting from this interpretation is that basic rights founded on federal legislation are often not enforceable against the states. This is especially significant in the context of employment rights authorized by the Commerce Clause of the Constitution, but unenforceable by private individuals who are employed by state governments. Furthermore, because this restriction is derived from a Supreme Court interpretation of the Constitution, Congress and the people they represent are powerless to change the rule short of an amendment to the Constitution. The Supreme Court majority valued federalism over individual statutory rights when they reached this decision.7 In doing so, they undermined national sovereignty and principles of democracy.
5See, e.g., Board. of Trustees. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (barring private enforcement of the Americans with Disabilities Act); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (denying rights to recover monetary damages for violations of the Age Discrimination in Employment Act).
6 Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991) (finding 11th Amendment constraints on suits by Indian tribes against states).
7 In other contexts, I have argued that the Privileges or Immunities Clause of the Fourteenth Amendment encompasses statutory rights, and should be enforceable against the state (overriding Eleventh Amendment
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Issues of sovereignty, federalism and individual rights are also of interest in analogous contexts involving executive authority to enforce rights derived from international treaties. In 2006, the United States Supreme Court ruled that, in the absence of specific congressional action, the President lacks power to enforce an international treaty obligation to inform foreign consulates when citizens of another nation are subjected to criminal prosecution.8 Again, a majority of the Supreme Court Justices in this country have viewed their role in terms of restricting, rather than safeguarding, the rights of individuals.
My underlying question: When courts exercise constitutional authority, are they most likely to help or hinder those who bring claims against the government? What are the implications for constitutional democracies?
restrictions), on that basis. See, e.g., William J. Rich, “Taking ‘Privileges or Immunities’ Seriously: A Call to Expand the Constitutional Canon,” 87 Minn. L. R. 153 (2002).
8 Medellin v. Texas, 128 S. Ct. 1346 (2008).
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The Constitutional Role of Transnational Courts: Principled Legal Ideas in Three-Dimensional Political Space
Kim Lane Scheppele1 Princeton Univeristy United States
My remit on this panel is to discuss the constitutional role of transnational courts. This is a big topic that can be best approached by working through some concrete examples to a more general point. Given that our session will be held on September 11, it is particularly timely to use the relationship between transnational and domestic courts in the global anti-terrorism campaign for illustration.
Here is the general argument: both national and transnational courts negotiate their relationships to each other in a larger “three-dimensional political space” that consists of more political actors than just courts. The idea of a three-dimensional space is a metaphor, of course, but it roughly tracks the common thought that the relationship between national and transnational bodies (or between national and sub-national bodies) is vertical while the relationships among courts and institutions within each level (transnational, national or sub- national) are horizontal. Considering horizontal and vertical relations together gives us a three-dimensional political space because each dimension comes with its own depth of complicated relationships, a depth provided by a history of interactions among political and legal institutions within each level.
Imagine playing chess on a three-dimensional chessboard where a piece from one level can knock out a piece from another or where a particularly important player can escape to another level for safety. Sometimes, moves on one level of the chessboard can be duplicated at other levels only after time passes. Sometimes moves on one level speed the moves on another. Transnational and national courts are both players in the game of transnational constitutionalism, but they do not exist simply in a hierarchical relationship to each other. They are somewhat differently positioned in this three-dimensional space with different sorts of opportunities for maneuver. National and transnational courts can and often do reinforce each other’s ideas. Both national and transnational courts can increase the commitment to constitutionalism present in the three-dimensional space by using principled legal ideas to counter political action that is inconsistent with these principles.
In this three-dimensional space, the pressures for both lawmaking and for normative control over this lawmaking come from many angles. Sometimes domestic laws are passed to comply
1 George W. Crawford Visiting Professor of Law, Yale Law School, 2009-2010; Laurance S. Rockefeller Professor of Sociology and Public Affairs, Director, Program in Law and Public Affairs, Princeton University. Paper prepared for the panel on "Constitutional Adjudication and Democracy" at the meeting of the International Law Schools Association, Washington DC, 11 September 2009. This paper is a condensation of some arguments I make in my book-in-progress called THE INTERNATIONAL STATE OF EMERGENCY: SOVEREIGNTY, LEGALITY AND TRANSNATIONALITY AFTER 9/11.
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with international or regional mandates, so the pressures for having these laws in the first place comes from the international to national level. Sometimes transnational law grows from the parallel actions of many national parliaments, causing the pressure to go the other way, from the national to the transnational level. These pressures (from national up and from transnational down) produce laws at all levels that are intertwined. The overlapping jurisdiction of courts across these levels is particularly intricate because national laws and practices under those laws can sometimes be adjudicated in transnational courts and national courts often have to interpret transnational law. Sometimes law is interpreted in both sorts of courts at once, usually harmoniously but sometimes not. In general, though, transnational and national courts share a common commitment to methods and values that distinguish them in the political space from other political institutions.
All of this is very abstract. Let us make it more concrete by looking at the relationship between transnational and domestic courts in the global anti-terrorism campaign.
Before getting to the “courts” part, let’s first pause on the phrase the “global anti-terrorism campaign.” I use this rather novel phrase to make several points about contemporary terrorism law:
1) The fight against terrorism is truly a global phenomenon. Since 9/11 almost every country in the world has passed new legislation or tweaked old legislation with the aim of fighting terrorism.2 Many countries would have created such laws out of a national sense of threat in any event. But it is clear that a number of countries developed their legislation primarily in response to international mandates, coming from the UN Security Council and regional bodies like the European Union, the Organization of American States, the African Union, the Association of South East Asian Nations and others.3 While these transnational bodies have pressed states to combat terrorism by being very aggressive in fighting terrorism, human rights bodies within many of these same transnational organizations (the UN, the EU and the OAS in particular) have attempted to prevent states from abusing human rights as they carry out this fight. Since 9/11, transnational bodies have played an immense role in coordinating international terrorism strategies. The anti-terrorism fight is global and globally coordinated.
2) While most commentators talk about “counter-terrorism,” I prefer “anti-terrorism” because “anti-terrorism” does not presuppose that terrorism has already happened and needs therefore to be countered. The term is meant to highlight that the efforts are
2 Evidence for this proposition can be found in the country reports submitted to the UN Security Council’s Counter- Terrorism Committee (CTC) which has been charged with ensuring the enforcement of the wave of resolutions, starting with UN Sec. Council Res. 1373 (28 September 2001). For the CTC, see http://www.un.org/sc/ctc/ and the country reports, see http://www.un.org/sc/ctc/countryreports/Creports.shtml .
3 For an early review of the transnational efforts, see Kim Lane Scheppele, Other People’s PATRIOT Acts, 50 Loy. L. Rev. 89, 91-97 (2004).
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focused against a thing called terrorism, even though it may not have appeared yet in the particular space where the laws are generated to fight it. For example, Vanuatu,4 which passed a giant new terrorism package in the face of no particular threat, may find that the primary effect of these laws is to gain approval from the international community.
3) Instead of calling the global effort a “war” against terrorism or even a multinational effort against organized crime, the term “campaign” better captures the spirit of the post 9/11 legal space. Post-9/11 anti-terrorism efforts started with a “you’re with us or against us” framework5 – much like a political or a cause-related campaign. States around the world have signed on, even states that have experienced very little threat of terrorism from either domestic or transnational sources, just to demonstrate that they are on the right side of the fight. As with many campaigns, it is at least as important to appear to be doing something as to actually be doing whatever it takes. And it is important to cheer on the efforts of others as they join the campaign too.
After eight years of the anti-terrorism campaign, the world is now full of transnational binding resolutions, legal frameworks and plans of action that are being pushed down to the national level. National governments have by and large been quite speedy about bringing these ideas into national law. But the influence goes the other way too. National governments – particularly the US after 9/11, European governments after the attack on the London tube and the Madrid train bombings, and Russia after the Moscow theater siege and Beslan school hostage-taking in North Ossetia – have pressed transnational bodies to require of all governments the same actions they are taking themselves. It is no coincidence that UN Security Council Resolution 1373, passed on 28 September 2001, mirrors almost exactly the strategy for fighting terrorism that one sees in the USA PATRIOT Act,6 which the US was drafting at the same time as it was urging the Security Council to act.
Where are courts in all of this? The burst of lawmaking about terrorism has generated a corresponding burst of constitutional challenges to these laws around the world. High courts in the US, Canada, Spain, Germany, the UK, Indonesia, India, Pakistan, Peru, Colombia, Poland,
4 See the country reports of Vanuatu to the Counter-Terrorism Committee of the UN Security Council at http://www.un.org/sc/ctc/countryreports/Creports.shtml . As Vanuatu reported in 2007, “Since the [comprehensive anti-terrorism law] commenced effect in February 2006 no cases have been identified by authorities in Vanuatu requiring investigation or prosecution for offences contained in the Act. However, authorities continue to place a high priority on the investigation and prosecution of any suspected offences and on improving their operational readiness to enforce the legislation” (Vanuatu country report, document number S/2007/139 at page 4, permalink http://daccessdds.un.org/doc/UNDOC/GEN/N07/267/84/PDF/N0726784.pdf?OpenElement .)
5 CNN, ‘You are with us or against us,” (quoting George Bush), 6 November 2001. Available at http://archives.cnn.com/2001/US/11/06/gen.attack.on.terror/ .
6 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 PUB. L. NO. 107-56, 115 Stat. 272 (2001).
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Cyprus, the Czech Republic and others have had to rule on the constitutionality of anti- terrorism laws since 9/11, and most of these courts have found the anti-terrorism laws to be unconstitutional at least in part. For example:
The European Arrest Warrant (EAW), created by the European Union Framework Decision of June 2002, ensures that a suspect located anywhere in the EU will be extradited to the EU country that seeks to put that suspect on trial.7 While the EAW is of general application, its passage was hastened by 9/11 and the need to find a way to try suspected terrorists across Europe. Governments across Europe quickly enacted the EAW into domestic law, and those domestic laws were quickly challenged before constitutional courts. The constitutional courts of Germany, Poland, and Cyprus found that the EAW violated their national constitutions. These national courts found either that their countries’ constitutions expressly forbid such extradition (and would require an amendment to permit the EAW) or that national constitutional principles would not countenance a citizen of that country being sent for trial elsewhere without guarantees of fair process equivalent to those in the home country.8
The Federal Constitutional Court of Germany struck down several post-9/11 laws as unconstitutional, some (like the European Arrest Warrant Case) with implications for European coordination of terrorism investigations. In the Dragnet case, the Federal Constitutional Court held that the use of data mining techniques to locate terrorism suspects violated the personality rights of those whose information was accessed, unless the police had a concrete suspicion about that particular individual before the data search was initiated.9 The Court also issued a preliminary injunction against the application of the law based on the post-9/11 European regulations on data storage and information sharing,
7 For more on the European Arrest Warrant in general, see http://ec.europa.eu/justice_home/fsj/criminal/extradition/fsj_criminal_extradition_en.htm . The Framework Decision passed in June 2002 to bring the EAW into effect is at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:190:0001:0018:EN:PDF .
8 Germany: European Arrest Warrant Case – Bundesverfassungsgericht (German Federal Constitutional Court), ruling 18 July 2005 (2236/04), available at: http://www.bundesverfassungsgericht.de/entscheidungen/rs20050718_2bvr223604en.html ; Poland: European Arrest Warrant Case -- Trybunal Konstytucyjny (Polish Constitutional Court), ruling 27 April 2005 (P 1/05), available in English summary at: http://www.trybunal.gov.pl/eng/summaries/summaries_assets/documents /P_1_05_GB.pdf ; Cyprus: European Arrest Warrant Case -- Cyprus Supreme Court, ruling 7 November 2005 (294/2005), available only in the Greek language at: www.cylaw.org . The Constitutional Court of the Czech Republic, however, upheld the domestic constitutionality of the European Arrest Warrant even though the constitution explicitly forbids the extradition of citizens to other countries to stand trial Czech Republic: Czech Constitutional Court (Ústavní Soud) ruling 3 May 2006 (Pl. ÚS 66/04), available in English at: http://angl.concourt.cz/angl_verze/doc/pl-66-04.php .
9 Germany: Rasterfahndung {Dragnet] Case -- BVerfGE 115, 320, 1 BvR 518/02, 4 April 2006, decision available in German at http://www.bundesverfassungsgericht.de/en/decisions/rs20060404_1bvr051802.html .
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holding that use of the stored data for anything other than investigation of a serious criminal offense was not consistent with the German Basic Law.10 In both cases, these decisions put a halt to German participation in the creation and use of transnational databases in fighting terrorism across Europe.
In 2003, the Constitutional Court of Peru declared unconstitutional the 1992 presidential decrees that had provided the framework for fighting domestic terrorism since that time.11 Arrests, trials and convictions under these laws had been already been found by both the Inter-American Commission on Human Rights as well as the Inter-American Court on Human Rights to violate the American Convention on Human Rights.12 The decision by the Constitutional Court therefore brought the decisions of the transnational courts directly into domestic law. But after the terrorism laws were struck down, the Counter-Terrorism Committee of the UN Security Council pointedly asked Peru:
The CTC understands that the Peruvian Supreme Court [sic] declared four anti-terrorism laws enacted in the early 1990s as unconstitutional. Which laws have been declared unconstitutional and why? How will this affect the implementation of [UN Security Council Resolution 1373]? What plans are there for introducing new laws or revisions to the existing legislation? When is this likely to happen? How effective is the current legislation as it stands?13
Clearly the Counter-Terrorism Committee was not amused by the Constitutional Court’s judgment and has been pressing Peru to enact new anti-terrorism laws that will cover the same ground.
Throughout the Commonwealth after 9/11, country after country has adopted Canada’s strategy of using “security certificates” (sometimes under the British terminology of “control orders”) to detain terrorism suspects.14 Security certificates are generally issued
10 Germany: In the Matter of Data Retention -- Order of 11 March 2008 – 1 BvR 256/08, English summary available at http://www.bundesverfassungsgericht.de/en/press/bvg08-037en.html .
11 Peru: Marcelino Tineo Silva y más de 5,000 ciudadanos, TC [No. 8231] D.O. 236530, 3 January 2003.
12 For a discussion of the large number of rulings against these laws from the Inter-American Commission and the Inter-American Court, see Ralph Ruebner et al., The War on Terrorism: Peru’s Past and Present, A Legal Analysis, John Marshall Law School Working Paper, available at http://www.jmls.edu/facultypubs/ruebner/perureport.pdf .
13 The CTC does not publish the questions it asks specific countries as it presses them to fight terrorism. One can only learn about these questions if the country includes them with its list of responses, as Peru did in this case. Letter Supplementing the Report of the Government of Peru on Compliance with Security Council Resolution 1373 (2001), submitted 5 May 2004. Document S/2004/589, Permalink: http://daccessdds.un.org/doc/UNDOC/GEN/N04/440/46/PDF/N0444046.pdf?OpenElement , also available through http://www.un.org/sc/ctc/countryreports/Creports.shtml .
14 States within the Commonwealth were encouraged to pass the draft model terrorism law, available at the Commonwealth’s website at http://www.thecommonwealth.org/shared_asp_files/uploadedfiles/%7B32AF830D-
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by a government minister in order to detain a terrorism suspect, potentially indefinitely, because the minister finds that the suspect in question is too dangerous to be left at large but not capable of being prosecuted because of the nature of the evidence involved. In the case of non-nationals, detention may be justified because the country to which a suspect would be deported might use torture against him. Unfit for either prosecution or deportation and held in a sort of legal limbo, detainees in Canada, the UK, and Australia have brought legal challenges. The Canadian Supreme Court required the government to modify the procedures by which detainees were held;15 the British Law Lords also required changes in the control order regime before the European Court of Human Rights weighed in with even more changes to the system.16 The Rapporteur on Protecting Human Rights while Combating Terrorism within the Office of the UN High Commissioner on Human Rights recommended that Australia voluntarily comply with the legal standards set by the British courts and European Court of Human Rights even though the country is not formally bound by decision of those courts.17
It is not just national constitutional courts that have issued a number of decisions on the legality of anti-terrorism measures after 9/11. Transnational courts have covered that ground too:
In the Kadi and al Barakaat case,18 a Grand Chamber of the European Court of Justice ruled on the validity of a European Union regulation that brought into European law the legal capacity required by the UN Security Council to immediately freeze the assets of suspected terrorists. The European regulation, like many national regulations, provided for asset freezes as soon as a suspected terrorist was placed on the UN terrorism watch
F83A-4432-8051-750C789531A5%7D_final_terrorism_law.pdf . See pp. 17-18 for the wording on control orders, which tracks the British law and practice.
15 Canada: Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9, available at http://scc.lexum.umontreal.ca/en/2007/2007scc9/2007scc9.pdf .
16 For the British cases, see A v. Secretary of State for the Home Department (also known as The Belmarsh Case), [2004] UKHL 56, available at http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&others.pdf and Secretary of State for the Home Department (Respondent) v AF [2009] UKHL 28, available at http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090610/af.pdf . For the European Court of Human Rights case, see Case of A. and Others v. The United Kingdom, (Application no. 3455/05) Grand Chamber Judgment, European Court of Human Rights, 19 February 2009. Available through the HUDOC search engine at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en .
17 Martin Scheinin, Australia: Study on Human Rights Compliance While Countering Terrorism, Report of the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, UN Doc. A/HRC/4/26/Add.3, 14 December 2006, available at http://daccessdds.un.org/doc/UNDOC/GEN/G06/155/49/PDF/G0615549.pdf?OpenElement .
18 Judgment of the European Court of Justice (Grand Chamber) of 3 September 2008 - Yassin Abdullah Kadi, Al Barakaat International Foundation v Council of the European Union, Commission of the European Communities, United Kingdom of Great Britain and Northern Ireland (Joined Cases C-402/05 P and C-415/05 P), available at http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-402/05 .
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list, without any notification to the target before the freeze took place or any process after the freeze was in effect for the target to provide evidence that he should not be treated as a suspected terrorist. In a September 2008 judgment that has already generated much (mostly favorable) commentary,19 the ECJ prospectively voided the EU regulation because it failed to provide a fair process for the person affected to challenge the freeze.
In the Öcalan case,20 arising on pre-9/11 facts in a post-9/11 judgment, the European Court of Human Rights made it clear that 9/11 had not changed its views on the human rights standards to be applied in terrorism trials. In this case involving one of Turkey’s most notorious domestic terrorists, the ECtHR held that Öcalan’s rights to fair judicial process to challenge his detention had been compromised, that a special tribunal including members of the armed forces was not adequate to guarantee the European Convention’s requirement of an independent tribunal, and that his trial had therefore been so unfair that the resulting sentence of death violated the prohibition against inhuman and degrading punishment.
The Inter-American Commission on Human Rights has taken precautionary measures in favor of detainees at Guantánamo Bay, Cuba, holding first in a resolution on 12 March 2002 that the United States had an obligation to determine the legal status of the detainees in a competent tribunal. Later precautionary measures were issued that called upon the United States to investigate claims of torture. Taking note of the case of the US Supreme Court in Hamdan v. Rumsfeld (2006) as well as criticisms of Guantánamo by mandate holders of the Human Rights Commission and the official report of the Committee Against Torture, the Inter-American Commission passed resolution 2/06 in 2006, again calling upon the United States to provide the detainees with a competent tribunal and to investigate claims of torture.21
19 For example, Gráinne de Búrca, “The European Court of Justice and the International Legal Order after Kadi,” Fordham Law Legal Studies, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1321313; W.T. Eijsbouts and Leonard Besselink, “‘The Law of Laws’ – Overcoming Pluralism,” 4 European Constitutional Law Review 395 (2008); Stefan Griller, “International Law, Human Rights and the European Community’s Autonomous Legal Order: Notes on the European Court of Justice Decision in Kadi,” 4 European Constitutional Law Review 528 (2008; Daniel Halberstam and Eric Stein, “The United Nations, the European Union, and the King of Sweden: Economic Sanctions and Individual Rights in a Plural World Order,” 46 Common Market Law Review 13 (2009); Bjørn Kunoy and Anthony Dawes, Plate Tectonics in Luxembourg: The ménage à trois between EC Law, International Law and the European Convention on Human Rights following the UN Sanctions Cases, 26 Common Market Law Review 73 (2009.
20 Öcalan v. Turkey, (Application no. 46221/99), Judgment of the Grand Chamber of the European Court of Human Rights, 12 May 2005.
21 Resolution 2/06 of the Inter-American Commission on Human Rights (which repeats this history) can be found at http://www.cidh.org/resolutions/resolution2.06.htm .
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These cases from transnational judicial and quasi-judicial bodies could be multiplied, just as the cases from the national courts could be. There has been a great deal of judicial activity covering nearly all phases of the global anti-terrorism campaign.
But what is crucial to note in all of these cases is that each legal judgment operates in a space occupied both by other judicial bodies and by national as well as transnational law. In the European Arrest Warrant cases and the German post-9/11 data protection cases, European- wide efforts were stopped by national constitutional courts. In the Peruvian anti-terrorism law case, national law was voided by a national court, though only after a transnational court had first found the state practices under the law incompatible with the regional human rights treaty. In the Commonwealth security certificate cases, national court decisions that provided constitutional checks on executive discretion were urged upon other states for whom those decisions were not binding. International actors got into the act in urging courts to adopt decisions based on the rulings of other courts from outside their jurisdictions.
At the transnational level, the decisions of the European Court of Justice and the European Court of Human Rights provided models of legal argument for domestic actors within the states that are members of the European Union as well as the states that are members of the Council of Europe. The Inter-American Commission decisions on Guantánamo attempted to influence a national government with its own authority, but also with the authority of the decisions of that country’s highest court (the US Supreme Court) as well as report and recommendations of transnational bodies (the Committee against Torture and the Human Rights Commission). In each case, the transnational judicial bodies tried to supplement national courts to reinforce the same principles.
From these examples, we can see that the constitutional role of transnational courts is not so easy to describe. Transnational courts are not super appeals courts that hover above a national legal system ready to rule on the domestic law of those states. Nor are they bodies that primarily backstop national courts. Instead, transnational courts issue decisions that provide principled bases for the judgments of other political bodies, from transnational institutions to national governments to national high courts. National courts are also not purely national anymore, if indeed they ever were. Increasingly, national courts are being called upon to rule on matters that have implications far beyond a country’s borders. It is much harder than it used to be to find a legal issue that is either purely national or purely transnational.
Constitutionalism in this complex three-dimensional political space is the application of principled legal ideas to the business of governing. Both transnational and national courts have been active carving out a space for constitutional judgment. It is clear that there is more principled legal argument across this three-dimensional political space because courts have been active at all levels.
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Constitutional Adjudication and Democracy: Constitutional Rights of “Aliens”
Jessica E. Slavin Marquette University Law School United States
“It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law . . . . But an alien on the threshold of initial entry stands on different footing: ‘Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.’” Shaughnessy v. Mezei, 345 U.S. 206, 212 (1953) (quoting United States ex rel. Knauff v. Mezei, 338 U.S. 537, 544 (1950)
The first time I read the above words from the United States Supreme Court’s decision in the Shaughnessy case (quoting Knauff), they hit me like a blow. I had to stop to reread them. (It was not the first time that happened to me as I read a Supreme Court decision, and it is always a good sign that something interesting is being discussed.)
Even at the time of their writing, those words struck some members of the Court, and many other people, as patently incorrect. To say that any procedure whatsoever, if authorized by Congress, therefore constitutes “due process,” simply because it applies to some particular group of people, is nonsensical. Stated more plainly, the words express the view that aliens have no due process rights whatsoever with regard to the means by which the United States denies them entry. Critics have said that, even if this were true as a matter of fact (which was not in itself clear), it was unwise and wrong to permit a government to act with impunity, ever.
Today, that famous sentence seems even more obviously incorrect, but not only because of its support for governmental impunity: also because of the fact that the concept of the “alien” is breaking down, or at least changing in a way that makes the point of entry seem less important.
To begin with, in the half century that has passed since the writing of those words in Knauff (as has become cliché to note) incredible changes in technology have transformed, and are in the process of transforming, global communications and travel. At the same time, perhaps correlated with these changes, the “horizontal” system of international law, founded upon the concept of nation states contracting with one another and then implementing those agreements within their own states, rather independently, has shown signs of strain. Social forces pull in both directions, some pushing to bolster the strength and insularity of the nation- state, others pushing the opposite way, toward outward-looking, globally-focused government.
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Meanwhile, at the seams of this system, both at the places where the nation-state crumbles and at the places where nationalism takes hold, complex systems of conflict and instability have sprung up, with horrifying results that the international legal system seems incapable of resolving. We watch successive waves of the failure of state protections for large groups of human beings: starvation; exploitation and violence against the most vulnerable human beings, including so, so many children; persecution; genocide; wars; all seeming to go on for decades in unending cycles.
Finally, and thankfully, during this same period it has become a principle of international law that a state may not return a human being to persecution or torture. Treaty law recognizing the right to non-refoulement and related protections has developed and strengthened, so that now, though it is true that the right to non-refoulement is gutted right and left by limitations, exclusions, and arbitrary procedural systems, most nonetheless acknowledge in principle that non-refoulement is a norm jus cogens, for all human beings everywhere on the earth.
Against this backdrop, when I read that sentence from Knauff (especially when I read it in the context of Shaughnessy) it seems simply inaccurate to continue to call a refugee (whether at the border or already inside) an “alien.” As Stephen Gardbaum has written, “[t]he growth of the human rights system is a critical part of the case for those who argue that such fundamental changes have taken place in international law as to justify or require a shift in overall paradigm from a horizontal conception of sovereign equality to a more vertical, ‘constitutionalist’ conception.” Human Rights as International Constitutional Rights, 19 European J. of Int’l Law 749, 762 (2008). The refugee is one of the strongest arguments for this position, as she seeks to assert an individual right to safety in the face of the failure of state protection. Gardbaum further writes that “the contemporary human rights system is undoubtedly one of the strongest parts of this general constitutionalist claim,” id. at 762-63, and the refugee would seem to be the strongest candidate for citizenship in this new global constitutional order.
Why does this matter? Why reconceptualize non-refoulement as a global constitutional right at a time when its acceptance as jus cogens is nearly universal? For one thing, because doing so may provide a more solid ground for enforcing the right, or at least, for arguing for recognition of the need to make the right enforceable. Also, it could help form a legal basis for the improvement or replacement of the current system of humanitarian aid and refugee resettlement, by reframing the problems of detention and arbitrary decision-making as violations of fundamental due process rights belonging to all human beings on this earth.
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Some Reflections on The Dissolution of Political Parties in Thailand
Narongdech Srukhosit Assistant Professor of Public Law Chulalongkorn University, Bangkok Thailand
The dissolution of political parties is a measure available for governments in many countries to handle with political parties posing harms to their democracies or existence.1 In recent years, it has become much contentious not only before national courts but international and regional human rights bodies.2 A number of judgments of the European Court of Human Rights are concrete examples thereof. In Thailand where its democratic regime of government has been on a tortuous path due to ‘seasonal’ coups – almost every ten to fifteen years since its transformation into a democracy in 1932, the measure has recently been invoked frequently and drawn controversies to an unprecedented scale.
I. Grounds for Party Dissolution
According to the Thai Constitution 2007 and the Organic Act on Political Parties of 2007, the grounds for dissolving a political party are divided into 3 categories.3
(i) Discontinuation is the forced closure of a party that has been inactive on various grounds; for examples, not nominating a candidate for two consecutive general elections or eight years either periods of which is longer; having its members less than 5,000 people for a whole year; not calling for a general meeting nor holding any activity for a whole year without a reasonable cause. In sum, a party is to lose its legal status for non-compliance with formal requirements. The Election Commission, an independent body under the Constitution, has the power to issue a proclamation of discontinuation published in the Government Gazette, but any person concerned has the right to appeal to the Constitutional Court.
(ii) Voluntary Dissolution occurs in the cases provided by a party’s regulation or its amalgamation with another party.
1 See, John Finn, ‘Electoral Regimes and the Proscription of Anti-democratic Parties,’ pp. 51-77, in David C. Rapoport and Leonard Weinberg, The Democratic Experience and Political Violence, (London: Frank Cass Publishers, 2001).
2 See, Eva Brems, ‘Freedom of Political Association and the Question of Party Closures,’ pp. 120-195, in Wojciech Sadurski, Political Rights under Stress in 21st Century Europe, (Oxford: OUP, 2006).
3 Section 68 and 237 of the Thai Constitution 2007, and Section 91 to 98 of the Organic Act on Political Parties 2007.
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(iii) Involuntary Dissolution is to be exercised by an order of the Constitutional Court if a party has carried out an act: that is detrimental to the security of the State or its democracy with the King as the Head of State; that is a gain of the power in administration of the State by unconstitutional means; and, that is contrary to law or public order or good morals. Also it applies to a party: that allows foreigners to become its members; that knowingly receives illegal contributions; that interferes with campaigning for senators; or that frames another party or person for criminal offences under the Political Parties Law.
Most arguably, section 237 paragraph 2 of the Constitution clearly states the cause for dissolving a party as a result of a wrongdoing having done by any candidate of such party in an election if the following conditions are met. First, the commission of an illegal act contrary to the Election Law results in an election not proceeding in an honest and fair manner. Second, the leader or any executive of such party has connived at or allowed the commission thereof or, having known of the commission thereof, failed to prevent or take remedial action in order to render the election to proceed in an honest and fair manner. Accordingly, it shall be deemed that such party has committed an act with a view to acquiring the power to rule the country by any means which is not in accordance with the modes provided in this Constitution. In other words, the party is to be automatically considered anti-democratic. More controversially, the party’s leader and executives are to be deprived of their right to vote, right to be elected for public office, and right to form, and be an executive of, a party for five years; whereas the original wrongdoer shall be prosecuted for criminal charges and liable to the suspension of his voting right for a much longer period.
II. Analyses
To date there have been several academic oppositions to such stipulations, particularly, the last ground.
First, a single commission of an electoral fraud, a vote-buying, or any other wrongdoing rendering an unfair election in a constituency is not the equivalence of anti-democratic acts likes those committed by the Nazi or Fascist parties during WW II, the communist underground invasions during the cold war, or, in particular, coups d’etat frequently staged in the country. It is overstated and irrational. On the other hand, the Thai political culture and the conditions of elections in Thailand where vote-buying and electoral frauds are chronically rampant are always put forward as a defense. The proponents thereof insist that such a strong medicine is needed if wishing to get away from the current plight since it is a necessary evil for deterring electoral corruptions. On this account, extensive empirical researches have to be carried out to prove whether it can lead to such desirable outcome.
Second, the political wills of those jointly forming a party and becoming members thereof are easily wiped out on account of even a wrongdoing. Dissolving a party based on this
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ground is self-contradictory as section 65 of the Constitution guarantees the freedom of Thais to form a party and to carry out political activities. It sounds more acceptable if they are involved, directly or indirectly, with such illegal act, but if not so, they are being punished for what they did not do. On the other hand, the proponents claim that members of such party have to be responsible for neglecting or carelessly choosing the party’s executive or candidates in an election. Admittedly, it affects the freedom of other members of such party, but it is a necessary evil to force them to actively participate in the party’s internal administrations given the fact that more than 90 per cent of members of almost all Thai parties are so in name only.
Moreover, albeit a constitutional provision, Thailand is bound by the International Covenant on Civil and Political Rights. A review of the traveaux préparatoire of the ICCPR indicates that article 22 thereof guaranteeing the right to freedom of association grants individuals residing in State Parties the protection against unjustifiable dissolution of political parties.4 However, it is argued that no applicable cases may be applied directly to this particular case. Additionally, an individual complaint cannot be submitted to the UN Human Rights Committee (HRC) because the country did not accede to the First Optional Protocol to the ICCPR. Analogous to the European Court of Human Rights’ notion on the margin of appreciation, this kind of questions should fall within that margin. Had a complaint ever made to the HRC, it would have yield to the State’s sovereignty.
Third, Thai political parties have never evolved into a truly democratic institution linking between peoples and their representatives who share a mutual political ideology. Generally, a party is formed by elite politicians pursuing the same political goals, that is, to get elected and become a government. That is all! Thai parties are thus not “a mass party;” in fact, they are under the control of elites in such parties and businessmen supporting them financially. This poor characteristic can be ameliorated by intra-party democratic mechanism which requires a long period of time for materialization. But hardly has the mechanism been implemented, although required by law, since parties have functioned and evolved intermittently as a result of coups and the ease of dissolving parties. On July 13, 2009, 46 parties operate whereas approximately 90 parties have been dissolved since 1998, 4 of which were parties having MPs and were in then coalition governments. The present criteria for dissolving parties are therefore disadvantageous to the Thai democratic development as a whole.
Nevertheless, the above argument is rebutted by the fact that virtually all dissolved parties were closed on formalistic causes, e.g. failure to submit annual financial report, or not holding any political activity for a whole year, and so on. The supporters of this harsh measure always stick to the claim that it is a necessary evil to drive the country out of this vicious circle, that is, buying votes in an election, becoming a government, recovering costs of election from kickbacks taken while in office, and finally a coup is staged on the ground that it is an necessary evil to get rid of corruptions.
4 Eva Brems, above, at 121-122.
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Cross-judging: Tribunalization in a Fragmented but Interconnected Global Order
Ruti Teitel and Robert Howse1 New York Law School United States
Introduction
Among the most remarked trends in international relations is the increase in the number of international courts and tribunals, and the greater use of such bodies to interpret and enforce international law, and resolve disputes between states and other actors in the international system.2 In general, one expects such a trend to be pleasing to supporters of international law, who have long had to deal with suspicions that international law is not really law, or at least not an effective legal system, because it lacks the routine adjudicative mechanisms characteristic of domestic systems. While this skeptical viewpoint may exaggerate or distort the extent to which adjudication relative to other institutions-political, social and economic-is responsible for the effective realization of domestic legal norms, or more generally their impact on behavior broadly understood, it has nevertheless dogged those who would make the case for international law as an important and influential form of legal ordering.
The mere increase in the numbers of tribunals and the frequency of their use would not itself make international law seem more like a domestic legal system, but for qualitative changes as well. Arbitration long existed as a method of third party dispute settlement in international law and there were periods and particular regimes where resort to arbitration was frequent, and indeed more the norm rather than the exception. But arbitration as it classically is understood in itself yields neither enforcement nor interpretation with normative weight, beyond settling the dispute at hand. The shift from “dispute settlement” by arbitration as an idiom of diplomacy, a mere instrument of cooperation or coexistence among sovereigns, to a system of adjudication supposes that international “dispute settlement bodies” have increasingly the character of courts and less so that of ad hoc arbitration panels. In other words, the judges understand themselves less as playing the role of compromise-building and conflict-avoidance or de-escalation in international politics, and more and more as rendering justice between the parties and building a genuine jurisprudence. However, as we shall elaborate in this article, these qualitative changes have been uneven across different areas of international law, and have not been linear or unqualified even within specific
1 Respectively, Ernst C. Stiefel Professor of Comparative Law, New York Law School, email [email protected]. and Lloyd C. Nelson Professor of International Law and Faculty Director, Institute for International Law and Justice, New York University Law School, email [email protected]; Copyright. This article was excerpted from a longer paper of the same title, forthcoming in the NYU Journal of International Law and Politics. 2See Benedict Kingsbury, Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem?, 31 N.Y.U. J. INT’L L. & POL. 679, 679 (1999) (introducing a collection of scholarship on the implications of the proliferation of international courts and tribunals).
425 IALS Conference on Constitutional Law regimes3. In this sense, tribunalization cannot be adequately studied through aggregate quantitative assessment: in depth consideration of how it has occurred within specific regimes is needed, in order to capture the qualitative dimension.
This article is intended to move the study of tribunalization beyond aggregate analysis— surveying at the surface the entire international legal landscape—while also overcoming the limits of studies of tribunalization within a single specialized or functional regime to yield any generalizable conclusions about changes in international order more broadly. The approach adopted is a collaboration between two scholars, specialists in different areas of international law, examining the trajectory of tribunalization in selected regimes, those of war and of commerce, areas that have always been pivotal in the transformation of international law. We explore a number of possible interpretations. One hypothesis is that tribunalization in these regimes reflects a common trajectory or tendency in international order. Alternately, it could be the case that tribunalization operates in a parallel manner but largely unconnected as between the regimes. Finally, it is possible that tribunalization in these regimes in acting in such a way as to introduce new dissonances between them, pointing in different and perhaps conflicting normative and institutional directions.
A common narrative of tribunalization is that it signifies a shift from a power- to a rules- based international system. Tribunalization means depoliticization.4 This goes hand in hand with the perception or assumption of qualitative change just described. Yuval Shany has written of a “greater commitment to the rule of law in international relations, at the expense of power-oriented diplomacy.”5 As we shall illustrate, a concrete examination of how tribunalization has occurred in the different regimes, and particularly its relationship to shifts in the normative substance of the law, are such that the depoliticization hypothesis is much too simplistic. In fact, the dynamic relationship between tribunalization and shifts in normative substance has led some tribunals to become deeply entangled with politics rather than operate in isolation from or above it. This has led to a new politics of international order, where tribunals become the most evident sites of the new global politics of contestation between diverse actors, NGOs, individuals, corporations, communities and not just states. Just as the optimistic hypothesis of tribunalization as a shift from power-based to law-based international order is too simplistic and highly misleading, so is the angst that the proliferation of international tribunals in an uncoordinated and decentralized international legal order will undermine the integrity, coherence, and legitimacy of the international legal order. Here we seek to illustrate how studying specific regimes and how tribunalization operates within them will yield more nuanced conclusions, given, above all, the possibility of sustained attention to the interpretative sensibilities and practices of these regimes.
3 For example, in the investment law area ad hoc arbitrations remain the norm, and tribunals frequently take different stands on fundamental questions of legal interpretation. 4 See, e.g., Ibrahim F. I. Shihata, Towards a Greater Depoliticization of Investment Disputes: The Roles of ICSID and MIGA, 1 ICSID REV.: FOREIGN INV. L.J. 1 (1986). 5 YUVAL SHANY, THE COMPETING JURISDICTIONS OF INTERNATIONAL COURTS AND TRIBUNALS 3-4 (2003).
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I. Tribunalization and the Anxiety over “Fragmentation”
An obvious and dramatic flashpoint for the “fragmentation” anxiety concerning tribunalization was the pronouncement of the International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber in the Tadic case, where the Court rejected the International Court of Justice’s (ICJ’s) interpretation of certain of the rules of state responsibility:
International law, because it lacks a centralized structure, does not provide for an integrated judicial system operating an orderly division of labour among a number of tribunals, where certain aspects or components of jurisdiction as a power could be centralized or vested in one of them but not the others. In international law, every tribunal is a self-contained system (unless otherwise provided).6
Of course tribunalization did not create what the anxious have labeled “fragmentation.” The decentralized and specialized work of diverse functionally oriented international legal regimes, run by very different technical and bureaucratic elites with their own cultures, need not be understood in terms of a specific shortfall of international legal order. Such a phenonomenon could rather be seen as parallel to the increasing specialization and differentiation of governance functions within post-industrial capitalist democracies, for instance, a tendency frequently observed in social theory. Against this purely functionalist account of fragmentation, we urge the view that, in the case of adjudication legitimacy depends not simply on instrumentalist considerations (“efficient” settlement of disputes but in fidelity to the commitment to legality itself. The question is whether such a commitment can be defined in simply “proceduralist” terms-judicial independence, impartiality of decisionmaking, giving of reasons-or whether even these values/desiderata only gain concrete meaning in terms of some ultimate substantive conception of legitimate legality in international affairs, a concept of justice7 or at least “fairness.”8 What we have in mind is the possibility of a Grundnorm of the international legal system that cross-cuts the differentiated functions of specialized regimes, each committed to their own form of instrumental reasoning.
In domestic legal systems, these cross-cutting values might be thought of as positivized or entrenched in the rules of the constitution-written and or-unwritten; these would be confided to the high or highest court for guardianship, assuring a coherent legal order. In international law, by analogy, one might have imagined that the equivalent would be structural norms concerning responsibility, personality, sovereignty, territory, jurisdiction. These norms are reflected in customary law, the “codification” work of the ILC and the UN Charter; and here one could imagine- and we emphasize the choice of the word “imagine”-the ICJ as the guardian of this “constitution,” analogous to the domestic high or constitutional court.
6 Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on Defense Motion for Interlocutory Appeal on Jurisdiction, ¶ 11 (Oct. 2, 1995). 7 See, e.g., ALEXANDRE KOJÈVE, OUTLINE OF A PHENOMENOLOGY OF RIGHT (Bryan-Paul Frost & Robert Howse trans., Rowan & Littlefield Publishers 2000) (discussing the origins and evolution of the concept of justice). 8 See generally THOMAS FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS (1995) (exploring the relationship between fairness and legitimacy).
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It was precisely in shattering this last element of the analogy that the Tadic Appeals Chamber ruling represents such a flashpoint for the anxiety of fragmentation. Even structural rules such as those concerning state responsibility take on their authoritative meaning within each self- contained regime. The meaning assigned to them by what many might have imagined or fantasized as international law’s high court, the ICJ, has no special much-less predominant normative force. Another reading of Tadic here is possible, one that relates to a theme that informs the first part of our analysis in this paper: There is a shift in the Grundnorm, or ultimate value of international legality, from sovereign state equality, where states are not subject to any higher authority, whether natural or divine law), to humanity and its protection.9 The ICJ, by avoiding humanity in its understanding of the structural rules and privileging the older Grundnorm (for a late example see the Arrest Warrants case), had conceded the Marbury v. Madison moment of the new “humanity law” order to tribunals such as the ICTY. One sees, albeit, dim or belated recognition of the new Grundnorm by the ICJ in decisions such as LaGrand, Bosnia v. Serbia, and the Security Fence advisory opinion, which are shaped more or less adequately, by “Humanity Law.”10
II. Tribunalization and Fragmentation: Optimistic and Pessimistic Prognoses
The problem of fragmentation as exemplified or intensified by the proliferation of uncoordinated and apparently unintegrated tribunals, has given rise to what one might loosely describe as optimistic and pessimistic hypotheses concerning the possibilities for making international legal order more coherent. Let us first consider the optimistic hypotheses. One such position suggests that fragmentation can be overcome through substantive normative integration of now fragmented international regimes. This view has the advantage of illustrating why, conceptually, it is not correct to assume that the mere increase in numbers of tribunals leads to normative incoherence in international law; if these tribunals are faced with substantive law that is harmonious and complementary across different specialized international regimes, and they practice comity effectively, then fragmentation need not be the result.
Thus, according to Ernst-Ulrich Petersmann, the recognition of a certain view of “human rights” as the core value of international legal normativity—e.g. an extreme neoliberal view- allows the integration of the previously fragmented international economic and perhaps social (labor, refugee, etc.) regimes with the (official) “human rights” and security (UN Charter) regimes. This does not require an institutional integration of judgment in a single higher court but rather the recognition of a common normative substance or core to these apparently disparate specialized regimes paves the way for comity and coordination among courts.11 Nevertheless, the problem
9 This shift and its implications are developed in extenso by one of us in Ruti Teitel, Humanity’s Law, (unpublished manuscript, on file with the Journal of International Law and Politics). The first part of this paper is derived from the argument in that manuscript. 10 LaGrand (F.R.G. v. U.S.), 2001 I.C.J. 466 (June 27); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), 2007 I.C.J. 108 (Feb. 26); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9). 11 Ernst-Ulrich Petersmann, Human Rights, International Economic Law and Constitutional Justice, 19 EUR. J. INT’L L. 769 (2008).
428 IALS Conference on Constitutional Law with this hypothesis is its radical contestability (and indeed, as one of us has argued elsewhere, the implausibility of this account in normative terms.)12
A more modest hypothesis concerning the overcoming of judicial fragmentation in international order reposes on the notion that international law offers enough of a common idiom or vocabulary on what might be called procedural or generic questions (such as remedies) to allow positive conversation, interaction, and mutual influence as between different tribunals. This is the argument that is made in extenso by Chester Brown in A Common Law of International Integration.13 One can have rapprochement without agreement on a Grundnorm or general concept of justice underlying international legality as such. But one can be more impressed by the instances where divergences on procedures and remedies reflect underlying differences about the Grundnorm or simply the predominance of the functional cultures of the different regimes as self- contained specialized orders, of which there are many, than by the various examples of convergence or commonality offered by Brown. Yet Brown does establish, usefully, one important limit to the fragmentation angst, at least in its most fraught versions: Diverse courts and tribunals are capable of talking to each other. This does indicate that the Tadic court’s statement about “self- contained systems” requires careful interpretation. As we will suggest, this statement may best be seen as a reaction to the suggestion that a tribunal must be bound by the rulings of another tribunal—obligated to follow those rulings as authority rather than to the extent persuasive, or responsive to the underlying Grundnorm of legality, or to the extent of the fit with the legal problem that the tribunal is required to solve and the normative structure and interpretative sensibility of the regime that gives rise to that problem. It may not constitute a rejection of cross-judging as cross-interpretation. Indeed, here one might analogize to a related debate currently being waged over the parameters of the uses of comparative law in adjudication today. 14
A third hypothesis, consistent with Brown’s and perhaps deepening it at least at the explanatory level, is that international lawyers and judges constitute an epistemic community,15 or perhaps they share an epistemic community with domestic and regional jurists. Such an epistemic community or network is capable of overcoming or mitigating many axes or dimensions of fragmentation. This may not produce formal or facial comity or consistency and reconciliation across tribunals of specialized regimes, yet at the same time the outcomes at some deep level will not be seen as conflicting and fragmenting, when properly interpreted, reflecting as they do what is common and distinctive in the legalist’s way of seeing international problems.
The pessimistic hypothesis is that the expansion of the rule of law through tribunals will simply continue to intensify incoherence and tension in the international legal system, undermining
12 Robert Howse, Human Rights, International Economic Law and Constitutional Justice: A Reply, 19 EUR. J. INT’L L. 945 (2008). 13 CHESTER BROWN, A COMMON LAW OF INTERNATIONAL INTEGRATION (2007). 14 See Ruti Teitel, Comparative Constitutional Law in a Global Age, 117 HARV. L. REV. 2570, 2590-92 (2004) (reviewing COMPARATIVE CONSTITUTIONALISM: CASES AND MATERIALS (Norman Dorsen et. al. eds., 2003)). 15 For an attempt to treat international jurist as a kind of community, see DANIEL TERRIS ET. AL., THE INTERNATIONAL JUDGE: AN INTRODUCTION TO THE MEN AND WOMEN WHO DECIDE THE WORLD'S CASES (2007) (study of the international judiciary emphasizing in part the relationship between judges on various international courts). See also ANNE-MARIE SLAUGHTER, A NEW GLOBAL ORDER 65-100 (2004) (discussing the significance of networks in the international legal system).
429 IALS Conference on Constitutional Law the “majesty of the law” and playing into the hands of those who are international law critics or skeptics—who may see the only clear and concrete order at the global level as the actual relationships between “states,” determined by the hard or harder, laws of power and interest. These critics can say: The more so-called international law there is, the more lawyers and justices there are, even less clear and certain does this purported law become.16
Our own take on this issue reflects our view that what is considered fragmentation is not a pathology. First of all, we question whether the actuality of international law as “law” should be determined by comparison against a benchmark drawn from a stereotype of a “domestic legal system”—one based on a historically contingent project, that of building the modern state with its monopoly on legitimate coercion, a project which itself is challenged by what we see as the ascendant normativity of international law, among other tendencies.17 We would describe our perspective as hermeneutics—a praxis driven, construction and evolution of legal order, whether domestic or international. Interpretation responds to and normalizes the proliferation and fragmentation of legal orders; since there is no original contextless “intended” meaning to the law. One might say we are already and always in the mode of interpretation. Judicial interpretation is well suited to making sense of diverse normative sources under conditions of political conflict and moral disagreement. Contrary to what might be inferred by the Tadic court’s suggestion of “self- contained systems,” courts, whether domestic or international, are inherently in dialogue with other courts institutions, and actors that also play interpretive roles. Decisions in individual cases can give meaning to law without purporting necessarily to give “closure” to normative controversy in politics and morals. Cross-interpretation does not lead necessarily to harmonization. Even though we consider that the tendency is towards humanity and its protection as the Grundnorm or concept of justice underpinning international legality as such, this norm does not have a fixed meaning that guarantees stability or unity in interpretation across contexts. Rather, the humanity norm is realized through the interpretation of diverse positive legal rules in multivariate contexts, and is inevitably entangled in politics. This understanding is developed in recent work reflecting changes implied by an increasing amalgamation of the law of war, human rights and humanitarian law,18 and on the relationship of these changes to developments in international economic law (investment and trade).19
In each of the areas we examine below, tribunalization has sometimes been accompanied by an expectation of reinforcement of international law as a self-contained system, protected from an “outside”—whether politics, other laws or cultures, or technocratic power that challenge the purity of the particular legal order. But, as we shall illustrate, tribunals have found themselves always
16 See generally JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW (2005) . 17 See Robert Howse and Ruti Teitel, Beyond Compliance: Rethinking Why Law Really Matters (Mar. 6, 2008) (draft presented at Institute for International Law and Justice Colloquium March), available at http://iilj.org/courses/documents/2008Colloquium.Session7.Howse.pdf. 18 See e.g., Ruti Teitel, Humanity’s Law: Rule of Law for the New Global Politics, 35 CORNELL INT’L L.J. 355, (2002) (discussing the paradigm shift in international law and its implications for foreign affairs). 19 See e.g., ROBERT HOWSE & RUTI TEITEL, BEYOND THE DIVIDE: THE COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND THE WORLD TRADE ORGANIZATION (2007) (examining the legal interaction between the right contained in the Covenant and WTO agreements).
430 IALS Conference on Constitutional Law reaching to and entangled with the “outside.” At the same time, they have resisted collapse into or subordination to the outside, instead maintaining a dynamic engagement through interpretation. Looking at how tribunalization has unfolded in relation to the evolution of the regimes themselves, within a context of rapidly shifting political, social, and economic realities, we see in each case, little evidence of “self-containment.” What we do however notice is a sense of non-subordination or assimilation other normative orders or institutional actors that matches the non-hierarchical reality of fragmentation. Interpretation implies normative communication—neither unconstrained conflict nor clinical isolation. This does not require stable agreement or harmonization on the one hand nor delegitimating incoherence—nihilistic or radical indeterminacy—on the other.
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Constitutional Adjudication and Democracy
John Williams The University of Adelaide Australia
The federal Judiciary Bill has not yet been introduced into the Federal Parliament so that I have nothing to report to you about the Federal Bench. There are abundant indications of work for the High Court as soon as the Judges are appointed.
The People of Australia were greatly shocked to hear of the assassination of President McKinley and they hope that the American people will take effective steps to put down the propaganda of anarchism.
Letter from Andrew Inglis Clark to Oliver Wendell Holmes, 26 Oct 1901.
Judicial Power and its Limits
The jurisdiction and role of the final court of appeal in any nation is multifaceted. It reflects the legal values of the nation and is often the venue for great historical moments as decision that shape the direction of law and politics are concluded. The judge is both the adjudicator of legal controversies and a drafter of a historical narrative. When the Australian constitutional framer and High Court aspirant, Andrew Inglis Clark wrote to his mentor Oliver Wendell Holmes in 1901, the High Court was on the eve of its establishment. Inglis Clark was passionate about all things American and drew upon the United States Constitution to inform his drafting on many aspects of the Australian Constitution, and in particular the judicial clauses.1
Writing to the Australian Prime Minister upon receiving the news that he would not be appointed to the High Court Inglis Clark said:
Whoever is appointed, I hope that the first judges of the Court will do for Australia what Marshall and his colleagues did for the United States, and maintain on all occasions the supremacy of the Constitution and the federal laws under it. Above all things I trust that the first judges will not seek guidance in the decisions of the Privy Council upon the Constitution of Canada, which, broadly speaking, are totally inapplicable to the interpretation of the Constitution of the Commonwealth.2
1 J Reynolds, ‘A.I. Clark's American Sympathies and his Influences on Australian Federation’ (1958) 32 Australian Law Journal 62. 2 Andrew Inglis Clark to Alfred Deakin, 27 August 1903, MS 1540/14/638, Deakin Papers, NLA.
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Notwithstanding Inglis Clark's hope for the supremacy of the Constitution and the laws made under it, the role of a final court in a democratic system can be plagued with inexactitudes. The reliance upon (or indeed reference to) the jurisprudence of other nations, will be instructive, but is not without its controversy.3 The crafted endorsement of judicial review by Chief Justice Marshall in Marbury v Madison4 was taken as ‘axiomatic’ by the High Court of Australia notwithstanding the debate that the case still engenders.5 That the High Court, like the Supreme Court, would take upon itself the role of guardian of the Constitution remains a logical conclusion - but a bold assertion.
What limits or guidance there are to be found upon jurisprudential direction the bench are rarely to be found within the four corners of the document upon which their authority rests. The vesting of judicial power to be exercised, unless the judicial officer is ‘incapacitated’ or otherwise offending against some vague standard, gives little indication as to the stands of a final court should apply in any particular case.
In functioning democracies it is not the threat of removal that acts as a guide; the ultimate sanction is the loss of public confidence in the institution.6 This overarching objective is itself informative of the constitutional jurisprudence. As Owen Dixon, arguably Australia’s most prominent jurist, suggested:
Close adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. It may be that the Court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.7
It is thus important to acknowledge that judicial choice is constrained by the legal strictures of precedent and the judicial method. The requirement of determining the law one case at a time provides yet another restraint on judicial creativity.8 The fact that the limits on judicial decision makers are vague prompts consideration of who is making the decision.
The Other Judicial Choice
3 See Eric A. Posner and Cass Sunstein, ‘The Law of Other States’ (2006-7) 59 Stanford Law Review 131. In Australia the interchange between Justice McHugh and Kirby is an example of the debate as to the place of international law in establishing constitutional norms. See Al-Kateb v Godwin (2004) 219 CLR 562. 4 5 U.S. 137 (1803). 5 Australian Communist Party v Commonwealth (‘Communist Party case’) (1951) 83 CLR 1, 262. Fullagar J stated: ‘in our system the principle of Marbury v. Madison … is accepted as axiomatic’. See Michael Coper, ‘Marbury v Madison’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Corut of Australia (2001), 453-5. 6 Sir Ninian Stephen, ‘Fragile Bastion - Judicial Independence in the Nineties and Beyond’ (1982) 13 (3) Univ Melbourne Law Review 334. 7 Sir Owen Dixon, Address upon Taking the Oath of Office in Sydney as Chief Justice of the High Court of Australia on 21st April, 1952, in J Woinarski (ed), Jesting Pilate and Other Papers and Addresses (1965), p.247. 8 See, for example Cass Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (2001).
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The realisation the judiciary does exercise significant public power in a democracy obviously raises questions of accountability. The call for greater scrutiny of the judicial process naturally extends to the selection of the judges themselves. This is particularly so when it is perceived that the final court of appeal is a political arena through which social change can be affected.9 The pressure to democratise the selection of the judiciary, based on sound public administrative law principles, is found in similar calls to open up to scrutiny the administration of public policy generally. It is here that comparative constitutionalism provides an informative role in testing the various methods available.
In a major study on the appointment of judicial offices Kate Malleson and Peter Russell highlighted the impetuous for greater concentration on the issue. As Russell states:
The advent of the age of judicial power in common-law countries has aroused concerns about continuing to vest unfettered power of government control over appointment to and advancement within the judiciaries that are supposed to be rendering impartial justice in disputes to which the government itself is very often a party, and which deal with controversial issues of public policy.10
It is against this backdrop that the examination of the process can be considered. At the centre of any appointment process is the search of the ‘merit’. It goes without saying that merit is itself a contested term. As Geoffrey Davies, former Judge of the Queensland Court of Appeal, stated: ‘No word is more used or abused in this context [the criteria for judicial appointment] than “merit”’.11 Without a clear articulation of what constitutes merit, ‘the concept becomes almost wholly subjective, allowing each decision-maker to construct his or her own features which are significant’.12 The risk is that invocation of merit will simply collapse into the general tendency ‘to see merit in those who exhibit the same qualities as themselves’, with the result that those who appoint new judges will select those who share the professional, social and gender characteristics of their predecessors.’13
One recent articulation of the qualities and skills needed for judicial officers was outlined by the Judicial Appointments Commission in the United Kingdom. In a report on the appointment competition to the High Court in 2005 the Commission indicated that the eight general skills needed for the position:
9 Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring about Social Change? (2008). 10 Peter Russell, ‘Conclusion’ in Kate Malleson and Peter H. Russell (eds), Appointing Judges in an Age of Judicial Power (2006), 428. 11 Geoffrey Davies, 'Appointment of Judges', (Speech delivered at the QUT Faculty of Law - Free Lecture Series, Banco Court, Brisbane, 31 August 2006)
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1. Analysing and Decision Making 2. Legal Knowledge and Expertise 3. Integrity and Independence 4. Authority 5. Leadership & Administrative Duties 6. Managing Workload 7. Communicating 8. Treatment of Others.14
Others have articulated similar criteria.15 Notwithstanding the difficulty in fully defining merit, or rather agreeing on what weight is to be given to each element of it, the basic question remain: How it is to be tested or assessed?
Within the comparative constitutional context it is clear that a number of models exists for the appointment of judicial officers to the final court of appeal. Broadly speaking these models can be characterised as: an election, legislative confirmation, the use of an appointments committee, and an executive appointment. Undoubtedly each in their own way achieves the desired end the appointment of a judicial officer. So for instance, the traditional approach in Australia has been that the Governor-General appoints on the advice of the executive. Despite the criticism of some appointments, the overall quality of High Court appointments has been high. The challenge, in an age of judicial power, is to devise models that simultaneously provide rigorous tests for merit while the same time meet the democratic imperative, all this is to be done without compromising the independence of the judiciary. Not an insubstantial challenge.
It is possible to construct an axis that plots the degree of popular participation (either direct or representative) in the appointment of a judicial officer against the investigation or interrogation of merit. Under each of the models there is a minimum threshold of merit (often undifferentiated) and democratic accountability. Thus for instance, all models would reject an individual that could not make the minimum standards acceptable for judicial appointment. However, beyond the minimum standards (such as being legally qualified or some ‘good character’ test) there may be little focused assessment upon other significant merit criteria.
Considering now the operation of democratic and merit axis as they relate to the various models. It is obvious the most democratic of models is the election to office. This has not been the tradition in most common-law countries and has not found favour in Australia. As Chief Justice French recently commented:
14 Commission for Judicial Appointments, The Commissioners’ Review of the High Court 2005 Competition: Report to the Lord Chancellor 2006 cited in Simon Evans and John Williams, ‘Appointing Australian Judges: A New Model’ (2008) 30 Sydney Law Review 295, 313. 15 For a discussion of ‘merit’ see Evans and Willams, above, 297-9 and 313-4.
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The judicial task remains the same irrespective of the mode of a judge’s appointment. But the elected judge’s burden of maintaining public confidence and avoiding concerns about impartiality and conflict of interest appears to be more difficult.16
Notwithstanding its democratic involvement it is open to questions of whether or not the electors are in fact assessing fully merit criteria. This in part is due to the fact that the merit criteria are not overly articulated prior to the selection and in light of partisan politics it actually emerges. That said, it should be acknowledged that there are many models amongst the American States. Some models do have ‘merit selection’ as part of the process of appointment.17
If we consider the other extreme, executive appointment, it is clear that there is diffuse democratic accountability and no articulation or public testing of the merits of the candidate. It is this twin ability that has prompted reform in the United Kingdom and calls for similar changes in Australia, New Zealand and Canada.
The appointments commission arguably is less accountable to the public than executive appointment. Though most committees are themselves appointed by the executive, there is usually statutory independence granted to them. That said appointments commissions are predicated upon the articulation of the merit criteria and its methodical assessment. In other words whilst low on the democratic axis they tend to be high on the merit axis.
Finally the ‘advice and consent model’, such as exists in the United States, is a model of public accountability and involves legislative oversight. The degree to which a legislative committee can assess the suitability of a candidate for judicial office is in theory quite significant. However in recent times the enquiry has taken on a ritual of crafted speeches and bland responses.18 Politics, not surprisingly, is an overriding consideration.
Conclusion
The challenge of constitution adjudication and democracy manifests itself in many aspects of constitutional law. It is the natural inclination amongst public lawyers to subject power to accountability measures. Such an approach must extend not only to the decision itself, but also the means by which the decision maker is appointed. Comparative constitutional research will no doubt help to frame the debate.
16 Robert French, ‘In Praise of Unelected Judges’, The John Curtin Institute of Public Policy Public Policy Forum, Perth, 1 July 2009. 17 See generally, Thomas R. Phillips, “The Merits of Merit Selection’ (2009) 32(1) Harvard Journal of Law and Public Policy 67. 18 Michael C. Tolley, ‘Legal controversies over Federal judicial selection in the United States: Breaking the Cycle of Obstruction and Retribution over Judicial Appointments’ in Malleson and Russell (eds), above note 10, 80.
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Plenary V
Distributive Justice
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The Oldest Property: Why Statutory Caps on Damages for the Benefit of Government or of Third Parties Deserve Rigorous Analysis under the “Takings” Clause
José Julián Álvarez-González* University of Puerto Rico Puerto Rico
Scenario 1: A public school bus, driven by an intoxicated driver, strikes a pedestrian, a minor, and fractures her left leg. After a bench trial, a judge awards the pedestrian $50,000 for all of her causes of action, as well as $10,000 to each of her parents for their pain and suffering. The governmental defendant pays the entire judgment.
Scenario 2: Minutes after the incident narrated above, the bus falls off a steep cliff into the ocean. Thirty school children die, twenty are seriously hurt. After a bench trial, a judge determines that the actual damages of each of the surviving children amount to $500,000, that the pain and suffering of each parent of those twenty survivors amounts to $100,000 and that the pain and suffering of each parent of the thirty who did not survive amounts to $200,000. The sum total of the awards is $26 million. The judgment, following the law, orders the government to pay each of the surviving children $2,884.60; $576.91 to each of the survivors’ parents; and, $1,153.85 to each parent of a deceased, for a grand total of $150,000.00.1 The governmental defendant pays that judgment, with a sense of relief.
What explains this obvious miscarriage of justice? In its infinite wisdom, the Legislative Assembly of that not so hypothetical jurisdiction has determined that in order to avoid serious inroads into that jurisdiction’s budget, it will only pay relatively small claims, but will refuse to pay above a certain limit in larger claims. The limits are $75,000 per cause of action per “incident” up to a total of $150,000 for all causes of action arising out of the same incident. The accident concerning the pedestrian is a separate incident from the second, much more tragic one.
This brand of “distributive justice”2 is what nowadays often goes around under the euphemistic label of “tort reform.”3 The jurisdiction in the quite credible hypothetical example
* Professor of Law, University of Puerto Rico School of Law. 1 The equation is: [(500,000 / 26,000,000) x 150,000] + [(100,000 / 26,000,000) x 150,000] + [(200,000 / 26,000,000) x 150,000]. 2 I am not here concerned with systems of compulsory insurance where different types of damages to various kinds of plaintiffs have been indexed in great detail, and judges must follow such index. The Spanish system of compensation for traffic accidents is an example. See Law No. 30 of November 8, 1995. See also Jesús Pintos Ager, Baremos, INDRET (no. 1, 2000). Whatever objections may be raised concerning such systems, inequality between types of plaintiffs is not usually among them. Caps on damages or outright prohibition of compensation of moral damages in some types of cases is an entirely different matter. 3 As a recent article aptly put it, paraphrasing Harold Lasswell: “Tort reform is about politics and ‘who gets what, when, and how’.” Stephen Daniels & Joanne Martin, Texas Plaintiffs' Practice in the Age of Tort Reform: Survival of the Fittest – It's Even More True Now, 51 N.Y.L. SCH. L. REV. 285, 291 (2006-2007). They add that “tort reform” proposals “all are the result of organized political activity on the part of well funded interest groups trying
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is Puerto Rico,4 but there are comparable legislative schemes throughout the United States5 and around the world.6
Before a human being had anything of value which could be defined as “property” under the most traditional terms, it had itself: its body, its mobility, its physical and psychic health. One of the oldest and most basic tenets of liberal society has been that government cannot take for itself or transfer to others a human being’s “property” without paying just compensation.7 Yet, that promise usually has been kept more faithfully concerning interests in things that may be traded in the market, albeit the concept of such “things” has evolved.
When it comes to the most basic function of tort law, to compensate “A” for the damage that “B” intentionally or negligently caused the former, legislatures in the United States and elsewhere, quite often with judicial blessing, have found it proper to impose caps on damages, either to benefit government or certain categories of third parties whom government has looked upon with favor.8 Arguments against such schemes usually have failed, whether
to change the law in ways that benefit them to the detriment of their opponents.” Id. 4 See P.R. Laws Annotated, title 32, § 3077. This statute was patterned after the Federal Tort Claims Act, 28 U.S.C. § 2674, which, however, does not contain caps on recoverable damages. The Puerto Rican limits used to be even smaller ($15,000 per cause of action; $30,000 for all causes of action arising out of the same incident), but the Supreme Court of Puerto Rico struck these down in Torres v. Castillo Alicea, 111 DPR 792 (1981), under substantive due process analysis. When the legislature raised the limits to the current level, the Court, one Justice bitterly dissenting, found no constitutional problem, although it did not analyze it under the federal or Puerto Rican Constitutions’ just compensation clause. See Defendini Collazo v. E.L.A., 134 DPR 28 (1993). There are several other similar schemes under Puerto Rican law. For instance, a physician who works for the government of Puerto Rico is absolutely immune from malpractice lawsuits. The government is the only proper party, subject, of course, to the above limits. See P.R. Laws Annotated, title 26, § 4105. Other schemes protect physicians who work in the private sector. See id. §§ 4101-4111. A somewhat typical civil law jurisdiction in this area of the law, Puerto Rico does not provide for trial by jury in civil cases. The argument for “tort reform” to constrain “runaway” juries, so prevalent in the United States, is therefore not applicable to Puerto Rico. 5 According to a recent article, there are forty-two states in the United States which limit the amount of damages recoverable for governmental torts, and only one –Washington– which explicitly refuses to do so. See Lawrence Rosenthal, A Theory of Governmental Damages Liability: Torts, Constitutional Torts, and Takings, 9 U. PA. J. CONST. L. 797, 804 n. 27, 811 n. 49 (2007). After considering arguments for and against governmental liability in general, this author tends to endorse caps on damages without considering the relevance of the just compensation clause, which he discusses only as pertains to traditional property. 6 See, e.g., Organisation for Economic Cooperation and Development, Medical Malpractice: Prevention, Insurance and Coverage Options 38-39 (No. 11, 2006) (concerning medical malpractice). In 1978, the Canadian Supreme Court handed down a trilogy of cases where it held that, save for exceptional circumstances, noneconomic damages in all cases should be capped at $100,000, with an allowance for inflation. See Theresa M. Hottenroth, Lessons from Canada: a Prescription for Medical Liability Reform, 13 WIS. INT'L L.J. 285, 298 (1994). 7 As recognized in John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 YALE L.J. 524, 563 (2005), Chief Justice Marshall invoked Blackstone when he argued that “the very essence of civil liberty . . . consists in the right of every individual to claim the protection of the laws, whenever he receives injury,” and that “[o]ne of the first duties of government is to afford that protection.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). 8 For a review of such schemes and of litigation concerning them, which for the most part has not been
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viewed under due process, equal protection, access to courts, or right to jury provisions. But analysis under the takings clause9 has been infrequent, or perfunctory, when undertaken. The U.S. Supreme Court’s avoidance of that issue in Duke Power Co. v. Carolina Env. Study Group, Inc.,10 surprisingly, does not seem to have provided a lead to many litigants and courts. But there are important exceptions.11
I submit that caps on economic damages, either for the benefit of third parties or of government, should be treated under the takings clause of a liberal constitution with as strict a standard as that used for “traditional” takings of immovable or movable property. In the context of government takings, I propose that any theory of sovereign immunity contradicts the promise of the takings clause. But I go further. I submit that caps or outright prohibitions of awards for “noneconomic” damages are also questionable and should undergo similar analysis. To argue that courts may be instructed not to grant compensation –or not to grant it above a certain level– in cases where those courts would otherwise grant such compensation, is a denial of the promise of the takings clause.12
If a human being has a constitutional right to be paid when government forces her to keep a tract of land completely barren,13 or to “dedicate” a tract of land for government use,14 or takes for itself interest on a court-deposited fund,15 or grants a free easement for the use of
successful, especially in more recent times, see Victor E. Schwartz & Leah Lorber, Judicial Nullification of Civil Justice Reform Violates the Fundamental Federal Constitutional Principle of Separation of Powers: How To Restore the Right Balance, 32 RUTGERS L.J. 907, 939-76 (2001). Some more recent explorations of the subject include Michael P. Murphy, Tort Reform: Would a Noneconomic Damages Cap Be Constitutional, and Is One Necessary in Iowa? 53 DRAKE L. REV. 813 (2005); Alexandra B. Klass, Tort Experiments in the Laboratories of Democracy, 50 WM. & MARY L. REV. 1501 (2009). 9 U.S. CONST. amend. V (“[N]or shall private property be taken for public use, without just compensation”). 10 438 U.S. 59, 94 n. 39 (1978) (leaving for another day the question of whether a taking could occur if, in the event of a nuclear disaster, damages exceeded the $500 million cap established by the Price-Anderson Act of 1957, 71 Stat. 576, 42 U.S.C. § 2210). 11 See, e.g., Goldberg, supra note 7. Professor Goldberg’s proposal is much more complex and does not rely alone on the just compensation clause. However, my core reasoning in this short, schematic piece has much in common with his. For an argument against governmental liability for “constitutional torts” that would seem to reach the same result for “common law torts”, see Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345 (2000). 12 The takings clause figured prominently in judicial invalidations of similar schemes in the nineteenth century. See Goldberg, supra note 7, at 563, citing Robert Brauneis, The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law, 52 VAND. L. REV. 57 (1999). One need not be an avowed originalist in order to accept that not every early interpretation of a constitutional text should be considered passé. And this one has much more in its favor, besides the constitutional text and its original understanding. It must be remembered, moreover, that in recent decades the U.S. Supreme Court has reinvigorated takings clause analysis, at least as concerns traditional conceptions of property. 13 Lucas v. South Carolina Coastal Council, 505 US 1003 (1992). 14 Dolan v. City of Tigard, 512 US 374 (1994). 15 Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 US 155 (1980).
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a private cable-TV firm,16 why can government order courts to refuse to grant reasonable compensation for the deprivation of life, limbs, or physical or psychic well-being?
It is not enough to answer, as the Puerto Rico Supreme Court did,17 parroting other courts, that there is no constitutional right to a civil action. There is a constitutional right to sue government when it takes private property for public purposes. Can it be seriously claimed that physical and psychic well-being is not “property” or has no value? Is it not precisely because of its worth that its wrongful deprivation is compensated? It would most probably be invalid for a statute to limit the value of just compensation in cases where government takes tangible immovable or movable property. Why should government be permitted to refuse to justly compensate or authorize others not to justly compensate other valuable goods that have been tortiously destroyed or seriously damaged by it or by others?18
If, as it has been cogently argued, the basic question that an affected individual asks and that government must answer under the takings clause is “Why me?,”19 caps on damages –of every type– provide no answer. They do not even try. And their typically perverse impact on disadvantaged groups and individuals is well-documented.20 The oldest property is at least as valuable –if not more– than the old, the new or the newest. Not to recognize this, turns takings clause analysis into an incoherent play on labels.
16 Loretto v. Teleprompter Manhattan C.A.T.V. Corp., 458 US 419 (1982). 17 Defendini Collazo v. E.L.A., 134 DPR 28, 68-69 (1993). 18 I am not here concerned either with the common law concept of punitive damages. As a matter of fact, Puerto Rican law, just as civilian tort law in general, does not accept that remedy except in exceptional, statutorily- authorized instances. Carrasquillo v. Lippitt & Simonpietri, Inc., 98 DPR 659, 669 (1970). For an analysis which tends to be at odds with mine, since it prefers to focus on the consequences for non-victims of paying full compensation to victims and argues that it would make valuable goods, such as medicine, more expensive for non-victims, see Lucas Grosman, El cuerpo humano como propiedad y el problema de los daños, in DERECHO Y PROPIEDAD – SEMINARIO EN LATINOAMÉRICA DE TEORÍA CONSTITUCIONAL Y POLÍTICA 106 (2008) (Paola Bergallo, ed.). That argument, however, would seem to run counter to the core message of the takings clause: an individual should not have her property destroyed, for free, in order to benefit the rest of society. 19 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 9-6, at 606 (2d ed. 1988). 20 See Lucinda M. Finley, The Hidden Victims of Tort Reform: Women, Children, and the Elderly, 53 EMORY L.J. 1263 (2004). See also Goldberg, supra note 7, at 622. Although Professor Goldberg’s stance on caps on damages is somewhat less adverse than mine, he ends up agreeing with my core arguments, when he states: [I]it is conceivable that a court should strike down even this more modest form of cap as applied to classes of plaintiffs whose claims will effectively be wiped out by it. These might include, for example, plaintiffs who will not have the sort of significant economic losses that render them eligible to obtain meaningful redress, such as homemakers and the elderly. Id., citing Finley, supra, and David M. Studdert et al., Are Damage Caps Regressive? A Study of Malpractice Jury Verdicts in California, 23 HEALTH AFF. 54, 60-62 (2004).
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The Sugar Belt: Redefining “Extractive” Industry In the Era of Biofuel Development
Barbara L. Bernier Florida A&M United States
This paper sets forth the proposal that by definition, industrial activity and market participation, a sugar cane plantation or bateye be designated as an extractive industry and thereby require increased levels of scrutiny and transparency such as the standards set forth by EITI and the proposed ISO 26000. The economic importance of sugar cane is already high and can be a unique opportunity for positive developmental growth in the Third World as energy markets look to alternative resources in the biofuel marketplace. An extractive industry designation can provide the means necessary for guidance directed at growth and progress in a plantation contrasted with continued sustenance and suppression exercised by the bateye.
The common application of the definition of the extractive industry is traditionally limited by traditional usage and falls only on those companies involved in the mining of minerals, oil, gas and chemicals. This common definition acknowledges exploitation of a non-renewable natural resource as the business activity of an extractive industry. However, it was the resultant profound negative impact of this industry upon the political, social, economic and environmental spheres of the community that former Prime Minister Tony Blair recognized and sought to address with the EITI initiative and subsequently, the goals of the ISO 26000 standard. Most simply stated, it is the breadth and depth of the impact and not necessarily the final product that gives rise to the need for higher standards of scrutiny and transparency. The concerns arising out of an absence of transparency - from failures to disclose and voids where corporate social responsibility should be found – are the fundamental guideline principles of both the EITI and the proposed ISO 26000. Consistent with these principles, an extractive industry label is properly assessed by the nature of the impact on the community; where the impact lacks trace indicators of positive contribution to the social class structure and development of a community, then deductively the industrial activity associated with the impact is extractive - of the potential of the people and their future. This proposed broader perspective is more accurate in that it is a holistic approach to impact assessment and activity definition. In such a field of view, an activity is extractive where any benefit associated with the activity is exclusive to the business entity and to the severe detriment of the individual and community; vertical integration of the benefit is denied and the activity is self perpetuating.
A parallel analysis of traditional extractive industries with the bateye reveals their long list of impact similarities – leaving only a single distinguishing factor; whether the natural resource that is processed is renewable. The impacts of the bateye are identical to the mine and the oil rig but for the re-growth of the cane, enabling the extraction to continue for tens of generations and beyond. Although the bateye is not confounded by the ultimate challenge of
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an extractive industry’s business plan – a finite limit of production – the experience and adaptation to regulation of impact is the path of progress that the extractive industry can potentially share with the bateye.
A multipart test or series of markers examining the nature of an extractive industry’s activities overall is useful to understand the complexity and totality of the impact on the community. This serves as a more complete approach because it does not limit the assessment to the single factor of whether or not a resource is renewable. The indicia of extractive activity impact are: an exploitation of a natural resource, reliance on the labor of a population isolated either by their own history or by geography, the labor force is often low skilled, uneducated and not mobile, a high environmental impact, the area lacks development in economic, educational and business growth, a high degree of political involvement by the company, a relatively long history of exploitation with few advances in technological methods, disparate profit/pay ratio, and community-wide devastation would ensue with the cessation of company activity.
The significance and timeliness of applying the label of extractive industry to the bateye is the impending and unprecedented demand for sugarcane as a primary biofuel product. The climate zone for the production of sugarcane coincides with the zones of greatest poverty, political unrest and underdeveloped nations in the world, inviting exploitation in the absence of awareness, scrutiny and transparency. Failing to address the development of future bateyes as biofuel providers in the context of an extractive industry may yield political, economic, human rights, and environmental disasters of a magnitude never seen in modern history.
The most appropriate case study available in furtherance of the argument that sugarcane production be labeled an extractive industry is the three hundred year history of the bateye. Cast in the light of its successful history, the bateye production of sugar cane as a primary biofuel is the brass ring that any country, tribe or business entity can and will grab and exploit. The context of the development of the bateye model of sugarcane production in Haiti and the Dominican Republic lends credibility to the argument predicting twenty-first century biofuel bateyes in the absence of international transparency and scrutiny. Present day reality descends on this prediction with reports in Brazil in 2007 documenting biofuel bateye activity with the enslavement of people for the production of sugar cane.
The final portion of the paper is a call for action. The long history of sugar cane plantations in the Dominican Republic offers a classic case study perspective because it is a near perfect model of one of the oldest extractive industries in the world with more than three centuries of history as hard evidence of the bateye’s continued success as a business entity. The history is also predictive as to the potential development and replication as a low capital investment where profit and return thrive in the social, political, and environmental climate that exists between the 30th degree north and 30th degree south latitudes – the Sugar Belt.
The activities of the traditional extractive industry and their resultant pervasive impact has continued at times unabated in those countries considered to be developed or of the first world – endowed with the luxury of law protecting the individual, society and the land. Even there,
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they required an imposition of higher levels of scrutiny and standards of operation to address the voids left on the land and the people – the society as a whole. It was the depth and breadth of their impact that finally generated the need for the EITI and proposed CSR standards like the ISO 26000. An understanding that the target and focus of these standards and initiatives is the industry’s impact reveals the more complete and accurate definition of an extractive industry rather than a simplistic reliance on a categorization of the final shipped product.
Beyond standards of impact, the standard of fairness calls for the imposition of the extractive industry label on the production of sugar cane. There exist little or no legal, constitutional or environmental protections in the under developed countries of the Sugar Belt where regulation and enforcement is necessary for corrective action on what now takes place in and around the zone of the bateye. The designation and supportive enforcement via international entities can serve as the method; deployed now it can be pre-emptive protection from intense biofuel demand pressure as well as providing a program for positive economic growth.
The demand for primary biofuel products is heightened by the diminishing carbon based fuel supply, resultant economic impact, political ramifications of using potentially non-friendly suppliers and carbon footprints. This demand is matched in intensity by the need for growth and development of those countries that happen to fall in the zone of the Sugar Belt. But it is the classification as a supplier of fuel that assimilates the sugarcane field with the mine and oil and gas rigs on a third and predictably more visible level where fuel production is considered by traditional definition to an extractive activity.
The historical overview of this paper serves as a proven equation showing that where similar demand is created alongside a pattern of behavior, the likelihood of exploitation and conflict increases exponentially. Therefore, a call for a new factor in the equation – sugar production is an extractive industry and regulated as such – will yield a new byproduct or impact in the production of sugar – sustained economic, social, and political growth with careful consideration for the environment. Corporate Social Responsibility is one control necessary for the reconfiguration of traditionally disparate interests - corporate versus social – into mutually supportive and growth oriented interests.
The paper establishes a sound basis for the updating of the extractive label across a triplex of reasoning and evidence. First as a mechanical process, second as an impact and lastly as an energy sector participant. In the last category, The Energy Sector Management Assistance Program, as a function and mission of the World Bank since 1983, has produced compelling analysis of the various energy sectors as they relate to the development of rural and poverty stricken areas. The analysis considers the complexities of scientific development, energy trade policy and the economic and social response to the newest energy strategies and commitments.
Finally, the paper also hopes to establish a platform onto which other adversely affected industries, where patterns of abuse are pervasive, to assimilate and seek guidance for development and basic protections through imposition of other industry suspect classifications,
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increased scrutiny, calls for transparency and adherence to Corporate Social Responsibility Standards. The extractive industry can provide some of the guidance and cooperation necessary to these mandates by way of their own histories, business model adjustments and plans for compliance into the future.
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Socioeconomic Discrimination in the Enforcement of Constitutional Rights: The Case of Domestic Privacy under the United States Constitution
Jordan C. Budd1 Franklin Pierce Law Center United States
The United States Constitution does not expressly address distributive justice. Moreover, the document’s general provisions barring unequal application of the laws have been construed to permit discrimination against the poor in most areas of social and economic policy provided that the discriminatory law in question is rationally related to a permissible governmental objective.2 Under this highly permissive standard, nearly any discriminatory provision will be upheld provided that it does not intrude upon an independently protected constitutional interest. Even with respect to the exercise of such independently protected rights, however, American courts have impliedly sanctioned discriminatory burdens imposed upon the indigent3—most notably in the context of procedures governing distribution of statutory benefits to the poor, where uniquely onerous privacy intrusions have repeatedly been upheld against constitutional challenge.4 A notable recent example of this phenomenon involves the privacy interest perhaps most celebrated in the American tradition: the right under the U.S. Constitution’s Fourth Amendment to be secure in one’s home absent good cause for government intrusion.5
As a precondition to the provision of welfare assistance to the indigent, various local jurisdictions within the United States presently require that applicants submit to an
1 Professor of Law, Franklin Pierce Law Center.
2 San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 17-29 (1973); Dandridge v. Williams, 397 U.S. 471, 485 (1970).
3 See, e.g., Julie A. Nice, No Scrutiny Whatsoever: Deconstitutionalization Of Poverty Law, Dual Rules Of Law, & Dialogic Default, 35 FORDHAM URB. L.J. 629, 629-36 (2008); James G. Wilson, Reconstructing Section Five of the Fourteenth Amendment to Assist Impoverished Children, 38 CLEV. ST. L. REV. 391, 402-15 (1990).
4 See, e.g., Sanchez v. County of San Diego, 464 F.3d 916 (9th Cir. 2006), cert. denied, __ U.S. __, 128 S. Ct. 649 (2007); cf. Naomi Cahn, Models of Family Privacy, 67 GEO. WASH. L. REV. 1225, 1243 (1999) (“The history of aid to poor women is replete with attempts to control their lives by making receipt of public welfare contingent on their compliance with morality requirements that also involve state supervision of their lives.”); Jonathan L. Hafetz, “A Man’s Home Is His Castle?”: Reflections on the Home, the Family, and Privacy During the Late Nineteenth and Early Twentieth Centuries, 8 WM. & MARY J. WOMEN & L. 175, 240–42 (2002).
5 See, e.g., Silverman v. United States, 365 U.S. 505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”); D. Benjamin Barros, Home as a Legal Concept, 46 SANTA CLARA L. REV. 255, 255 (2006) (“In the United States, home and home ownership are held in high cultural esteem . . . . [W]e have developed something of an ideology of home where the protection of home and all it stands for is an American virtue”).
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unannounced and suspicionless search of their homes by law enforcement officers looking for evidence of ineligibility or fraud.6 Under the most aggressive of these eligibility-verification programs, impoverished applicants do not receive an appointment time and are not even told what day the search will occur. Instead, investigators appear at the door, identify themselves as law enforcement officers, and request entry. Applicants are told from the outset that if they do not permit the search, they will receive no aid. Once inside, investigators may spend an hour or more interviewing the applicant regarding eligibility criteria and conducting a “walk through” of the home.7 During the interview, investigators ask to see bank statements, pay stubs, tax returns, benefit check stubs, and other documents. In the course of the subsequent walk-through, investigators may search any space within the home that they deem relevant to verification, and an applicant’s refusal to permit inspection of any portion of the home will result in the denial of benefits.8 Investigators thus “may request to look at the contents of bedrooms, closets, kitchens, bathrooms, medicine cabinets, and drawers in search of evidence of ineligibility or fraud.”9 Focusing primarily on evidence of an undisclosed adult male in the household, investigators count toothbrushes, look for men’s bath products, examine the contents of laundry baskets, open refrigerators, and explore the contents of trash cans and dresser drawers.10
In sanctioning these extraordinarily invasive practices in the absence of a warrant or suspicion of wrongdoing, American courts have demonstrably failed to address the privacy rights of the poor on shared terms with others. Neither precedent nor the principled extension of existing constitutional doctrine supports such practices or explains why judicial decisions permitting the intrusions should not be applied to authorize a vast expansion of suspicionless search practices directed at the homes of the less destitute.11 In particular, the searches at issue lack all of the essential attributes of the narrow class of suspicionless searches sanctioned in other contexts under the Fourth Amendment’s “special needs” doctrine.12 Most notably, the searches at issue are designed to advance a need that is not “special” in any respect: the
6 See, e.g., Sanchez, 464 F.3d 916 (San Diego County’s program); cf. S.L. v. Whitburn, 67 F.3d 1299, 1301–03 (7th Cir. 1995) (Milwaukee County’s program); Smith v. Los Angeles County Bd. of Supervisors, 104 Cal. App. 4th 1104, 1110–12 (Cal. Ct. App. 2002) (Los Angeles County’s program); Roberson v. Giuliani, 2000 WL 760300 (S.D.N.Y. June 12, 2000) (New York City’s program); see generally, Hafetz, supra note 4, at 228 (“The increased scrutiny of recipients to enforce measures like work requirements has led to a rebirth of unannounced home visits in some states.”).
7 464 F.3d at 918.
8 Sanchez v. County of San Diego, 2001 WL 1830236, at *2 (S.D. Cal. Dec. 27, 2001).
9464 F.3d at 936 (Fisher, J., dissenting).
10 Sanchez v. County of San Diego, 2003 WL 25655642, at *2, *8 n.8 (S.D. Cal. March 10, 2003).
11 464 F.3d at 931-44 (Fisher, J., dissenting); Sanchez v. County of San Diego, 483 F.3d 965, 965-69 (9th Cir. 2007) (Pregerson, J., dissenting from denial of en banc review).
12 See, e.g., Chandler v. Miller, 520 U.S. 305, 309, 323 (1997); Bd. of Educ. v. Earls, 536 U.S. 822, 836–37 (2002).
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government’s mundane administrative interest in the fiscal integrity of a benefits program.13 If the government is justified in searching, without suspicion, the home of every applicant for public assistance, simply to advance its general interest in preventing the improper expenditure of some of its funds, then it necessarily is justified in searching, again without suspicion, the home of every person claiming a benefit, tax credit, or deduction that depends in part on representations about conditions within the home.14 For example, the rationale would permit school officials to conduct suspicionless home searches of all students seeking to enroll in a new school district to verify their residency within the specified attendance boundaries.15 Tax officials likewise could search the homes of all persons claiming a mortgage-interest deduction to verify that the subject property is used for a qualifying purpose.16
Presuming that the decisions do not represent a new and unparalleled doctrinal assault on the constitutional protections afforded the homes of virtually all Americans—an untenable proposition, given the practical impossibility of its implications—the conclusion is apparent that these cases instead lay bare the dual and discriminatory nature of the contemporary Fourth Amendment. Quite simply, the provision means two very different things, depending on the relative wealth of the person seeking its protection. The decisions thus represent an implicit concession that the poor constitute a subconstitutional class for purposes of the Fourth Amendment privacy right, and a confirmation that judicial bias continues to powerfully burden indigent litigants in the American courts.17
13 464 F.3d at 919; see id. at 935 (Fisher, J., dissenting).
14 See, e.g., Sanchez 483 F.3d at 969 (Pregerson, J., dissenting from denial of en banc review).
15 See, e.g., Dunbar v. Hamden Bd. of Educ., 267 F. Supp. 2d 178, 182 (D. Conn. 2003).
16 See 26 C.F.R. § 301.7605-1 (2009); Wyman v. James, 400 U.S. 309, 343 (1971) (Marshall, J., dissenting). 17 In their dissent from the most recent opinion upholding suspicionless intrusions upon the domestic privacy of welfare applicants, seven appellate judges noted that the developing jurisprudence constitutes “nothing less” than an “assault on our country’s poor.” 483 F.3d at 966, 969 (Pregerson, J., dissenting from the denial of en banc review).
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Due Regard for Constitutional Values: The South African Constitutional Court and Substantive Justice
Eric C. Christiansen* Golden Gate University United States
Substantive justice is an ever-elusive goal for constitution-makers. A desire to structure a system of government and draft rights protections that will advance genuine justice for their people is almost always a claimed aspiration of nation-builders, but it is a goal that is always met imperfectly, if not inadequately. Since the end of apartheid in the early 1990s, the Republic of South Africa has attempted an intentional process of remaking itself as a "human rights state," a nation that would espouse and accomplish substantive justice—justice demonstrated by more than formal, legal equality or the limited protection of negative liberties. The Preamble to the 1996 South African Constitution declared the new nation to be "a society based on democratic values, social justice and fundamental human rights…" with the express mission to "improve the quality of life of all citizens and free the potential of each person." The 1996 Constitution was a reaction against the apartheid ideology and the tangible effects of more than forty years of political and socio-economic discrimination. And, because the injustice of apartheid was evidenced in more than purely legal ways, the constitutional response had to incorporate broader elements of justice. The new post-apartheid order would have failed to respond fully to apartheid—failed its mission of transformative constitutionalism—if the result was formal, legal equality only. Hence, the South African Constitution goes beyond the protection of standard civil and political rights ; it conceives of and pursues justice in its deeper dimensions as well. The post-apartheid Constitution notably included social welfare rights in addition to traditional civil rights. But rights to healthcare, housing and education were not the Constitution's only tools to advance substantive justice. The desire for a transformative constitutional state also resulted in a particularly potent Constitutional Court. The Court's pre- eminence results from express constitutional provisions that equip the Court to oversee the numerous remnants of the apartheid-era judiciary and civil service. The post-apartheid courts were expressly granted the power of judicial review and the Constitutional Court was created as a capstone court over the judiciary in order to ensure the transformation of South Africa. Expansive procedural authority allows the Court flexibility and ensures its ultimate authority. Hence the Constitutional Court is equipped with broad subject matter jurisdiction (for a specialized court), allows multi-form access, exhibits very permissive standing criteria and has the capacity to issue any remedy consistent with the interests of justice. South Africa has already demonstrated the viable (if reserved) justiciability of enumerated socio-economic rights and has shown, I believe, that the South African model of social welfare adjudication—one critical element of substantive justice—could be borrowed by
* Professor of Law, Golden Gate University School of Law and Director, GGU-Paris X (Nanterre) Summer Comparative Law Program,
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other national courts. The conclusion of many critics has been that, although the Court (like the South African government generally) has been responsible for significant social and political progress, it has had only modest impact on the seemingly intractable problems of socio- economic injustice and substantive inequality. However, for those critics—and I include myself among them—particularly interested in the Constitutional Court's ability to advance genuine social justice, several recent cases indicate the Court may be adding a new dimension to its experiment in transformative constitutionalism. Increasingly, the Court appears to be more creatively using certain elements of its institutional capacity (i.e., its access provisions, jurisdictional rules, remedial power and interpretive mandate) to promote justice rather than exclusively relying on substantive rights provisions directly. These developments, if they continue to be evidenced by future generations of the Court, are more easily exported to other nations because they do not require specific textual language (e.g., enumerated socio-economic rights) in the adopting nation's constitution. By way of illustration, two recent cases highlight what appears to be a larger trend: using the Court’s standard “purposive” interpretive model to give force and effect to the Constitution’s fundamental values in a determinative manner that facilitates substantive justice. The first case of note, Occupiers of 51 Olivia Road,1 concerned the authority of the City of Johannesburg to evict residents of unsafe and unsanitary buildings. Even though the city had satisfied the (substantial) formal legal requirements, the Constitutional Court prohibited the eviction of the current residents until the two sides to the dispute had come together in a process of "meaningful engagement" to discuss how best to address the current situation and the difficulties that would arise from the evictions. The "reasonable measures" required by the Court's purposive reading of the constitutional right of access to adequate housing (in the seminal 2001 housing rights case, Grootboom) include that the City meaningfully engage in an open and honest, good faith process to anticipate and address the consequences of eviction prior to evicting even unlawful residents. A city that evicts in compliance with statutory law but without meaningful engagement "acts in a manner that is broadly at odds with the spirit and purpose of the constitutional obligations…." Compliance with the legal requirements for eviction is necessary but not sufficient; a more substantive standard—with greater regard for constitutional values— will be enforced by the courts. The second case evidencing this trend is the Njongi case, which concerned a decision by the provincial government to rely on a statute of limitations (prescription) defense to deny back-pay after erroneously withholding an individual's social welfare grant.2 Writing for the Court in Njongi, Justice Yacoob stated "There is an inevitable and, in my view, moral choice to be made in relation to whether [the state] should plead prescription, particularly when the debt is due and owing." Consideration of this moral element is a duty placed on all state actors by the Constitution. In Ms. Njongi's circumstances, some of the important elements to be
1 Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and Others, 2008 (3) SA 208 (CC) (S. Afr.), http://www.saflii.org/za/cases/ZACC/2008/1.pdf. 2 Njongi v Member of the Executive Council, Department of Welfare, Eastern Cape, 2008 (4) SA 237 (CC) (S. Afr.), http://www.saflii.org/za/cases/ZACC/2008/4.pdf.
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considered were her poverty and vulnerability, her disability and the obligatory nature of the grant under the South African Constitution’s social welfare provisions. Her circumstances should have resulted in a decision to not assert the government's otherwise legitimate statutory defense because a "decision by the State whether or not to invoke prescription in a particular case must be informed by the values of our Constitution." The Court requires government entities to reflect on whether otherwise legal and neutral decisions are consistent with constitutional values. A failure to make such consideration violates the constitutional requirement that the values of the Constitution inform all state decision-making. This constitutional mandate implies that all state administrative decisions are subject to court challenge based on whether they exhibit due regard for constitutional values, not merely compliance with constitutional law. Indeed, the identified values of the Constitution are arguably raised to the level of enforceable law by the Njongi case. The two cases highlighted above illustrate that the South African Constitutional Court is still pursuing justice as a central player in the transformative national drama. Furthermore, the novel uses of judicial power in cases like Olivia Road and Njongi demonstrate a potential for social justice that is a hopeful sign for the future of South Africa. This hope balances the disappointment of many commentators with the limited scope of the Court's social welfare jurisprudence. The Court has thought creatively and used its procedural authority expansively to advance fuller, more generous notions of justice. Its expanded procedural capabilities empower it to mandate due regard for the values of the Constitution. The robust enforcement of constitutional values by the Constitutional Court is more easily justified by South Africa's history and by its particular Constitution, but all constitutions have important, fundamental values. And, at least among courts empowered with judicial review, some application of the fundamental values that undergird the constitution informs all interpretation and application of constitutional rights. The results may not be as dramatic in less overtly empowered judicial systems but the South African Constitutional Court can certainly inspire other countries' courts (like it does its own lower courts) to explore their commitment to their own deepest constitutional values and to substantive justice.
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Justiciability of Economic and Social Rights in Chile
Rodolfo Figueroa. Diego Portales´ University Chile
Justiciability of economic and social rights (ESR) is a controversial topic in Chile (and, of course, in many other countries) and I guess a majority of Chilean lawyers and judges probably think those rights are not justiciable. An example of this mentality is the decision of the Chilean Supreme Court in the cases of people living with HIV/AIDS (2001), where gravely ill patients sought tri-therapy treatment from the public health System. The request was denied by the court on financial budgetary considerations and also upon the idea that courts cannot get involved in these issues.1 This doctrine has detrimental impact in the configuration of both the role of the judiciary and the administration, leaving individuals unprotected, excluding the administration from judicial control and, consequently, granting the administration strong discretion on public health issues. In this paper I try to delineate and justify a model of judicial review of ESR within the Chilean constitutional context.
I think that in order to determine a model of judicial review for ESR, we must pronounce some ideas regarding the following topics: 1) The role of the judiciary and the principle of separation of powers, 2) The problem of adjudicating in topics where scarcity of resources is crucial, 3) Standards of review to be applied by the courts, and 4) Declarations of the courts.
1) The role of the courts and the principle of separation of powers. In this subject, the experience of the Constitutional Court of South Africa (CCSA) is very illuminating, because it presents a model according to which courts must intervene in ESR but in a restrained manner. For example, in the TAC case2 the CCSA: admitted the institutional limitations of the courts to deal with the factual and political considerations involved in ESR; declared that the courts should not decide how public resources should be spent; said that the Constitution contemplates a restrained and focused role for the courts; regarding ESR, the role of the courts is to ensure that legislative and other measures taken by the state are reasonable, and courts should “guarantee that the democratic processes are protected so as to ensure accountability, responsiveness and openness.”3 These citations show how aware the court is about the necessity of being moderate when intervening in issues pertaining to policies made by political bodies. However, the court is clear that in such matters judges should intervene if a constitutional right is at stake. The reasoning of the court is the following: a) The primary duty of courts is to enforce the Constitution and the law. b) The Constitution requires the state to “respect, protect, promote, and fulfill the rights in
1 The Supreme Court said “[h]ealth authorities are the only one entitled to enforce public health policies designed and implemented by the administration, according to the available resources and other parameters that are not to be elucidated under this jurisdiction.” Case N° 3.599- 2001, September 10th, 2001. Section 6. 2 CCT 8/02, 2002. 3 See CCT 8/02, 2002, sections 36-38.
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the Bill of Rights”. c) If a state policy is challenged as inconsistent with the Constitution, courts have to consider whether in formulating and implementing such policy the state has given effect to its constitutional obligations. d) If the court should hold in any given case that the state has failed to do so, it is obliged by the Constitution to say so. e) If that constitutes an intrusion into the domain of the executive, that is an intrusion mandated by the Constitution itself.4 All these considerations are perfectly applicable to Chile, where the Constitution: i) Recognizes ESR in the Bill of Rights.5 ii) Demands from all state organs to respect and promote all those rights recognized by the Constitution and International Treaties ratified by Chile.6 iii) Declares that the provisions of the Constitution are mandatory for every state organ, person, institution or group.7 iv) Declares that judges could never excuse themselves from exercising their jurisdiction.8 We cannot pretend that those rights exist only in paper, as the CCSA pointed out in the Grootboom case.9 In consequence, ESR are justiciable in Chile and courts must fulfill this duty. The problem -which is not a small one- is to determine how can ESR be justiciable. This issue will be addressed later. For now, in relation to the principle of separation of powers, the key idea is to control the policy, not make it. A Judicial review that controls the policy, under certain criteria, that leaves sufficient space for the administration to make the appropriate decisions, which intervenes only because a constitutional right has allegedly been infringed, is compatible with the principle of separation of powers. Such a principle cannot be construed as shielding the administration from review; it must be understood in connection to the idea of rule of law. Therefore, this principle demands control over the administration to ensure respect for the Constitution.
2) Adjudicating in a context of scarcity of resources. Scarcity of resources is a crucial fact when exercising judicial review of policies involving positive obligations on the part of the state (or the government). Sometimes the government relies on this fact to justify its particular polices in any given subject, trying to shield them from judicial scrutiny. The jurisprudence of the CCSA, again, contains interesting lessons in this subject: a) Scarcity of resources must always be taken into consideration by courts when reviewing governmental policy. Judges cannot think about rights as if resources were not a
4 See CCT 8/02, 2002, section 98. 5 Right to health protection, article 19 No 9; right to education, article 19 No 10; right to social security, article 19 No 19, etc. The Chilean Constitution does not have any section titled Directive Principles of State Policy, like it is the case of the Irish (article 45) or the Indian (article 37) Constitutions, according to which some rights are not enforceable. 6 Article 5. 7 Article 6. 8 Article 76. 9 CCT 11/00, 2000, section 20.
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constraint.10 b) The State cannot be forced to do more than its resources allow.11 c) Governmental authorities are the ones to decide on the spending, not judges.12 However, the previous considerations do not prevent the review of governmental policies: i) The government must protect ESR regardless the always-existent scarcity of resources. Scarcity only limits the range of protection, but does not exclude it. ii) Courts should make sure the government is fulfilling its obligations, within the available resources. This control does not put the judiciary in a managerial position, nor does it replace governmental officials with judges. The idea is to control the policy, not to make it. Judges will not decide the spending. iii) A judicial control on the use of resources in a given policy allows checking: if there is a policy, if that policy is reasonably conceived (not just a paper prepared only for having something to show in court), if it is not discriminatory, etcetera. iv) Even acknowledging that positive obligations could only be fulfilled progressively due to the scarcity of resources among other factors, courts can review if the government is adopting those progressive steps aimed to fulfill its obligations. v) Even rationing decisions or tragic choices are reviewable13: they are not only professional or technical but sometimes ethical; they involve options, and judicial control fosters administrative accountability. “[R]ationing decisions and processes should be based on visible and consistent criteria, should be capable of rational justification and should be subjected to objective scrutiny, so as to ensure that they resonate with values of accountability, equity and fairness.”14 The idea is to “..empower the public and enrich the democratic process by making (…) choices more visible. It would thereby render legislative acting more responsive to public values and less open to special-interest-group influence.”15 Courts may have a role in that process, helping those rationing choices to be explicit and reviewable.16
3) The standards of review. Certainly, we can think of different levels of judicial intervention in public policies and hence, different standards of review. Again, the experience of the CCSA is useful, for it shows that: i) Upon the South African Constitution, the standard of judicial review is reasonableness, though it has been interpreted in different ways: as mere rationality, in a more substantive sense, and
10 This idea can be inferred from Soobramoney, Case CCT 32/97, 1997, sections 11, 19, 24, 28, 30, 31. 11 See Grootboom, CCT 11/00, 2000, section 46. 12 See Sobramoney. 13 See Marius Pieterse, Health Care Rights, Resources and Rationing, 124 SALJ 514, 527 (2007); Gregg Bloche, The Invention of Health, 91 CALIF. L. REV. 247, 302 (2003); Keith Syrett, Deference or Deliberation: Rethinking the Judicial Role in the Allocation of Healthcare Resources, 24 MED LAW 309, 317 (2005); Rhoda James & Diane Longley, Judicial Review and Tragic Choices: Ex Parte B, 1995 PUBLIC LAW 367, 372 (1995); Alan Parkin, Allocating Health Care Resources in an Imperfect World, 58 MOD. L. REV. 867, 868 (1995); Leonard M. Fleck, Models of Rationing: Just Health Care Rationing: a Democratic Decisionmaking Approach, 140 U. PA. L. REV. 1597, 1599 (1992). However, he is not necessarily supporting the judicial review of these issues. 14 Pieterse, supra note 15, at 514-5. 15 Gregg Bloche, The Invention of Health, 91 CALIF. L. REV. 247, 302 (2003). 16 Pieterse, supra note 15, at 536.
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even as proportionality.17 ii) Therefore, there are several standards of review, not just one applicable to all cases; iii) The appropriate standard of review ought to be determined on a case-by-case basis, not in general. I think this experience is valuable for Chile. Certainly, a standard of review must be determined on a case-by-case basis and there could be different standards of review, in theory. The Chilean Constitution mentions a standard of review, which is arbitrariness. However, it is recognized only for the case of the Action for Protection18, one of the multiple constitutional actions instituted by the Chilean Constitution. In civil rights cases, Chilean courts have interpreted arbitrariness as reasonability and also in connection to proportionality. Therefore, we can say that Chilean jurisprudence recognizes reasonability and proportionality. In any case, Chilean courts have not distinguished different meanings or levels of scrutiny for those standards. There is no reason why those standards could not be applied in Chile for cases of ESR. If that happens, it should be the practice of adjudicating on ESR in Chile which will probably show the need and the way of identifying a sliding scale of levels of scrutiny and standards of review.
4) Declarations of the court. Sometimes objectors to the justiciability of ESR elicit this topic: What could courts do if they are neither to make the policy nor to decide on the spending? What could they declare? The jurisprudence of the CCSA shows a variety of declarations that a court could issue: a declaration of rights, an interdict, a mandamus, or any other relief that may be considered necessary to ensure the protection of constitutional rights. The court also added –in TAC- that if necessary, the courts may even have to “...fashion new remedies to secure the protection and enforcement of these all-important rights.”19 I am not prepared to propose the endorsement of that experience for the case of Chile. In a context of skepticism about judicial review of public policies on ESR, as it is the case of Chile, I think that a mere declaration of unconstitutionality is, for the moment, as very relevant aspiration. I have said the courts should control the policy but not make it and should respect sufficient space for political bodies to make political determinations and appreciations, without replacing them and assuming their role. Well, a model of mere declarations of unconstitutionality is clearly compatible with those parameters. A court could (and should) declare unconstitutional any governmental plan if it infringes a constitutional right and such declaration would not be merely symbolic. It may produce a significant political impact on the government, and put it under the political obligation of designing a new policy, in compliance with the Constitution. Advocates of ESR will consider this proposal insufficient, but in a system where the courts have not said this, as it is the case of Chile, to start doing so is a considerable step, and a promising one.
17 See Murray Wesson, Grootboom and Beyond: Reassessing the Socio-Economic Jurisprudence of the South African Constitutional Court, 20 SAJHR 284; Danie Brand, Socio-Economic Rights and Courts in South Africa: Justiciability on a Sliding Scale, in JUSTICIABILITY OF ECONOMIC AND SOCIAL RIGHTS. EXPERIENCES FROM DOMESTIC SYSTEMS 225 (Fons Coomans, ed., Intersentia, 2006). 18 Article 20. 19 CCT 8/02, 2002, Section 102.
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The Chilean Action of Protection allows the judiciary to emit orders to the government.20 However, this constitutional action does not apply directly to any ESR. In order to do that, a given governmental plan must infringe a protected right, like the right not to be discriminated against, or the right to life, among others. If that is the case, then it would be possible to request from the court an order to the government in relation to an ESR, and such a petition would not need any particular justification for it is explicitly indicated in the Constitution.
Conclusion. ESR are enshrined in the Chilean Constitution and judges have a constitutional duty to enforce them. There are some excellent examples we can consider to learn how to do this, like the case of the CCSA. Nevertheless, each country must find its own way and surmount its own specific obstacles, which in Chile seems to be a generalized conception that ESR are not justiciable. A discussion of this topic, considering, for example, the issues of separation of powers, an appropriate margin of deference with the administration, the scarcity of resources and progressive fulfillment of obligations, the levels of scrutiny and declarations the courts could emit and their possible impact in the system, opens the door – I hope- for a promising future for Chile in this regard.
20 See article 20.
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Distributive Justice – Poverty
V.S. Elizabeth National Law School of India University India
The Indian Constitution came into force on 26th January, 1950. It is the product of the Indian National Movement, a struggle against the colonial rule of Britain. During the course of this struggle people from all walks of life participated, bringing their diverse experiences, knowledge, philosophies and values to the movement. It was many of these people who went on to become the members of the Constituent Assembly that drafted this Constitution. We can see a reflection of these diverse interests in every part of the Indian Constitution. Two hundred years of colonial rule had wrought havoc on the economy of the Indian subcontinent leading to the impoverishment of a large section of its population. Even during the course of the Indian National Movement the struggles of the peasants and the working class and therefore the questions of poverty and development had often come to the fore in the discussions of the Indian National Congress. It is thus no surprise that these questions troubled the Constitution Makers and therefore found their way into the Constitution as well. In fact the Supreme Court in its role as interpreters of the Constitution debated on these issues in the matters that came before them.
The percentage of population below the poverty line in India in 1993-94 was 36%. It is said that in 2003-04 it had reduced to around 28%.1 (The last claim has been much disputed by various non-governmental organizations and others.) It is more than one-third the total population and when this is converted into figures it is several millions of people that we are talking about. India, thus, since its independence has had to deal with the issue of poverty – the needs and interests of these millions of Indian citizens had necessarily to be addressed – questions of employment, housing, education, health etc. By the time the British left India in August 1947 the Constituent Assembly was already at work. This was necessarily one of the important issues that they had to grapple with and that might explain the nature and content of the Indian Constitution. The fact that there is the Fundamental Rights Part which encapsulates the political and civil rights of citizens which are justiciable and the Directive Principles of State Policy that are in the form of instructions to the Government that are not and yet have been the reason for the Indian Government’s interventions in the economy in order to bring about a more egalitarian society. In fact it is used to be said that the India followed neither a capitalist nor a socialist model but had a mixed economy.
In this paper I wish to specifically look at those provisions of the Constitution itself and the decisions of the Supreme Court in order to highlight how the Constitution address the issues
1 http://indiabudget.nic.in/es2007-08/chapt2008/chap17.pdf
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relating to poverty and the provisions that have made it possible for the kind of governmental intervention in the economy in India.
As I mentioned earlier Part IV of the Indian Constitution comprises of what is called Directive Principles of State Policy. Dr. B.R. Ambedkar said that “What are called Directive Principles is merely another name for Instrument of Instructions. The only difference is that they are instructions to the Legislature and the Executive.”2 In fact, Art. 37 states that “The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.” The Supreme Court in Air India Statutory Corporation v. United Labour Union elevated them to human rights, describing them as forerunners of the U.N. Convention on Right to Development as an inalienable human right.3 The Supreme Court has further stated in several other decisions that the Directive Principles supplement the Fundamental Rights and that Parliament can amend Fundamental Rights for implementing the Directive Principles.4
Why has the Supreme Court given so much importance to the Directive Principles? How can the Directive Principles be of any use or relevance in addressing the issues relating to poverty? A brief overview of a few of the provisions might answer this question. Art. 38 (2)5 of the Indian Constitution states “The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.” Similarly in Article 39 amongst other things it is stated that “The State shall, in particular, direct its policy towards securing – (a) that the citizens, men and women equally have the right to an adequate means of livelihood; (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;” Article 41 “The State shall, within the limits of its economic capacity and development, make effective provison for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.” In relation to this provision the Supreme Court in Jacob v. Kerala Water Authority6, stated that the Court should so interpret an Act as to advance this article’s purpose.
Right to Life is articulated in Article 21 of the Indian Constitution. It is stated therein that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This might seem to be a pretty straightforward right with little ambiguity and therefore little possibility for any interpretation that could lead to a form of distributive justice. However, the Indian Supreme Court, through various decisions widened the scope of this Right to Life so as to incorporate interpretations that led to inclusions of right to
2 The Essential Writings of B.R. Ambedkar, p. 490 3 AIR 1997 SC 645: (1997) 9 SCC 377: 1997 Lab IC 365 paragraph 38 4 Chandra Bhavan v. State of Mysore, AIR 1970 SC 2042, paragraph 13, State of Kerala v. N.M. Thomas, AIR 1976 SC 496, Lingappa v. State of Maharashtra, AIR 1985 SC 389, Mukesh v. Ste of Madhya Pradesh, AIR 1985 SC 537 5 Inserted by the Constitution (Forty-fourth Amendment) Act, 1978, sec 9 (w.e.f. 20-6-1979) 6 (1991) 1 SCC 28
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livelihood7, “Public Trust” doctrine,8 health,9 housing10 etc. So much so that today after a constitutional amendment Right to Education is a Fundamental Right under Article 21 A.11
It is in the light of this Constitutional Mandate as reflected in the Preamble and the provisions that the Government of India since Independence has been pursuing a planned economy model and implemented programmes that aim to end poverty – like the Twenty point programme12, the National Rural Employment Guarantee Scheme, etc. In 1975, the then Government of India devised the Twenty Point Programme. It was revised in 1985 for the first time and finally a restructured TPP came into force in April 200713. The two objectives of this programme then and now are eradication of poverty and improvement in the quality of the life of the common man.
The fact that the Constitution addresses the question of equality of status and opportunity and provided for guarantees has enabled the Judiciary as well as the Legislature and Executive to address the questions of poverty in India. If that had not happened and it was left to the market to bring it about or to the actions of individuals even the little advancement that has been made towards ending poverty in India would not have been possible. A Libertarian Constitution would not have allowed it.
It is to be kept in mind, of course that the Government being the product of democratic processes is bound to change over a period of time and given the context of globalization and liberalization the Government of India is not always in consonance with the constitutional mandate. However, the people’s movements in India, despite the fact that they have to deal with the Government and business groups have resisted some of the attempts that might have further impoverished them. The movements against the Special Economic Zones14 is an example of this. There has been much criticism of this policy of the government and opposition to it from the farming community as in many instances the Government has acquired fertile cultivable lands, either through playing on the ignorance of the farmers or by using force at heavily discounted prices. Rather than ending poverty these SEZ’s would only aggravate the
7 Narendra Kumar v. State of Haryana, JT (1994) 2 SC 94;(1994) 4 SCC 460 8 M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388 wherein the Supreme Court enunciated the theory that certain common properties such water, rivers, forests etc were held by the Government in trusteeship for the free and unimpeded use of the public since they are of great importance to the people as a whole and that it would be totally unjustified to make them a subject of private ownership. 9 State of Punjab v. Mahinder Singh Chawla, AIR 1997 SC 1225; 1997 6 SCC 294 10 Shantistar v. Narayanan, (1990) 2 SCJ 10 paragraphs 8 and 13 speak of right to housing, though laters in Shankar Gauri v. Union of India, JT (1994) 2 SCC 83 it was held that shelter is not a fundamental right. 11 Inserted by the Constitution (Eighty-sixth Amendment) Act, 2002 12 http://delhiplanning.nic.in/TPP2006.pdf 13 As of now the TPP consists of 20 points and 66 monitorable items like Poverty Eradication, Power to the People, Support of Farmers, Labour Welfare, Food Security, Housing For All, Clean Drinking Water for All, Education for All, Health for All etc. Under Poverty Eradication are basically employment generation schemes. 14 The protest by the people of Nandigram in West Bengal is one example of this. The Government of India in 2000 decided to created the SEZ’s. The basic objective was to enhance foreign investment and promote exports from the country. These would be deemed foreign territory for the purposes of trade operations, duties and tariffs. More than 500 SEZ’s were proposed, as of now about 220 have been created.
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conditions in which many of the small farmers live, adding to the ranks of the poor. Many of the amendments that have already taken place and some that are still on the anvil and a few recent judgments all seem to be going away from the vision that the members of the Constituent Assembly had and the way the Government of India and the Judiciary approached economic issues and poverty till the 1990’s.
Thus even this constitutional protection to the poor seems to have been eroded in the face of the power of the market forces. How then is an egalitarian society to be brought about? One would have thought that Constitutional Safeguards were sufficient in a democracy. In a way it is still valid when one considers the recent electoral results and the Government’s commitment to the eradication of poverty and the economic problems of especially the rural population. Today India is following the capitalist model by and large together with a planned economy. With a such a large part of the population below the poverty line there can be no other way out for India. In fact this is probably the strength of India which is provided for in the Constitution and safeguarded by the Judiciary.
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Ecological Globalization v. Environmental Needs of Future Generations: Need for Constitutionalization of the Doctrine of Inter Generational Equity & Other Fundamental Principles of International Environmental Law
Prof. S.Shanthakumar1 MATS University Law School India
‘Ecological Globalization’ refers to the collective impact that the diverse processes of Globalization have on the health of the planet’s natural systems.2 Due to globalization, goods, money, people, ideas, along with pollution, are traveling around the world at unprecedented speed and scale. The global commons including the atmosphere and the oceans is under severe environmental assault. Globalization of commerce has further internationalized environmental issues, with trade in natural resources like fish and timber soaring.
The large-scale consumerism has brought the mankind at a stage where our needs have gone beyond the means to fulfill them. In our desire to reach the maximum production limit, we have started borrowing from the resources meant for future, which we know very well that we cannot repay. We are using all those resources, which are in fact the future generation’s property. Natural resources are meant not only for the utilization of the present generation but also by the future generation.
Environmental problems are climbing ever higher on the international political agenda, at times preoccupying diplomats almost as much as arms control negotiations did during the cold war. Environmental issues have also become acrimonious in North South relations, with rich and poor countries divided over how to apportion responsibility for reversing the planet’s ecological decline.
Under these circumstances, ‘Distributive Justice’ shall be the guiding principle for protection and equitable sharing of the environment and natural resources of the present and future generations, since everyone is entitled to equal access to clean and healthy environment necessary for living in a humane way. To address these issues, from Stockholm Declaration 1972 till date, lots of discussions have taken place on the need and strategies for the protection of environment at the Global level.
The Stockholm Conference proclaimed that defending and improving the human environment for present and future generations has become an imperative goal for mankind… The Conference called upon governments and peoples to exert common efforts for the preservation and improvement of the human environment, for the benefit of all the people and for their posterity.
1 Director, MATS University Law School, Raipur, India Email: [email protected]; [email protected] 2 Hilary French, “Coping with Ecological Globalization” in Lester R. Brown et. al. State of the World 2000, The World Watch Institute, W.W. Norton & Company, New York, p.185
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The Stockholm Conference triggered legislative and executive actions in many countries. Though conservation of nature is inherent in the culture and customary practices of the common man, legislative activism became vigorous after 1972. This process gained momentum through judicial activism. With responsive judiciary, legislature and executive, the environment is sought to be protected from the evil hands of polluters and destroyers of nature.
Immediately after the Stockholm Declaration there was a growing trend in National Legal Systems to impose constitutional obligations on State and its instrumentalities and on its citizens - to protect and improve the natural environment. For example:
• Article 24 of the Greek Constitution 1975 provides that “the protection of the natural and cultural environment constitutes a duty of the State”.
• Article 24 of the Swiss Constitution adopted on June 6, 1976 provides that “the Federal Legislature shall enact laws concerning the protection of man and his natural environment against burdensome influences…”
• The 1976 Constitution of Portugal (as revised in 1982) contains both a fundamental right and a statement of public policy relating to the environment.
• The Indian Constitution was amended in the year 1976 to include inter alia, Articles 48A and 51A. Article 48A provides that “the state shall endeavour to protect and improve the environment to safeguard the forest and wildlife of the country.” Article 51A (g) provides that it is the fundamental duty of every citizen of India “to protect and improve the natural environment including forest, lakes, rivers and wild life and to have compassion for living creatures.
• The Netherlands amended its Constitution in 1983 to include Article 21, which provides that “it shall be the concern of the authorities to keep the country habitable and to protect and improve the environment.”
• Article 45 of the Spanish Constitution (1987) provides that “everyone has the right to enjoy an environment suitable for the development of the person as well as the duty to preserve it.”
• Article 225 of the Constitution of the Federal Republic of Brazil (1988) declares that “everyone is entitled to an ecologically balanced environment.”
The UN Conferences from Stockholm to Johannesburg proclaimed certain fundamental principles of international environmental law like, Polluter Pays Principle; Precautionary Principle; Sustainable Development; Intergenerational Equity and responsibility; Common but differentiated responsibilities; Rights of individuals, equality of access to procedures and non-
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discrimination in environmental matters, etc. These principles have been proclaimed after a serious intellectual exercise and thorough deliberation by experts and hence there ought not to be any doubt on the utility of these principles.
The doctrine of ‘sustainable development’ as defined in “Our Common Future” is closely associated with the goal of Intergenerational Equity and Distributive Justice. Sustainable development recognizes each generation’s responsibility to be fair to the next generation, by leaving an inheritance of wealth no less than they themselves had inherited. At a minimum, meeting this goal will require emphasizing the sustainable use of natural resources for subsequent generations and avoiding any irreversible environmental damage.
The concept in intergeneration responsibility has been important since the 1972 Stockholm Conference on the human environment. Principle 1 of the Stockholm Declaration proclaims that “man… bears a solemn responsibility to protect and improve the environment for present and future generations.” After being repeated in many different contexts intergeneration responsibility was reaffirmed at the ‘UN Conference on Environment and Development’ held at Rio as a central component of the shift to sustainable development and Principle 3 of the Rio Declaration states that “the right to development must be fulfilled so as to equitably meet development and environmental needs of present and future generations.
Unfortunately, since these principles are treated to be a part of ‘soft law’ they lack binding force. The State practices regarding application of International Law to resolve domestic disputes are not uniform. The National Courts do not normally confer primacy on international law, while resolving disputes. The positive commitment of States parties in an international treaty merely ignite legislative action at home but does not automatically make the treaty an enforceable part of the corpus juris of the State. In most of the States, International Law is used primarily to inform judicial institutions and inspire legislative action, but apart from such deep reverence, remedial action based on principles of International Law is beyond the jurisdiction of judicial authority.
Application of international environmental law principles might bring desired solutions for environmental disputes, but it becomes practically impossible due to the State Practice and approach of National Courts towards International Law.
Though Nation States showed their inclination to green their Constitutions, in reality, only a half-hearted exercise has been done, merely by amending their Constitutions to include few vague provisions. Instead, each Nation should amend its Constitution to include a chapter on environmental protection, prevention of pollution and conservation of natural resources. Through this chapter, the Constitution should adopt all the principles of International Environmental Law expressly and also declare that “all persons have the right to freedom from pollution, environmental degradation and activities that adversely affect the environment,
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threaten life, health, livelihood, well being or sustainable development within, across or outside national boundaries.”3
There should be a “shift from environmental law to the right to a healthy and a decent environment” so that it is capable of immediate implementation by the Human Rights Bodies. The Constitutions should expressly declare that “all persons have the right to a secure, healthy and ecologically sound environment. This right and other human rights including civil, cultural, economic, political and social rights are universal, interdependent and indivisible.”4
The specific adoption of the fundamental principles of International Environmental Law and an express declaration of the fundamental right to live in a clean and healthy environment in the Constitution of the Country will make these ‘principles’ and the ‘right’ a part of the corpus juris of the Country and capable of immediate implementation.
Since the Constitution enjoys the status of ‘Supreme Law’ of the land, greening of the Constitution by incorporation of the right of persons to live in a clean and healthy environment and the fundamental principles of international environmental law like the doctrine of sustainable development, doctrine of inter generational equity, etc. will be the panacea for all environmental problems and will ensure distributive justice.
3 Based on Draft Principle 5 of the Report on “Human Rights and the Environment” (1994) by the UN Sub- Commission on Prevention of Discrimination and Protection of Minorities 4 Based on Draft Principle 2, ibid.
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Plenary VI
Contemporary Challenges to Executive Power
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Contemporary Challenges to Executive Power – Relationship between Executive and Other Branches of Government
So who said the courts do not make law?
Prof Chris Gale University of Bradford United Kingdom [email protected]
Introduction
In the United Kingdom, with its ‘unwritten’ constitution, there is little doubt that an Executive which dominates the House of Commons (as we have had for large parts of these last thirty years) will usually get its legislative way. However vocal, the opposition can be of little effect. In the early-1990s, members of the judiciary1wondered whether, in the absence of effective political opposition, the judiciary should seek to fill the void. This paper examines just four of the many cases in which the judiciary, possibly emboldened by the Human Rights Act 1998, have challenged executive power in recent years. No comment is made as to whether this is a good or bad thing, but an Executive which knows it may be challenged, assuming it believes ultimately in the rule of law, may be a more careful Executive, both in terms of the legislation it brings before Parliament and in terms of how it executes the powers it is given.
Human Rights Act 1998
As is well rehearsed, in the UK we do not have a codified constitution that stands superior to all other forms of law. The European Convention on Human Rights was negotiated after the devastating effects of WW2 and the build up to it in the 1930s. Although the UK signed up to this treaty in 1951, thus binding the nation, the process of making treaties part of domestic law in the UK requires an Act of Parliament ....and this was not forthcoming until 1998. The Human Rights Act 1998 HRA) came into force on 2 October 2000.
The rights afforded under the Convention are called Articles, and are listed from 2-18, and the majority of these have been incorporated into HRA. Since 1966 UK citizens have had the right to petition the European Court of Human Rights (based in Strasbourg) but only after 2000 could ‘convention rights’ be litigated domestically.
The provisions of the Act tell the courts ‘so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’ (s 3(1)) and that ‘if the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of incompatibility’ (s 4(2)). Such a declaration does not render the offending legislation invalid (s4 (6)), but remedial action may be taken by Parliament under s10 (as if a supreme Parliament could not do so in any event!). Thus the theory of Parliamentary supremacy is maintained while, at the same time, potentially
1 Lords Justice Sedley and Laws, now two of the most senior Court of Appeal judges, being some of the most vocal
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giving senior judges, some of whom have never been against the idea of bending the existing law so far that they are in fact ‘law makers’2, a statutory justification for what they have long been doing.
Tweaking the Executive nose.....
How have the courts taken to the new power given to them under s3 HRA? A leading statement of principle came from the then senior Law Lord3, Lord Bingham, in Sheldrake v DPP4, deriving itself from comments made in the case of Ghaidan v Godin-Mendoza5 where he opined that:
• The interpretative obligation under s 3 is very strong and far reaching and may require the judge to depart from the legislative intention of Parliament • Convention-compliant interpretation under section 3 is the primary remedial measure and a declaration of incompatibility is an exception • Parliament envisaged (when passing HRA) that the need for a declaration of incompatibility would arise, if only rarely • There is a limit beyond which Convention-compliant interpretation is not possible. This may be because the interpretation would not be compatible with the underlying thrust of the legislation, would not go with the grain of it, would call for legislative deliberation, would change the substance of a statutory provision completely, would remove its pith and substance, or would violate a cardinal principle of the legislation.
Shortly after HRA came into force, the case of R v A (No 2)6came before the Law Lords. This was, of course, some time before the Sheldrake case mentioned above. S41 (1) Youth Justice and Criminal Evidence Act 1999 prohibited, in rape cases, evidence of the alleged victim’s previous sexual experiences without the court’s consent, which could only be given in specified circumstances. It was held that the court could construe the Act so as to permit evidence necessary to make the trial a fair trial as that was the object of the Act. Thus additional provisions ‘subject to the right to a fair trial’ could be imported and read into the 1999 Act even where the words of the statute was unambiguous, going beyond the limits of normal statutory interpretation even if this strained the usual meaning. This goes rather beyond what is likely now following Sheldrake – but it does perhaps indicate what some judges would be prepared to do, especially if they believe a ‘declaration of incompatibility’ is not likely to be acted on by the Executive.
2 As, for instance, much of the development of the law of negligence in Donoghue v Stevenson [1932] AC 562 and in the 77 years afterwards 3 The ‘Law Lords’ being the Judicial Committee of the House of Lords –the senior UK appellate tribunal which will metamorphose on 1 October 2009 into ‘The Supreme Court’ 4 (2004) UKHL 42 5 (2004) UKHL 30 6 [2001]3 All ER 1
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If this may be considered to be more ‘tweaking Parliament’s nose’ than that of the Executive truly, it needs to be remembered that a dominant Executive (Tony Blair’s first administration, elected in 1997, with a majority of over 100 in the House of Commons) had proposed, sponsored and guided through Parliament both HRA and CJYPA. Although this may have been the ‘high water mark’ of judicial law making under HRA, though the more tempered vision spoken by Lord Bingham still allows room for judicial manoeuvre.
Let us turn to examples of pure ‘executive nose tweaking. In Secretary of State for the Home Department v AF, AN and AE7,it was held by the House of Lords that where, in the interests of national security, the Secretary of State relied on ‘closed material’8in a hearing under s3(10) Prevention of Terrorism Act 2005 to justify his decision to make a control order9, Art 6 (1) ECHR10 would not be satisfied unless the controlee were given sufficient information on the case against him to enable him to give effective instructions to the state approved lawyer appointed to represent him. This was very much what the Secretary of State did NOT want, arguing that giving any such information would jeopardise national security but the courts asserting that Art 6 rights trumped this to a point in any event.
In R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (4)11, the court ruled on a novel issue, that is the striking of a balance between the public interest in national security and the public interest in open justice, the rule of law and democratic accountability, which lay at the heart of the court’s consideration of whether to restore passages, summarising information relating to an arguable case of torture and cruel, inhuman or degrading treatment (contrary to Art 3 ECHR) of the claimant, which had been redacted from the original judgment at the request of the Foreign Secretary (allegedly at the request of the US government) in the interests of national security. The rule of law required that the determination of where the balance lay was ultimately for the decision of the court. Although the redaction was maintained in this case, the court’s assertion that it was for it to decide , rather than the Executive in the person of the Foreign Secretary, did not sit well with either the Executive or its allies.
The decision to abandon a prosecution because of the victim’s mental instability involved a misapplication by the Executive, in the person of the Director of Public Prosecutions, of its own Code for Crown Prosecutors, was irrational and a violation of the victims Art 3 ECHR rights, according to the High Court in R (B) v DPP [2009] EWHC (Admin). This reflects the wider definition of ‘executive’ but given the ‘State’ role the DPP plays and the interest of the narrower government based Executive in seeing its appointee praised rather than ridiculed in the courts, it again shows judicial independence and lack of fear for careers or lives –something
7 [2009]HL 28 8 That is, material not disclosed to the defendant 9 That is, an order effectively putting a person under ‘house arrest’ 10 The right to a fair trial 11 [2009] EWHC 152 (Admin)
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UK judges accept they are fortunate in, as that lack of fear allows them to assert their independence to the border of what some would call arrogance or at least, lack of deference.
Conclusion
So, from the above, what conclusions can be drawn about the relationship of the Executive with other branches of Government? First, with a large majority in the House of Commons, the Executive is only rarely truly distinguishable from the legislature if only because of the former’s dominance of the latter.
When it comes to relationships with the judiciary, then security (of tenure and otherwise) enables an independence of mind not possible if there were not this security or indeed if the Executive did not have some deep down reverence for the rule of law. The judiciary do not really see themselves as filling the role of an impotent political opposition and some recent judgments have argued heavily against what can be seen as ‘judicial law making’, but there is little doubt that judges do make law and are very prepared to do so in certain circumstances – some judges more than others. In the same way as judges expect politicians to have some respect, ultimately, for the rule of law, those same judges accept that they must also respect that Parliament is there to make law, not them – even if it is an Executive dominated Parliament. This does not mean that there is no room for reasonably aggressive interpretation from time to time and if this involves upsetting the Executive, then so be it!
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The Executive and The Courts
Richard Clayton QC, Barrister Associate Fellow, Centre for Public Law University of Cambridge United Kingdom
1. The relationship between the executive and the courts in English law is not regulated by any formal constitutional framework, but has evolved as a result of history and convention. The enactment of the Human Rights Act in 1998 therefore resulted in a significant constitutional shift- by enacting the European Convention of Human Rights into English law, the courts have acquired a wider supervisory jurisdiction over executive decision making which it is vital to consider.
2. In this paper I propose to focus on two principal issues: • the extent to which executive decisions is regulated by law; and • the degree to which the Court scrutinises executive decision making when reviewing the merits of particular decisions.
The regulation of executive decision making
3. It is important when considering the extent to which executive decisions are subject to the Courts to differentiate the source of power a public body is potentially exercising.
4. The paradigm case of public law decision making in England is that created by statute. Obviously, both central and local government decision makers have statutory powers and duties and these decisions will invariably be subject to review. In particular, local authorities are statutory bodies and therefore cannot make any decisions which are outside the scope of those statutory powers. I shall briefly look at the ultra vires principle and at some important cases where the Court has held that the local authority had no power to act.
5. Central government exercises statutory powers, powers which derive from the Crown’s prerogative and other common law powers. The need for central government to exercise non statutory powers means that there are some areas of decision making that are not subject to any form of legal control. The extent to which the Courts can review the prerogative has been a controversial topic and I shall examine the difficulties which have arisen in this area including, for example, the problems which arise to foreign policy and defence such as the challenge to the legality of the Iraq war. It also appears that the Crown has certain additional common law powers; and recent cases indicate some uncertainty about whether these powers are open to challenge on general public law grounds.
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6. Furthermore, the Human Rights Act has resulted in a sea change; and requires that public bodies justify interferences with certain human rights on the ground that they are in accordance with law. I shall examine the implications of these principles by looking at recent cases on telephone tapping, stop and search powers under terrorist powers and the House of Lords case decided on 30 July 2009 on the liability of a husband to be prosecuted for assisting suicides of his wife who is an MS sufferer.
Challenging the merits of executive decisions on judicial review grounds
7. In order to work out the proper approach to a merits challenge in an administrative law case, it is necessary to identify a governing principle; and in England we take the view that the principle of separation of powers justifies the courts taking a stand off approach to executive decision making.
8. However, I shall argue that the principle of separation of powers is not well developed in English law; and that, in any event, it has little application to executive decision making as opposed to legislative policy choices.
9. The fundamental administrative law principle in English law is to ask the very high threshold question of the executive has lost leave of his or her senses. The analysis has become more sophisticated in recent years by developing a context based sliding scale which I will also examine.
10. Nevertheless, there are obvious and real problems about applying such a strict rationality principle and I shall trace the criticisms of it and the failure to date to replace the principle in general administrative law with a more structured and sophisticated proportionality test.
11. The Human Rights Act has again had implications for the merits review of executive decision making as well- because it mandates a more intrusive hard look at executive decisions. I shall examine the ways the courts have developed a doctrine of judicial deference under the Human Rights Act when applying the Act; and the value of differentiating in this context between the institutional competence of the court to decide certain issues and its constitutional competence to do so.
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Signing Statements and the Independent Power of the Executive to Interpret Constitutional Law
Julian Ku* Hofstra University United States
My construction of the Constitution is . . . that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal.1
Although the system of judicial review of constitutional interpretations is perhaps the most important U.S. contribution to constitutional developments around the world, the idea of an independent and inherent presidential power to interpret the United States Constitution also has a long pedigree. Not only did Thomas Jefferson assert this presidential prerogative, but presidents throughout U.S. history have at times asserted their independent power to interpret the Constitution in the face of contrary interpretations adopted by the other two branches of the federal government.
Aspects of this presidentialist view manifest themselves today in the increasingly controversial practice of presidential signing statements asserting the authority to refuse to execute laws that, in the President’s own judgment, are unconstitutional. The contemporary debate over signing statements of this type, extending through the Bush Administration and into the new Obama Administration, suggests that an executive power to independently interpret constitutional law remains a contested and important question.
As a matter of constitutional text and the original understanding of the U.S. Constitution, this position is perfectly defensible. Nothing in the Constitution’s text explicitly grants to any branch of the federal government the power of constitutional interpretation, nor does any provision explicitly make one branch the supreme arbiter of the Constitution’s meaning. Members of all three branches, for instance, are required to take the same oath swearing to uphold the Constitution but nothing in these provisions indicates that one branch has a special authority or obligation. The President also is obliged to “Take Care” that all the laws are faithfully executed, while the Supreme Court and federal courts are granted the “judicial power” without any explication of the nature of this power.
Indeed, it is this lack of explicit textual authority for judicial review of constitutional questions that makes Chief Justice John Marshall’s opinion in Marbury v. Madison2 such a remarkable
* Professor of Law and Associate Dean for Faculty Development, Hofstra University School of Law 1 Thomas Jefferson to Spencer Roane, 1819. ME 15:214 2 5 U.S. (Cranch 1) 137 (1803)
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achievement. Lacking both political support and textual authority, Marshall nonetheless laid the foundations for judicial review of constitutional questions, an idea that would in time become an enormously influential and powerful global trend. Although there is historical support for judicial review of constitutional questions, the idea was hardly uncontroversial, and indeed, remains somewhat controversial among modern constitutional scholars.
Yet even after Marbury, U.S. presidents continued to assert their independent right to interpret the Constitution. Although they generally agreed to be bound by the Court’s interpretation in any case to which it was a party, presidents continued to argue that they had the authority to adopt different interpretations from the Court in other circumstances. As President Andrew Jackson famously asserted in his veto message of the Charter for the Second Bank of the United States,
The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.3
The Court has never explicitly rejected this position, although it came closest to doing so in the 1958 decision of Cooper v. Aaron, when it asserted the Court’s supreme authority over constitutional interpretations vis a vis state governments. Citing Article VI of the U.S. Constitution, which makes the Constitution supreme over state law, and Marbury, the Court declared that the principle that “the federal judiciary is supreme in the exposition of the law of the Constitution,[] has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”4
Cooper’s confident declaration of judicial supremacy has been criticized by scholars as an overstatement of the consensus on this principle. Presidential administrations, for instance, have never fully acquiesced in the idea of judicial supremacy, at least vis-à-vis the executive branch. The most recent manifestation of presidential resistance to judicial supremacy can be found in the presidential assertions of the power to refuse to execute laws that, in the president’s own judgment, are unconstitutional. Such assertions have been commonly made in the context of statements attached to presidential signatures of new legislation.
For example, President Obama recently attached the following “signing statement” to legislation objecting to provisions that directed his officers to advocate for certain views when participating in the governance of international financial institutions.
[Such provisions] would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring
3 Andrew Jackson, Veto Message Regarding the Second Bank of the United States, 1832. 4 Cooper v. Aaron, 358 U.S. 1, 18 (1958).
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consultation with the Congress prior to such negotiations or discussions. I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations.5
Like presidents before him, President Obama is asserting a right to simply refuse to follow statutes that he believes are unconstitutional. Although the provisions in the bill in question plainly required the Secretary of the Treasury to adopt certain positions during activities at the International Monetary Fund, President Obama simply declared that he would treat those provisions as nonbinding due to their interference in his inherent constitutional authority. He did so without relying on any Supreme Court precedent for his views.
Such signing statements, especially those attached by President George W. Bush during his presidency, drew substantial criticism (including from then-candidate Obama). For instance, the American Bar Association adopted a report in 2006 sharply criticizing the use of such statements, especially by President Bush on questions of constitutional interpretation.6 The New York Times similarly criticized President Obama’s statements, especially those that asserted the independent presidential power to interpret the Constitution. If he wants to assert such a power, the paper editorialized, “then he should be able to point to court decisions or he should find a way to get the issue into court so the judiciary can make a call.”7 Indeed, House of Representatives has demonstrated its displeasure with President Obama by voting by an overwhelming margin to take away funding for areas over which the President asserted his independent constitutional authority.8
Although judicial review of constitutional questions remains the most famous American constitutional innovation, contemporary assertions of an independent presidential power to interpret the Constitution demonstrate that the Jefferson-Jackson tradition lives on today in both Democratic and Republican administrations.
5 Statement on Signing the Supplemental Appropriations Act of 2009, June 24, 2009. 6 Task Force on Presidential Signing Statements and Separation of Powers, Recommendations, August 2006. 7 “On Signing Statements,” The New York Times, March 17, 2009. 8 Walter Alarkson, “House Overwhelmingly Reject Signing Statements,” The Hill, July 9, 2009.
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Contemporary Challenges and the Strengthening of Executive Power: An Australian Case Study
Andrew Lynch Director, Gilbert + Tobin Centre of Public Law Associate Professor, Faculty of Law, University of New South Wales Australia [email protected]
One of the particularly manifest features of globalisation, indeed perhaps the most apparent evidence of our increasingly ‘globalised’ existence, is that the major issues facing today’s national governments are rarely confined to their own borders. Be the challenge one of security (terrorism); health (the recent ‘swine flu’ pandemic); finance (the ‘Global Financial Crisis’) or environmental (the threat of climate change), it is clear that domestic responses cannot be devised or implemented without regard for developments elsewhere.
This interconnectedness has two immediately recognisable, and yet, at first glance, seemingly contradictory consequences. First, it obviously supports, if not actively requires, the growing internationalisation of governance strategies and the increased participation of governments in multi-country deliberations and decision-making. This may be through traditional structures such as the United Nations or the European Union or rather more recent and somewhat looser arrangements such as the G-20. However, it would seem a mistake to view the trend for attempting consensus amongst the international community in response to shared problems as a threat to the autonomy and strength of executive power in nation states. For the second effect of the global nature of key contemporary challenges is that in inevitably demanding greater leadership from the executive arm of government, they assist it to further secure what is already a strong platform for its dominance in the domestic context.1 This is especially so when the problem is cloaked in urgency – as all those identified above have been to some degree. It seems fair to surmise that the executive’s long-recognised capacity to react swiftly to emergencies2 and the necessity that it represents the national interest in relations with other countries ensures that the more we internationalise both problems and their solution, the greater the power which the executive arm will enjoy at home. This is sure to be particularly acute in countries where power is shared federally. In those places, the globalisation of challenges must operate to enhance the position of the national executive not simply relative to the other arms of government, but also as against the authority of the states. Even when state or provincial co-operation is sought in order to advance a solution, it should hardly surprise us that internationalisation has a basically centralising effect on constitutional systems of this ilk.
1 I would agree with Kumm’s assessment that, even leaving international developments aside, ‘parliament as the traditional legislative forum has lost significant ground in the twentieth century’: Mattias Kumm, ‘Democratic constitutionalism encounters international law: terms of engagement’ in Sujit Choudry (ed), The Migration of Constitutional Ideas (2006) 256, 269. 2 Clinton L Rossiter, Constitutional Dictatorship (1948) 12.
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The Commonwealth of Australia provides a worthwhile, though perhaps somewhat extreme, case study of these trends. Situated as it is within a Westminster system defined by the doctrine of responsible government and not subject to even the modest limitations imposed by a statutory Human Rights Act, such as that of the United Kingdom or New Zealand, Australia’s national government is rarely subject to serious challenge over the use of its powers. In addition to the lack of a human rights instrument, the relatively unconstrained nature of Commonwealth power is a product of a steady course of constitutional interpretation which has favoured the national government at the expense of the States, despite the intention of the Constitution’s framers to avoid this very result. In this context, the existence of several global policy challenges serves to further intensify the concentration of power in the national executive in Australia’s federal system.
In Australia, urgent and shared regional or global problems have tended to bolster the executive by creating both the case, and frequently an accompanying mechanism, for action which the domestic legislature and the judiciary find difficult to challenge. Use of blocking tactics by the opposition parties in the legislature understandably are made more difficult when the imperative for the executive’s course comes from a substantial and respected quarter of the international community (perhaps reflecting something about Australia’s status as a mid- sized power). Somewhat different considerations, but a rather similar effect, underpin judicial deference to political judgments about the best way forward in a crisis and constitutional constraints are unlikely to be applied with great strictness to government efforts to quell or contain harm to the community. In federal systems, a clear absence of power in the national government to achieve its desired response may need to be overcome through use of intergovernmental agreements with the states – but this often has the effect merely of distancing the action of both executives from, not one, but two forums of legislative scrutiny and accountability.
Undoubtedly the easiest area in which examples are offered of this phenomenon is in responses to the threat of terrorism. Anti-terrorism laws were largely unknown in Australia prior to 9/11, although politically motivated violence was not. But in the last decade the Commonwealth Parliament has, at the behest of the executive, enacted over 45 new laws directed at domestic security from terrorism. There are a number of striking features to this experience. First, the lack of a successful domestic attack did not staunch the hyperactivity of the government in insisting on new laws – indeed incidents overseas frequently provided the impetus for further significant measures.3 In part, this reflected the Australian government’s embrace of the rhetoric of a global ‘war on terror’. Second, doubts about the Commonwealth’s power to enact domestic criminal laws and other special measures addressing political violence were overcome by the Commonwealth and State executives reaching agreement over the
3 Anthony Reilly, ‘The Processes and Consequences of Counter-Terrorism Law Reform in Australia 2001- 2005’ (2007) 10 Flinders Journal of Law Reform 81.
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referral of the legislative capacities of the latter.4 Additionally, State and Territory governments were requested to enact laws which carried on from the operation of Commonwealth ones where some immovable constitutional obstacles could not otherwise be overcome (eg. to extend the period of preventative detention). In this way the Commonwealth government set the agenda at all levels of the federation. Third, at its worst the creation of anti-terrorism laws followed a particularly executive-driven process: new counter-terrorism initiatives tended to be announced by the Commonwealth executive, before tabling at the Council of Australian Governments (COAG) for the support (rarely withheld) of the State and Territory governments, and only then would the federal government introduce its bill, using its numbers in the Parliament to foreclose meaningful debate and rush enactment.5 Fourth, the impact of parliamentary committees and independent inquiries, even when commissioned by the government itself as a legislative tactic, was largely negligible in impacting upon the content of the laws. In short, while the creation of a substantial legislative framework was a central pillar of the Commonwealth response to the terrorism threat,6 the executive surrendered very little control over its agenda to other actors – either the Parliament or the administrations of the States and Territories.
The same challenge elicited a notable deference from the Australian judiciary – not just to the powers claimed by the Commonwealth to fight terrorism at home and abroad, but also to the rather novel roles cast upon the courts themselves as part of this endeavour. On the first score, the fear that the Commonwealth lacked constitutional power alone to criminalise terrorism and so required the co-operation of the States was confirmed by the High Court as misplaced. The Court took an expansive reading of the Commonwealth Constitution’s power with respect to ‘naval and military defence’ which, in departing from earlier more limited precedents, gives the Commonwealth a remarkably free hand in responding to civil disturbances.7 Additionally, the government has increasingly obliged the judiciary to perform a variety of new functions and responsibilities in the area of national security. For example, courts are required to prioritise, over the right of an accused to a fair trial, the opinion of a member of the executive that certain evidence has the capacity to prejudice national security and should be used only subject to
4 Although the State governments attempted to retain a degree of control over the Commonwealth’s use of these ceded powers by requiring that the approval of a majority of their number support any fresh amendments, members of the High Court have, unsurprisingly, viewed that political arrangement as a legal irrelevancy so far as it purports to fetter the legislative powers of the Commonwealth. 5 As an example, see Greg Carne, ‘Prevent, Detain, Control and Order?: Legislative Process and Executive Outcomes in Enacting the Anti-Terrorism Act (No 2) 2005 (Cth) (2007) 10 FJLR 17, 26-32; 43-64 6 The reliance on law ‘as an instrument of counter-terrorism’ is, of course, not insignificant: Victor V Ramraj, ‘No doctrine more pernicious? Emergencies and the limits of legality’ in Emergencies and the Limits of Legality (2008) 3. The decision to tackle a problem through legislation indicates a willingness on behalf of any government to subject itself to even just a measure more scrutiny and control than it might otherwise suffer. 7 Thomas v Mowbray (2007) 233 CLR 307. The decision not only affirms the validity of much of the Commonwealth’s anti-terrorism legislation but also the related but nevertheless distinct laws introduced since 2000 for military call-outs in peacetime to address ‘domestic violence’: Michael Head, Calling out the Troops – The Australian Military and Civil Unrest (2009), 14-15.
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restrictions.8 Another example is the use of courts to issue preventative orders restricting the liberty of terrorism suspects not charged with any crime and based on intelligence only.9 Constitutional challenges to both these developments have been rejected by the courts,10 undoubtedly reflecting the narrow options for judicial review in Australia generally but also, I suspect, indicating the unwillingness of the judiciary to interfere with the government-led strategy for public security.
It is tempting to think that such judicial deference is merely the traditional reception which national security issues meet in the courts, or that such an approach manifests a soberly appropriate attitude to the role of the administrative state in challenging times.11 However, indulgence of the executive by the Australian judiciary has been readily apparent in several other areas also. Most notably, the Federal Court of Australia upheld drastic steps taken by the government of the day to intercept and commandeer a foreign shipping vessel bringing to Australia asylum-seekers that it had rescued from the ocean.12 The decision was seen as surprising in two respects. First, the Commonwealth’s power to do so was determined by the appeal judges as derived not simply from the inherited prerogative powers of the English Crown but arising inherently from the Constitution’s recognition of executive power. This suggested the possibility, arguably confirmed by the facts of the case itself, for rather broader executive powers than previously attributed to the government. Second, the existence of comprehensive legislation detailing the immigration law of Australia was not seen to have supplanted the executive’s independent constitutional authority to act. As Winterton, in criticising the decision, made clear: the latter result on the extent of legislative control was not unrelated to the Court’s decision on the source of the executive’s authority.13
Moving away from security of borders or the public, the High Court has continued to accord great latitude to the Commonwealth executive in financial matters. There is quite a tradition of this given the Court’s acquiescence from the time of World War II in allowing the Commonwealth to use financial grants so as to render the States compliant to its will14 – or even to use the States as a mere conduit in distributing monies to non-government actors as part of some policy which would be otherwise constitutionally problematic for the national government to achieve. But even against that history, the decision in Combet v Commonwealth drew consternation. The Court, 5:2, upheld expenditure by the government of $22 million on political advertising without requiring that this be demonstrably connected to a purpose stated, even at the broadest level, in the legislation making the appropriation from Consolidated
8 National Security Information Act 2004 (Cth), s 22. 9 Criminal Code 1995 (Cth), Divs 104 and 105. 10 Respectively, Lodhi v R [2007] NSWCCA 360; Thomas v Mowbray (2007) 233 CLR 307. 11 David Dyzenhaus & Rayner Thwaites ‘Legality and Emergency – The Judiciary in a Time of Terror’ in Andrew Lynch, Edwina MacDonald & George Williams, Law and Liberty in the War on Terror (2007) 9, 24. 12 Ruddock v Vadarlis (2001) 110 FCR 491. 13 George Winterton, ‘The Relationship between Commonwealth Legislative and Executive Power’ (2004) 25 Adelaide Law Review 21, 37. 14 South Australia v Commonwealth (First Uniform Tax Case) (1942) 65 CLR 373.
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Revenue.15 The scope of the constitutional expression ‘purposes of the Commonwealth’ as a possible limitation on the use of public monies by the executive has since received further attention from the Court. Just this year, the government’s plan to stimulate the national economy in response to the GFC by distributing $42 million in cheques to households was challenged as an unconstitutional appropriation. The government publicly stressed the necessity for the cash injection via consumers if the effects of the global recession were to be averted or cushioned, and continued printing the cheques as the matter was brought forward. A majority of the Court declared its finding in favour of the Commonwealth but at the time of writing, reasons have not been released.
Lest I paint a rather too distorted picture, it is necessary to add a qualification to the central argument pursued here that contemporary challenges have tended to promote executive power over other forms. In some areas, notably the determination of refugee applications, attempts by the Commonwealth government to restrict judicial review through use of privative clauses were fiercely rejected by the Australian judiciary, albeit with only limited success.16 Additionally, Australia is further protected from a truly rampant and unaccountable executive by the quality of its sub-constitutional checks, such as the Commonwealth Ombudsman and other statutory office-holders of the administrative state.
But when focused on the three arms of government themselves, the overwhelming experience of recent times in Australia has been one of executive strength – conducted through, rather than contained by, our system of parliamentary governance and rarely meeting judicial resistance.
15 (2005) 224 CLR 494. 16 See Mary Crock, ‘Judging Refugees: The Clash of Power and Institutions in the Development of Australian Refugee Law’ (2004) 26 Sydney Law Review 51.
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Judicial Activism Reins in Executive Power: The Philippine Experience
Prof. Gloria Estenzo Ramos University of Cebu College of Law Philippines Email: [email protected]
INTRODUCTION
The Philippines was under American Rule beginning 1898, when it was ceded by the Spanish colonial masters in 1898 through the Treaty of Paris, until July 4, 1946 when the Philippines obtained its full independence. The influence of the American government system is palpable, with the presidency largely patterned after that of the United States. The Presidency is the most sought-after elective position in the Philippines, and the President, undoubtedly, the most influential figure in the political landscape. As then Associate Justice of the Supreme Court, now Chief Justice Reynato Puno, pointed out in his Dissenting Opinion, in the case of Secretary of Justice v. Lantion (2000),
“Beyond debate, the President is the single most powerful official in our land for Section 1 of Article VII provides that "the executive power shall be vested in the President of the Philippines," whereas Section 1 of Article VI states that "the legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives . . . except to the extent reserved to the people by the provision on initiative and referendum," while Section 1 of Article VIII provides that "judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law." Thus, we can see that executive power is vested in the President alone whereas legislative and judicial powers are shared and scattered.”
Executive power is vested in the President.1 While executive power has no precise definition in the Constitution, the exercise of powers by the President is enumerated therein. These include the power of control over all executive departments, bureaus and offices, supervisory power over the local government units, power to execute the laws, appointing powers, attendant power as the commander-in-chief of the armed forces of the Philippines, the power to grant reprieves, commutations and pardons, the power to grant amnesty with the concurrence of Congress, the power to contract or guarantee loans, the power to enter into treaties or international conventions, the power to submit the budget to Congress, and the power to address Congress. Executive power was held to be more than the specific powers so enumerated. The President has unstated residual powers which are implied from the grant of the executive power and which are necessary to comply with the duties as President ( Marcos v. Manglapus, 1989).
1 Article VII, section 1, 1987 Constitution
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Among the ten presidents of the Republic, the much-admired President Corazon Aquino was instrumental in restoring democracy and the Rule of Law which were lost during the dictatorship of Ferdinand E. Marcos. While the 1935 Constitution, like the present Constitution, provided for a separation of powers among the executive, legislative and judicial branches of government, “it created a strong President with explicitly broad powers than the President of the United States” (Marcos v. Manglapus, 1989). By issuing Proclamation No. 1081 declaring Martial Law, President Marcos paved the way for the onset of the darkest era in the tradition of constitutionalism in the country. His martial law authority allowed the exercise of both executive and legislative powers in one person. Although judicial power was vested in the Supreme Court, just like other institutions then operating, it was considerably weakened when the justices generally treated the issues related to acts of the deposed dictator as “political questions” and thus, beyond the power of judicial review.
POLITICAL AND JUSTICIABLE QUESTIONS
''Political questions" are one class of cases where the Supreme Court hesitates to rule on. These refer to issues which concern not the legality, but the wisdom and discretionary powers of a particular act or measure of the political departments and the sovereign act of the people. “The political question being a function of the separation of powers, the courts will not normally interfere with the workings of another co-equal branch, unless the case shows a clear need for the courts to step in to uphold the law and the Constitution” (Integrated Bar of the Philippines, v. Zamora, 2000). Absent any clear showing of grave abuse of discretion on the part of respondent government agency, the Supreme Court refuses to take cognizance of matters which are within the aforesaid powers of the executive and legislative branches.
In Casibang v. Aquino, the Court stated that a “purely justiciable question implies a given right, legally demandable and enforceable, an act or omission violative of such right, and a remedy granted and sanctioned by law, for said breach of right.” “Where the vortex of the controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or non- political.” 2
SEPARATION OF POWERS
The 1987 Constitution restored the principle of separation of powers where executive, legislative and judicial departments act within the limits and confines of their office. “The doctrine of separation of powers imposes upon the courts a proper restraint, born of the nature of their functions and of their respect for the other departments, in striking down the acts of the legislative and the executive as unconstitutional. The policy, indeed, is a blend of courtesy and caution... The theory is that before the act was done or the law was enacted,
2 Sanidad v. Commission on Elections (1976)
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earnest studies were made by Congress or the President, or both, to insure that the Constitution would not be breached.”3
CONSTITUTIONAL LIMITATIONS ON THE EXERCISE OF EXECUTIVE POWER
Because the Martial Law experience considerably weakened the institutions essential to a vibrant and functioning democracy, including the judiciary, the 1987 Constitution “curtailed” the vast powers of the President, as a response to the abuses during the reign of President Marcos. It subjected certain specific powers of the President to the concurrence of Congress, such as the power to declare martial law and suspend the privilege of the writ of habeas corpus. In addition to the three independent constitutional commissions,4 the office of the Ombudsman and a Commission on Human Rights were created to check on abuse of position and trust in the branches, agencies and instrumentalities of the State.
Equally as important and learning the lessons from the dark past of the Martial Law years, the framers of the Constitution deemed it necessary for the Supreme Court, as the last bastion of democracy, and to strengthen its power to say what the law is, to possess the expanded power of judicial review5 as well its rule-making power.6 These constitutionally mandated powers have made it possible for the Supreme Court of the Philippines to assume the role of an activist court and a pro-active player in policy-making process.
SUPREME COURT: AN ACTIVIST COURT AND PRO-ACTIVE POLICY MAKER
The 1987 Constitution widened the scope of judicial inquiry into areas normally left to the political departments to decide. The Supreme Court is given not only a right but “the duty to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”7 Grave abuse of discretion implies “capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of law.”8 The constitutional
3 Association Of Small Landowners In The Philippines, Inc. v. Secretary of Agrarian Reform (1989) 4 Civil Service Commission, Commission on Audit and Commission on Elections 5 “The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” (Article VIII, Section 1, Constitution)
6 “ Promulgate the rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts…” (Section 5, (5) Constitution) 7 Article VIII, Section 1, Constitution 8 BAYAN v. Executive Secretary Ronaldo Zamora (2000)
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mandate that the Supreme Court settle only actual cases or controversies makes the requirement of proving standing, or locus standi on the part of the petitioners inevitable.9The Court may relax the rule on standing in the event of transcendental significance of the issues raised.
The Supreme Court is now a key institution that ensures the performance by the President’s alter egos, the department heads, of their respective mandate. The most recent illustrative case is MMDA vs. Manila Bay Residents (December, 2009). In the said Ruling, petitioner executive agencies were required to restore the ecological health of the polluted Manila Bay and submit to the Court a quarterly progress report by unsheathing, for the first time, the legal remedy of “continuing mandamus.”
Chief Justice Puno shared the shift towards adoption of the best practices of other jurisdictions especially in environmental cases.10 “He cited India where the precautionary principle derived from international norms has been held as part of its municipal law. In one case, the High Court of India interpreted the precautionary principle to mean: (a) where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation, and (b) the onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign. He said that it is also from India that the Supreme Court adopted the doctrine of continuing mandamus which was applied in the Oil Depot and Manila Bay clean-up cases.”11
The rule-making power of the Supreme Court has also given it the much-needed muscle to promulgate rules concerning the protection and enforcement of constitutional rights. It’s much- heralded Rules on the writ of amparo12 and the writ of habeas data13 contributed immensely to the reduction of the cases of involuntary disappearances, salvaging and murder of union and militant leaders, lawyers and journalists in the country.
CONCLUSION
The Supreme Court has helped, in no small measure, in stabilizing our fledgling democracy by putting a leash on the excessive exercise of executive power. It has evolved to be a key policy maker where executive visibility or “political will” is most wanting, specifically in the protection of human rights and ensuring the integrity of the degraded ecosystem.
9 "Legal standing" or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. (IBP v. Zamora, 2000).
10 Speech before the participants of the Supreme Court-initiated Environmental Forum, April 16, 2009, 11 Forum Bulletin, Day 2,p. 4, http://sc.judiciary.gov.ph/publications/ejforum/FOEJ-04-17-09.pdf 12 http://sc.judiciary.gov.ph/rulesofcourt/2008/jan/A.M.No.08-1-16-SC.pdf 13 http://sc.judiciary.gov.ph/RULE_AMPARO.pdf
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As the 22nd Chief Justice of the Philippines, Reynato S. Puno, succinctly puts it, “The Judiciary may not have the power of the sword, may not have the power of the purse, but it has the power to interpret the Constitution, and the unerring lessons of history tell us that rightly wielded, that power can make a difference for good.”14
14 Supreme Court Annual Report - 2006
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Is Judicial Activism a Challenge to the Executive Power: The Indian Experience
Prof. R. Venkata Rao * National Law School of India University India
Power corrupts and absolute power corrupts absolutely (Lord Acton).With the horrendous experience of the despotic regime of King Louis XIV behind him, Motesquieu has advocated the doctrine of separation of powers among the three organs of the State. The legislature makes laws, the Executive enforces laws and the Judiciary applies laws where they are clear and makes laws clear where they are not clear. A natural corollary of this has been the system of checks and balances. This has been incorporated in the democratic constitutions all over the world. In contemporary times, the working of liberal and democratic constitutions has proved that sometimes fissures arise in the working of the principle and the delicate apple cart has been upset causing severe strains to the working of the system.
Ever since Marshall has propounded the principle of judicial review stating that we are governed by the constitution but the constitution is what the judges say what it is, a debate has been raging over respective roles of the three organs of the state. The New Deal is too familiar an illustration. Can a bunch of Judges, who are nominated, arrogate to themselves the power not fully envisaged in the Constitutional scheme of things and undo the Acts of the people who are elected periodically by the people? Can this be done in the name of the Constitutional values? The moot question is- Who are the better judges of people’s aspirations and expectations? Can the judges say populist measures are transient and smack of political expediency and therefore be relegated to the background for protecting the long term goals and the cherished values of the Constitution? Are not the judges entrusted with the Holy mission of protecting the Constitution? If, yes, is it only singular to judges? Is not the executive also clothed with the same responsibility? These are some of the issues dividing the jurists into two different camps.
Sixty two years after commencing her tryst with destiny, India has emerged as one of the true champions of the RULE OF LAW. The principles of liberal democracy have been like the clarion call and the signature tune of the Constitution of India has been the protection of the dignity of the individual. One thing needs to be mentioned. A number of countries became independent along with India and a number of Constitutions have been drafted. But in most of the countries, democratic forms of government have disappeared and Constitutions have been thrown overboard .The unique feature of working of the Indian Polity has been that the Constitutional principles have been growing from strength to strength. This in no small measure is due to the role of the Supreme Court of India which has been rightly called the Sentinel on the qui vive. Today the evolving principles and the expanding horizons of different facets of constitutional moorings being enunciated by the Supreme Court of India are looked at with awe and admiration by jurists and judicial institutions all over the world. In fact, Prof. Upendra Baxi in his inimitable style observes that India might have had become Republic in 1950 but the Supreme
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Court of India became Republic only in 1970’s. This is because, the Supreme Court has started evolving the new principles of administrative Law only in 1970’s by liberating itself from the narrow confines of the earlier years. Whereas in the first twenty odd years, the Supreme Court of India has been always quoting the Courts of the United States, United Kingdom and France among other countries, later it started enunciating new principles of administrative law to such an extent that today the judgments of the Supreme Court of India are quoted with respect by the U.S Supreme Court and the Highest Courts in other countries.
This judicial activism has been possible due to the advent of judges with vision and far sighted wisdom like Justice P. N. Bhagwati, Justice V. R. Krishna Iyer and Justice O. Chinnappa Reddy among others. The poor people who have hitherto been price out of the Indian legal system found the saviour in the Supreme Court. The butcher, the pavement dweller, the bonded labour, the destitute woman, the neglected child, the hapless prisoner -the list is only illustrative – found the beacon light in the new vistas of jurisprudence with focus on human rights. Epistolary jurisdiction, public interest litigation and forsaking of forms have been cited as examples of the Court’s concern for Human rights culture.
The whips issued to the Executive have sought to drive out the indifference of the executive in fulfilling the mandate of the Constitution. But the saga bordering on hyper activism has sent ripples when the judiciary started entering the domain hitherto considered as the exclusive preserve of the Executive. One should remember that executive and legislative action is the province of the organs specified in this regard. There may be grey areas on the boundaries, especially with the steady growth of case law on intervention in the public interest. Former Chief Justice of India, Justice K.M.Ahmadi observed that it is a misnomer to call it judicial activism and it is only common man’s activism. Judicial activism should be only a temporary phenomenon when the other organs fail to discharge their constitutional obligations. The three organs of the state should remember that the days of mutual fault finding are over and that they are collectively responsible to fulfil the Constitutional mandate. What is required is JUDICIOUS ACTIVISM on part of all the three organs.
*Vice Chancellor, National Law School of India University, Nagarbhavi, Bangalore ,560242 India e mail : [email protected]
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Managing Conflicts Between Congressional and Inherent Presidential Powers: The “Coordinacy” Thesis
Mark D. Rosen1 Chicago-Kent College of Law United States
The President of the United States has many constitutionally granted powers that authorize him to act without prior congressional action. For example, he has power as “Commander-in-Chief”2 to collect foreign intelligence as part of his duty to ensure the safety of Americans.3 To provide another, the “receive Ambassadors” Clause4 grants presidential power to either settle American citizens’ claims against foreign governments or to elect not to pursue such claims for fear that doing so would create friction with other countries.5 Congress’ legislative powers overlap considerably6 with the President’s inherent, constitutionally-granted powers. For instance, Congress relied on its power to make “Rules for the Government and Regulation of the land and naval Forces”7 when it enacted the Foreign Intelligence Surveillance Act (FISA), which specifies procedures to be followed in collecting foreign intelligence.8 And Congress relied on several other constitutional grants when it enacted the Foreign Sovereign Immunities Act (FSIA), which grants American citizens the right to sue foreign countries.9 Lawfully enacted legislation triggers the presidential duty to “take Care that the Laws be faithfully executed.”10 But there is no authority for the proposition that lawful legislation displaces inherent presidential powers. There accordingly is significant overlap between inherent presidential power and congressional power, and this gives rise to a difficult question: what (for example) if the President believes “tak[ing] Care” that FISA’s intelligence-gathering requirements are “faithfully executed”11 would undermine his duty as Commander-in-Chief to keep American citizens safe? Similarly, what if the President thought that a private lawsuit against a foreign country authorized by the FSIA threatened to undermine U.S. relations with that country, thereby interfering with this his duties under the “receive Ambassadors” clause and his other foreign relations powers?12 Both these queries present a “conflict of laws” question. Conflicts can arise when two governmental institutions have overlapping powers. Justice Jackson’s concurring opinion in the famed Steel Seizure Case13 is near-universally understood as having provided a simple principle for resolving
1 Professor and Freehling Scholar, Chicago-Kent College of Law. 2 U.S. CONST. Art. II, §2, cl. 1. 3 See, e.g., Totten v. United States, 92 U.S. 105, 106 (1876). Indeed, the President has “engaged in warrantless electronic surveillance of communications in wartime . . . without any statutory authorization . . . since at least the Civil War.” David J. Barron and Martin S. Lederman, The Commander in Chief at the Lowest Ebb – A Constitutional History, 121 HARV. L. REV. 941, 1075 (2008). 4 U.S. CONST. Art. II, §2, cl. 3. 5 See Bradford R. Clark, Domesticating Sole Executive Agreements, 93 VA. L. REV. 1573, 1624-30 (2007). 6 Though not fully. Some of the President’s inherent powers cannot be modified by Congress. For instance, it is generally accepted that Congress could not assign the power to supervise the armed forces to someone other than the President. This paper focuses on the areas of overlap between congressional and inherent presidential powers. 7 U.S. CONST. Art. I. §8, cl. 14. 8 See 92 Stat. at 1797, codified at 18 U.S.C. § 2511. 9 See 28 U.S.C. §§1330, 1602 et seq. 10 U.S. CONST. Art. I, §2, cl. 3. 11 U.S. CONST. Art. II, §2, cl. 3. 12 Cf. Federal Insur. Co. v. Kingdom of Saudi Arabia, 2009 WL 1835181. 13 343 U.S. 579 (1952) (Jackson, J., concurring).
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conflicts between Congress and the President: where presidential and congressional powers overlap, Congress’ acts (primarily via statute) categorically trump the President’s preference to act otherwise.14 In previous work I have shown three things. First, there are many other contexts in American law where two (or more) governmental bodies have overlapping powers.15 For example: (1) states have overlapping regulatory authority (meaning that a given transaction or occurrence frequently can be regulated by more than one state), (2) the federal and state governments have overlapping regulatory authority, (3) the courts of two or more states frequently have overlapping adjudicatory authority to hear a given case, (4) state and federal courts frequently have overlapping adjudicatory authority, and (5) and federal judges and juries have significant overlapping fact-finding powers.16 Second, American law has developed six different types of “conflict-resolution” rules to manage the conflicts that can arise where multiple institutions have overlapping power.17 Jackson’s rule and the Supremacy Clause are what might be called “categorical identity-based” resolution rules in which one institution categorically trumps the other. There also are “presumptive identity-based” rules in which one institution presumptively – but not categorically – trumps the other.18 Other rules resolve inter- institutional conflicts on the basis of wholly different criteria. Two resolve conflicts on the basis of timing: either the institution that acts first trumps (a “first-in-time” rule, as is found in the res judicata and collateral estoppel rules that manage inter-court conflicts) or, less frequently, the last-acting institution trumps (a “last-in-time” rule is used to resolve a subset of conflicts among courts). Another type, which may be called a “multi-factor” conflict-resolution rule, determines which institution trumps on the basis of multiple considerations; this type of rule is used to resolve inter-state conflicts-of-law. Finally, the law sometimes adopts what might be called a “No-sorting” rule that allows both institutions to act and relies on negotiation or coordination among the institutions to resolve the conflict; this is used in relation to potential conflicts between states’ criminal law.19 Third, Justice Jackson’s Steel Seizure concurrence failed to justify the categorical identity-based rule it adopted, instead treating the choice as self-evident.20 This is troublesome because although the Constitution specifies one conflict-resolution rule vis-à-vis federal/state conflicts (the Supremacy Clause), the Constitution provides no rule for resolving inter-branch conflicts between Congress and the President. Awareness that there exists a multiplicity of possible conflict-resolution rules underscores the importance of justifying the one that is selected. Indeed, the absence of sufficient justification is all the more concerning when one recognizes that American law traditionally has made the choice among conflict-resolution rules on the basis of pragmatic, context-sensitive analysis,21 and that this sort of analysis simply has never been undertaken in the context of conflicts between Congress and inherent presidential powers. This paper provisionally suggests that conflicts between congressional and inherent presidential powers may best be resolved on the basis of an identity-based rule under which Congress’ decisions presumptively – but, pace Youngstown, not categorically -- trump. Adopting such a conflict-resolution
14Jackson’s conflict-resolution rule is implicit in his so-called “Category 2” and “Category 3” situations: Category 2 finds presidential action unauthorized by Congress to nonethless be lawful so long as the action falls under the President’s inherent authority, and Category 3 finds Presidential action contrary to statute to be lawful only where Congress acted beyond its constitutional powers and presidential action falls under the President’s inherent powers. Read together, Categories 2 and 3 together mean that where presidential and congressional authority overlap and Congress has acted, the President must follow Congress. In other words, Congress categorically trumps. For a more complete discussion, see Mark D. Rosen, Revisiting Youngstown: Against the View That Jackson’s Concurrence Resolves the Relation Between Congress
and the Commander-in-Chief, 54 U.C.L.A. LAW REV. 1703 (20007). 15 See id.; see also Mark D. Rosen, From Exclusivity to Concurrence, 86 MINN. L. REV. xx (forthcoming 2010). 16See Rosen, From Exclusivity to Concurrence, supra note 15. 17 See Rosen, Youngstown, supra note 14. 18 This is the conflict-sorting rule that applies to the common fact-finding powers that are held by judges and juries. See Youngstown, supra note 14, at 1718-20. 19 See id. at 1728-30. 20 See id. 21 See Rosen, Youngstown, supra note 14, at 1742-45.
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approach would give rise to a relationship between Congress and the President that I shall dub “Coordinacy.” (I’ll explain why shortly). There are three components to the argument in support of Coordinacy. First, as a formal matter, the constitutional text creates the possibility of conflicts, does not determine how they are to be resolved, and does not preclude a presumptive identity-based rule. The President has the duty to “faithfully execute” laws enacted by Congress, but he also has continuing duties to serve as Commander-in-Chief and to receive Ambassadors. It is possible that the President could be subject to conflicting constitutional duties: his take care duty could conflict with his Commander-in-Chief duty to protect the Nation. No constitutional text instructs which presidential duty trumps. Nor does any constitutional text decide which institution, Congress or the President, trumps. Second, a categorical identity-based rule should not be deemed to be settled on the basis of stare decisis. Stare decisis is most properly applicable when a decision has been preceded by thorough consideration, and Jackson’s concurrence reflexively assumes that Congress categorically trumps without giving consideration to any alternative conflict-resolution rules. Further, Jackson’s concurrence endorses the sort of context-sensitive, functionalist analysis this paper advocates. More than this, a strong argument can be made that the near-universally held view that the Jackson concurrence announces a rule that mechanically proclaims categorical congressional supremacy is actually a misreading of Jackson’s opinion.22 And the few post-Youngstown cases that have discussed the issue have taken a position that “is much more equivocal than is often acknowledged.”23 Third, a presumptive identity-based conflict-resolution rule seems preferable on the basis of a comparative institutional analysis.24 How inter-institutional conflicts are to be resolved has profound effects on the balance of power and the dynamics between the institutions and, for this reason, is a crucial component of institutional design. Institutional design is best undertaken by considering the range of options and choosing the best (i.e., a comparative institutional analysis) rather than analyzing a single option in isolation. The relevant question under a comparative institutional analysis is not whether a particular institutional arrangement has some flaws or dangers – for all do – but which arrangement is least flawed or most promising from a pragmatic, functional perspective.25 A comparative analysis reveals that a presumptive identity-based conflict rule yields a more balanced, middle-of-the-road institutional design than does its three competitors. To understand how, it first is necessary to identify the three alternatives. The first is (what ordinarily is taken to be) Justice Jackson’s Youngstown approach: a categorical identity-based rule which, in this context, might be dubbed “Categorical Congressional Supremacy.” The second alternative, which might be called “Presidential Supremacy,” frees the President to pursue the course he thinks best by insisting that Congress does not have legislative authority in respect of matters that fall under the President’s inherent powers.26 In other words, Presidential Supremacists assume that constitutional allocations of a
22 See Rosen, Youngstown, supra note 14, at 1739-41. Jackson’s analysis was far more nuanced than a categorical identity-based rule calls for. For instance, the five pages he spends explaining why the Commander in Chief’s power did not extend to seizing domestic steel factories experiencing labor unrest were unnecessary under a categorical identity-based conflict rule since it was undisputed that Congress had the power to regulate vis-à-vis labor relations. In other words, since Congress had the power to regulate labor relations in the steel industry, Category 3 would have made it irrelevant as to whether the President also had authority to address the matter under his Commander-in-Chief powers. See id. 23 David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb – Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 695 (2008). 24 For an invaluable treatment of this methodology see NEIL K. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW, ECONOMICS, AND PUBLIC POLICY (1994). 25 The two criteria (“least flawed” or “most promising”) are not identical, of course. I shall not explicitly address here which of the two is preferable in this context. 26 See, e.g., Richard A. Epstein, Executive Power, the Commander in Chief, and the Militia Clause, 34 HOFSTRA L. REV. 317, 321 (2005) (arguing that if a power “is given explicitly to the Congress[,] [it] cannot be given implicitly to the President, except on pain of contradiction”). Others in this camp include Michael Stokes Paulsen, see Michael Stokes Paulsen, The Emancipation Proclamation and the Commander-in-Chief Power, 40 GA. L. REV. 807, 828 (2006) (“The Commander-in-Chief power, where it applies, marks the boundaries of Congress’ general regulatory powers
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given power are given to either the President or Congress, but not both.27 The third alternative, what may be called the “Emergency Exception,” adopts Categorical Congressional Supremacy, but adds the momentous caveat that the President may act contrary to what Congress has instructed – and, indeed, to what the Constitution demands – in dire emergencies.28 We can now proceed to comparative institutional analysis. Each alternative to a presumptive identity-based rule vests categorical supremacy in one institution: Jackson’s rule places it in Congress, whereas Presidential Supremacy and the “Emergency Exception” in the President. By contrast, the presumptive rule eschews “single-institution supremacy,” and instead gives rise to an institutional arrangement under which neither the President nor Congress has categorical trumping authority. I shall dub this power-sharing institutional design “Coordinacy.” In this sense, Coordinacy is a middle ground between Categorical Congressional Supremacy, Presidential Supremacy, and the Emergency Exception -- each of which adopts some form of single-institution supremacy. Coordinacy can be justified on the basis of the Constitution’s text; as discussed above, the Constitution does not provide a trumping rule to resolve interbranch conflicts between Congress and inherent presidential powers. More important, however, are functional considerations. It is undesirable for either Congress or the President to have the clear-cut final word vis-à-vis matters that fall within both the President’s inherent powers and Congress’ regulatory authority for two related reasons: (1) both Congress and the President have institutional flaws that counsel against giving either categorical trumping power and (2) rejecting “single-institution supremacy” may lead to greater coordination among the two institutions that, in turn, will lead to better decision-making on account of their complementary institutional characteristics. The Undesirability of Single-Institution Supremacy. It is undesirable for Congress to per se have the final word in relation to the President’s inherent powers (primarily national security and foreign relations) on account of (1) the President’s institutional advantages in these arenas and (2) the legislative process’s deficiencies. The President’s institutional advantages include the familiar list (unity, secrecy, vigor and accountability), as well as something that I call “presentism:” the fact that, as compared to the legislature’s role of projecting forward to create prospective rules, presidential decisions are more temporally proximate both to the situation and the consequences of acting. The legislative process’s deficiencies include the comparative sluggishness of a decision-making process that involves 535 persons versus only one, the well known weaknesses that plague multi-member decision- making bodies (such as the possibility of cycling, splitting the baby, and other failures of rational decision-making that have been elucidated in the public choice literature), and the inevitable imperfection of prospective rules on account of humans’ limited foresight. But it also is undesirable for the President to have unchecked trumping power. Such concentrated power could lead to tyranny. Further, better policies frequently result when there are many decision-makers, rather than just one. Inter-branch Dynamics. Coordinacy’s advantages are perhaps best seen by considering the inter- branch dynamics that it encourages. This first requires an understanding of how Coordinacy would operate. To begin, lawful legislation that imposes constraints on the President’s exercise of his inherent powers is presumptively (indeed, strongly presumptively) binding on the President on account of the
under Article I.”), and many of the Bush Administration lawyers, see, e.g., Prepared Remarks for Attorney General Alberto R. Gonzales at the Georgetown University Law Center, January 24, 2006, available at http://www.usdoj.gov/ag/speeches/2006/ag_speech_0601241.html, at 4 (approvingly referring to the FISA Court of Review’s statement that “[w]e take for granted that the President does have that [inherent] authority” and “assuming that is so, FISA could not encroach on the President’s constitutional power”). 27 For an extended critique of the assumption underwriting Presidential Supremacy that constitutional powers are necessarily granted to “exclusively” to a single institution rather than “concurrently” to two or more, see Rosen, From Exclusivity to Concurrence, supra note 15. 28 See, e.g., RICHARD POSNER, NOT A SUICIDE PACT 12 (2006); Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 YALE L. J. 1011, 1096-1102 (2003). Not all Emergency Exception advocates operate within the assumptions of Congressional Supremacy. See Michael Stokes Paulsen, The Constitution of Necessity, 79 NOTRE DAME L. REV. 1257 (2004).
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“take Care” Clause. The mere fact that a statute may “interfere with his preferred manner” of acting29 is not a sufficient reason for his disregarding it. It is only when enforcing the statute risks interfering with the President’s ability to successfully discharge his inherent duties that a potential conflict arises between two (or more) presidential duties.30 At that point, the President’s first constitutional obligation is to seek to eliminate the conflict by asking Congress to repeal or amend the law that he believes to be problematic. If Congress refuses, and (as far as the President is concerned) the constitutional conflict remains, Coordinacy suggests that the President is constitutionally entitled, in the first instance, to resolve the conflict as he or she sees fit. The resolution may include a decision to disregard legislation that has been duly enacted – not on the theory that the legislation is unconstitutional, but on the ground that the legislation need not be applied under present circumstances because, even after giving the heavy deference that is owed to Congress’ policy judgment expressed in statute,31 the President believes that applying the law would lead him to violate one (or more) duties that flow from his inherent powers.32 For where a constitutional conflict between two or more duties exists and endures, the only mechanism for resolving it is allowing one to trump the other. Coordinacy does not dissolve into Presidential Supremacy. A crucial component of Coordinacy is that any presidential decision to disregard legislation must be publicized outside the executive branch; secretive disregard of lawfully enacted legislation would run too great a risk of the tyranny of unchecked executive aggrandizement. Coordinacy thus gives the President license to unilaterally disregard lawfully enacted legislation -- but only for a limited period of time. Coordinacy requires and demands that there soon be a day of reckoning where the President will have to publicly defend his decision to allow his Commander-in-Chief powers to trump his “take care” duties. I dub this Coordinacy’s “publicity requirement.” There are three societal institutions before which the President ultimately would have to justify his decision: (1) Congress, by means of hearings and possible impeachment proceedings, (2) courts, and (3) the public. These checks are well suited to the task at hand. For one, the primary functional reason to give the President leeway to disregard legislation is concern that the legislative process is too imperfect to support an absolute rule of congressional supremacy, and Coordinacy provides the President some time to test his thesis and accumulate evidence that can support his judgment. The primary danger of giving the President such leeway is that it could open the door to executive tyranny, but a properly calibrated publicity requirement would eliminate this danger.33 That is to say, although Coordinacy’s publicity requirement does not foreclose the possibility of some executive overreaching in the short run (meaning inappropriate executive disregard of legislation), Coordinacy’s check should be sufficient to obviate concerns of permanent executive tyranny. It is absolutely, categorically, imperative that every presidential trump of Congress be publicized outside the halls of the Executive. The details of how and when such disclosures must be made cannot be addressed in this brief essay, but some broad points can be made. To begin, certain types of
29 Barron & Lederman, supra note 23, at 697. Barron and Lederman’s outstanding 2-part article addresses a different question than what I examine here. They convincingly argue on grounds of originalism, precedent, and longstanding practice against Bush Administration arguments that fall under what this paper dubs “Presidential Supremacy,” that is, the theory that “operational or tactical matters are . . . within the exclusive, and preclusive, province of the Commander in Chief.” Id. at 696. 30 Cf. Statement of Attorney General Edward Levi, Foreign Intelligence Surveillance Act: Hearing Before the Subcomm. On Courts, Civil Liberties, and the Administration of Justice of the H. Comm. On the Judiciary, 94th Cong. 92 (1976) (concluding that “when a statute prescribes a method of domestic action adequate to the President’s duty to protect the national security, the President is legally obliged to follow it.”) (emphasis supplied). 31 For a valuable discussion concerning the nature of deference, see Philip Soper, The Ethics of Deference: Learning From Law’s Morals (Cambridge: Cambridge University Press, 2002). 32 This can be conceptualized as the presidential analog of an “as-applied” rather than “facial” challenge to a statute: the statute is not generally unconstitutional, but is problematically deficient in certain applications. 33Publicity and the day of reckoning also work against the concern that Coordinacy may allow too many decisions to be made by a single individual; Congress’ duly enacted policies are the baseline assumed policies, and any presidential deviations must be well justified and carefully circumscribed.
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presidential overrides, by their nature, would be public. Consider, for example, a presidential decision to order the dismissal of a lawsuit against a foreign country, otherwise authorized under the FSIA, on the theory that the case problematically aggravated this Nation’s foreign relations. On the other hand, the publicity requirement would come into tension with the secrecy that so often is required for matters relating to national security.34 Federal law already imposes significant disclosure requirements on the President, with the most sensitive information being limited to select members of Congress (the so- called “Gang of 8”).35 There are good reasons to conclude that these requirements are not sufficiently strict to ensure reporting to Congress, and it is a difficult question as to whether Coordinacy’s publicity requirement would be satisfied by disclosures that, for a long period of time, would be limited to members of Congress. More than this, it is an open question as to whether any such disclosure requirements would have sufficient traction to guard against executive usurpation if Coordinacy were applied to matters of national security. Coordinacy creates less of a risk of executive overreaching than may appear at first because it endorses only a limited scope of presidential trumping power. Coordinacy authorizes presidential overrides only in one potential situation of “constitutional conflict:” where the President’s inherent powers are in tension (or so he believes) with legislation that has been enacted pursuant to Congress’ constitutional grants of power. Coordinacy’s resolution of this sort of conflict – what usefully can be labeled a “powers conflict” – has no bearing on a second type of potential conflict: those between inherent presidential power and constitutional limitations (for instance, due process, equal protection, and so forth) – what might be called a “power-limit conflict.” Coordinacy accordingly is concerned with constitutional conflicts in relation to presidential actions that unquestionably could have been permissible had Congress legislated. In this regard, Coordinacy is far more moderate than the Emergency Exception, whose supporters do not place any a priori limits on what limitations the President may disregard. Coordinacy’s “publicity requirement” is an integral component of the incentive structure that encourages beneficial inter-branch cooperation. As mentioned above, the President’s first duty is to petition Congress to amend law he deems to problematically interfere with his inherent powers. More than this, Coordinacy encourages the President to make a significant effort to get Congress to act, for legislation provides the President a safe harbor within which he can act, free of the fear of impeachment, judicial challenge, and being tarred by the public as a usurper. If Congress does not act, after all, the law on the books presumptively binds the President, subject only to there being adequate grounds for him to conclude that enforcing the law would come at the expense of his inherent powers and that he would be able to convincingly justify this conclusion before Congress, courts, and the public. Next consider Congress’ perspective. Coordinacy encourages the Congress to take the President’s concerns seriously and to act expeditiously. If Congress does not act, it knows that the President could elect to act unilaterally. The more out of touch legislation is with contemporary needs, the more readily the President will be able to make a convincing case that disregarding legislation was appropriate. The President’s potential unilateral powers can combat congressional lethargy that may otherwise result when different parties control the presidency and one or both houses of Congress, if there are upcoming elections that either distract Congress or temporarily raise their risk-aversion, or other reasons. Coordinacy’s incentives for interbranch cooperation is a good thing because, all things being equal, it is better that national security policy be jointly set by the President and Congress rather than by only one institution. Dual branch policy formulation is preferable over single branch policy formulation
34 Though not always. For example, President Ford disregarded statutory funding limitations when he authorized the evacuation of non- Americans from South Vietnam in 1975. See Barron & Lederman, supra note 23 at 1072-74. This action was not kept secret, but in fact was widely publicized at the time. Id. at 1074 n. 541. 35 See 50 U.S.C. §412b(c)(2).
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because each branch has distinctive institutional perspectives and characteristics in respect both of their respective competencies to formulate policy and also in terms of their democratic representativeness (only the President represents the interests of the nation as a whole, for example). Furthermore, the joint exercise of power works against the concentration of power in a single locus, which is the danger of tyranny that concerned the Framers and properly concerns us. If It Ain’t Broke . . . Finally, one might ask: why revisit Justice Jackson’s Categorical Congressional Supremacy approach now if the system currently in place is working just fine? For one, scholars ought not to complacently close their minds to potentially superior alternatives. Perhaps more importantly, though, the premise that Jackson’s system of categorical congressional supremacy works fine deserves further scrutiny. On at least two occasions, modern Presidents have acted so as to flatly disregard statutory limitations on their inherent powers.36 Several other Presidents (all post-World War II) have explicitly indicated (primarily in signing statements) that they viewed statutorily provisions as unconstitutionally encroaching on their inherent powers, though it is not clear that they ultimately acted upon their views.37 Perhaps most importantly, Presidents have regularly skirted the constraints imposed by Jackson’s rule by relying on implausible interpretations of statutes to “authorize” the actions they desire.38 I am neither defending nor indicting these presidential actions. The important point for present purposes is that modern presidential practice does not neatly fit into Youngstown’s framework of Categorical Congressional Supremacy. These contemporary practices undermine any defense of Jackson’s approach on the ground that the status quo is just fine, for they suggest that the formal legal doctrine does not accurately describe what in fact is happening. It surely is possible to conclude that the presidential practices indicated above all are unconstitutional, and that Categorical Congressional Supremacy ought to be strictly applied to constrain the President. Alternatively, the practices may suggest that Categorical Congressional Supremacy’s tight constraints do not work well in a modern era in which the United States occupies the important role it does on the international stage. And the point of this paper is that the Constitution does not foreclose a recalibration of the relationship between Congress and inherent presidential powers. This paper’s preliminary comparative institutional analysis aspires to be the first, but certainly not the last, words on what may be the preferable conflict- resolution rule to adopt vis-à-vis conflicts between congressional and inherent presidential powers.
36 Both President Truman and President Ford explicitly disregarded statutory limitations on their Commander-in-Chief powers. See Barron & Lederman, supra note 23, at 1062-63 (Truman); id. at 1071-74 (Ford). 37 All post-World War II Presidents, with the sole exception of Jimmy Carter, have done this. For a comprehensive discussion, see Barron & Lederman, supra note 23, at 1056-98. 38 As counsel to President Roosevelt, Robert Jackson himself did this when he offered what sympathetically has been described as a “creative” and “imaginative” reading of the Espionage Age that permitted Roosevelt to exchange American Navy destroyers for British naval and air bases in the Atlantic. Barron & Lederman, supra note 23, at 1043-48. President Clinton likewise relied on a “controversial statutory interpretation” to permit the deployment of troops in Kosovo longer than the sixty-day limit laid down in the War Powers Resolution. Id. at 1090. President Reagan did the same in the context of the so-called Iran-Contra Affair. See id. at 1081-84. The Supreme Court itself arguably did the same in the Dames & Moore decision.
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Contemporary Challenges to Executive Power: The Constitutional Scheme and Practice in India
Dr. V. Vijayakumar∗ National Law School of India University India
The Constitution of India that is modeled on the Government of India Act, 1935, deviates from the British Parliamentary form of Government. The framers of the Constitution also were decisive in having the parliamentary form of government, yet no mention of the form of government was made in the Constitution. The desire of a few to have the parliamentary form of government and the adoption of the constitution without any detail to ensure that form of government has created a constitutional conundrum in the working of the Constitution of India. Coupled with this, the vast amount of governmental functions to fulfill the aspirations of the Constitution and its people, the nature and extent of executive power as organized under the Indian Constitution have been organized wide enough to cover every aspect of human life. Unless the vast expanse of this executive power is controlled and regulated, the misuse and abuse of power will certainly continue to increase in the absence of any meaningful accountability either in practice or under the Constitution.
Unlike the American and the British Constitutions, the executive power of the Union is vested specifically with the President under Article 53 and the executive power of the State is vested with the Governor under Article 154. Apart from vesting the executive power, these two provisions also provide for the exercise of such executive power either by him directly or through the officers subordinate to him in accordance with the Constitution. However, such vesting provision, unlike the American Constitution, is not there under the Indian Constitution either for the legislature or the judiciary. At the same time, it cannot be said that such powers of the legislature and the judiciary do not exist separetely under the Indian Constitution. The only difference is that to arrive at the legislative and judicial powers, one has to carefully go through different provisions of the Constitution.1 Specific vesting clauses, like the American Constitution, cannot be found under the Indian Constitution.
However, the powers vested in the President and the Governors specifically under the Constitution, have been divested in practice by following the British constitutional conventions. Attempts made by the first President to exercise the constitutional powers vested in him became futile in the presence of a strong popular leader, the then Prime Minister, Jawaharlal
∗ Professor of Law, National Law School of India University, Bangalore, India. 1 Articles 241, 241A, 245, 246, 247, 248, 249, 250, 252, 253, 254, 265, 267, 271, 275, 276, 286, 302, 303, 304, 307, 309, 312, 312A, 321, 323A, 323B, 327, 328, 345, 357, 370, 371, 372 and many other provisions pave way for the legislative powers and functions of the Parliament and the State Legislatures. Similarly, Articles 32, 124, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 214, 215, 216, 217, 220, 221, 222, 223, 224, 225, 226, 227, 229 and many other provisions pave way for the exercise of judicial powers and functions under the Indian Constitution.
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Nehru. The subsequent Presidents who were elected by the largest national political party did nothing to change this pattern, except for few occasional decisions taken independently. The Governors at the states became the agents of the Union and the political party in power at the centre became all powerful. The written constitutional norms have been sacrificed in favour of unwritten constitutional conventions and that too of Great Britain. The courts in India also did not realize this distinction and allowed the British constitutional conventions to override the written provisions of the Indian Constitution.
The Supreme Court of India in an attempt to define the executive power adopted a technique that may not answer the real definition of executive power excepting stating what such a power is or relegating such executive power as something subordinated to the other two branches of the government. In the beginning the Supreme Court sought to interpret the constitutional provisions on the executive power in Jayantilal Amritlal Shodhan v. F. N. Rana,2 and in Sardarilal v. Union of India,3 but overruled these decisions in Samsher Singh v. State of Punjab.4 It is in this decision that the Supreme Court adopted the ‘residuary test’ in defining the executive power. Accordingly, the executive power of the state is what remains after the legislative and judicial powers are separated and removed. The court went on to add that the real executive power is vested in the Prime Minister and his Council of Ministers and that the President or the Governor at the State has to act only on the advice tendered by the Council of Ministers.
The prelude to such a stand was already reflected in R. C. Cooper v. Union of India,5 in which the Supreme Court held that ‘under the Constitution, the President being the constitutional Head, normally acts in all matters including the promulgation of Ordinance on the advice of the Council of Ministers…the Ordinance is promulgated in the name of the President and in a constitutional sense on his satisfaction: it is in truth promulgated on the advice of the Council of Ministers and on their satisfaction’. This was relating to the exercise of legislative power and not executive power. The court probably in an attempt to harmonise Articles 75 (3) with Article 75 (2) in U. N. R. Rao v. Indira Gandhi,6 did not approach the problem in a holistic manner. Again, reading these Articles with Article 53 (1), the court literally made the position of the President the weakest of the three branches of the government.
What is ‘vested’ in the President as the executive power has been ‘divested’ in practice as evidenced by these judicial interpretations. This position has created a ‘constitutional conundrum’ and till date no specific answer is found by the court to reestablish the delicate constitutional balance that is provided in the text of the Constitution itself. With the constitutional immunity provided to the President and the Governors under Article 361 of the Constitution, neither these constitutional executives could be responsible and the Council of Ministers with their majority on the floor making the ‘collective responsibility’ an ineffective
2 AIR 1964 SC 648. 3 AIR 1971 SC 1547. 4 AIR 1974 SC 2192. 5 AIR 1970 SC 564. 6 AIR 1971 SC 1002.
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angel. In fact, the Article 361 immunity is literally enjoyed by the Council of Ministers indirectly. This is a serious aspect and needs to be addressed at the earliest to make the constitutional separation of powers and checks and balances work effectively and meaningfully.
These decisions have resulted in combining the legislative power holders represented by the Council of Ministers (15 per cent of the strength of the House of the People) and the executive power vested in the President of India under Article 53 (1). Contrary to this fact, the Supreme Court has been holding that separation of powers is one among the basic structures or essential features of the Constitution.7 It is even more interesting to note that the court has also recognized the ‘checks and balances’8 provided under the Constitution against any concentration of powers.9
Probably one among the best interpretations of the executive power has been provided by Justice P. B. Mukharji. According to him, ‘executive power can never be constitutionally defined and all constitutional efforts to define it must necessarily fail. Executive power is an undefinable multi-dimensional constitutional concept varying from time to time, from situation to situation and with the changing concepts of State in political philosophy and political science…Executive power is nothing short of “the whole state in action” in its manifold activities. In one sense, the legislative power and the judicial power, in order to graduate from phrase to facts, have finally to culminate in executive power to become effective’.10
This view is equally shared by one of the key members of the Constituent Assembly K. M. Munshi as well who observed that ‘the President was expected to be a political force representing national unity, and as will be seen from the express provisions of the Constitution, was invested as such with authority, dignity, and residual power, so that when political parties develop inflexible attitudes, he being above party, could restrain their excesses and defend the Constitution. His principal role was to prevent a parliamentary government from becoming parliamentary anarchy, or a majority government from indulging in constitutional excesses.11
In a plethora of decisions thereafter and till now, the Supreme Court has not changed its opinion. Very recently, a constitution bench of the Supreme Court attempted to deviate from
7 Minerva Mills v. Union of India, AIR 1980 SC 1789; State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296; Asif Hameed v. State of J & K, AIR 1989 SC 1899; Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 (in which the doctrine of basic structures or essential features was clearly laid down); Union of India v. Raghubir Singh, AIR 1989 SC 1933; Supreme Court Advocates on Records Association v. Union of India, (1993) 4 SCC 640; and P. Kannadasan v. State of Tamil Nadu, (1996) 5 SCC 670. 8 Articles 146, 151, 117, 207, 211, 212, 217, 222, 247, 262 (2), 274, 280, 281, 292, 323, 324, 329, 338, 352, 353, 354, 356, 357, 358, 360, 365 and many other provisions pave way for such checks and balances among the three branches of the government under the Indian Constitution. 9 Indira Gandhi v. Raj Narain, AIR 1975 SC 2299; Special Reference No. 1 of 1964, AIR 1965 SC 745; and E. T. Sunny v. C. A. S. S. S. Employees Association, (2004) 8 SCC 683. 10 P. B. MUKARJI, CRITICAL STUDY OF THE INDIAN CONSTITUTION 9-10 (Bombay: Bombay University Press, 1967). 11 K. M. MUNSHI, PRESIDENT UNDER THE INDIAN CONSTITUTION 26 (2nd Edition, Mumbai: Bharatiya Vidhya Bhavan, 1997).
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this position in Madhya Pradesh Special Police Establishment v. State of Madhya Pradesh.12 The court held that ‘in a matter of grant of sanction to prosecute, the Governor is normally required to act on aid and advice of the Council of Ministers and not in his discretion. However, an exception may arise whilst considering grant of sanction to prosecute a Chief Minister or a Minister where as a matter of propriety the Governor may have to act in his own discretion. Similar would be the situation if the Council of Ministers disables itself or disentitles itself. A question whether a matter is or is not a matter in which the Governor is required to act in his discretion can only arise in cases where the Constitution has not expressly provided that the Governor can act in his discretion. Such a question cannot arise in respect of a matter where the Constitution expressly provides that the Governor is to act in his discretion. Article 163(2), therefore, postulates that there can be matters where the Governor can act in his discretion even though the Constitution has not expressly so provided. It is presumed that a high authority like the Council of Ministers will normally act in a bona fide manner, fairly, honestly and in accordance with law. However, on those rare occasions where on facts the bias becomes apparent and/or the decision of Council of Ministers is shown to be irrational and based on non-consideration of relevant factor, the Governor would be right, on the facts of that case, to act in his own discretion and grant sanction’. Today, even this decision seems to have no effect as the Governors of a couple of States have either given the sanction to prosecute a minister for corruption or rejected such a sanction and the issue is being agitated before the Supreme Court again.
Some of the reasons for the failure to enforce accountability in public life in general are in the first place the inability to perceive the differences between ‘power’ and ‘function’ as provided under the Constitution. It is submitted that this situation has resulted in the combination of executive powers and functions with that of the legislative powers and functions.13 In the second place, where the court has interpreted Articles 74 and 163, the meaning and scope of the concept ‘aid and advice’ has not been even attempted to be defined by the court. The real meaning as to who can aid and advice, the problem of surmounting any unconstitutional advice and related issues have not been discussed by the courts. Literally, the court has gone by the British constitutional conventions even at the cost of ignoring many of the specific provisions of the Constitution. In the third place, the relevance of Article 78 vis a vis Articles 53, 74, 75 and 77 has not been addressed by the court in explaining the manner of organization of executive power.
A review of these and many other decisions on these doctrines of ‘separation of powers’ and ‘checks and balances’ would reveal that the Supreme Court has not clearly laid down the constitutional values incorporated in the text of the Constitution specifically. The court even lamented on a number of occasions of the failure to implement many of its directions by the executive to enforce environmental legislation. The recently developed Commonwealth Latimer
12 AIR 2005 SC 325. 13 Articles 53, 74, 154, 163 and 356 use both ‘powers’ and ‘functions’ to indicate two distinct aspects of constitutional scheme.
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House Principles on the Separation of Powers, in which India also played a key role, seems to make no headway either.14 As such the contemporary problem under the Indian Constitution is not only to broadly understand the dimensions of the executive power but also properly locating it in accordance with its provisions if the Constitution has to deliver goods. So long as this fundamental constitutional conundrum is not addressed properly and effectively, the collective responsibility of the Council of Ministers under Article 75 (3) and 164 (2) will remain only a distant dream. Moreover, in the name of the political sovereign under the Constitution, collective responsibility will have the tendency to get diluted further.
14 Latimer House Principles on Separation of Powers….
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Miscellaneous
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Reforming The Spanish Senate: The Proposals in The Council of State Report of 2006
Leopoldo Calvo-Sotelo Instituto de Empresa Spain
I. The Senate in the Spanish Constitution of 1978.
In March 2005 the Spanish Government asked the Council of State to report on four different proposals for amending the Constitution of 1978. The most important of them was about the reform of the Senate. The consultation document is drafted in a cautious and guarded way that is typical of the spirit in which the subject of constitutional reform is addressed in contemporary Spain. Our Constitution, said the Government, is both “the culmination and the most characteristic symbol of a collective success”. No other Constitution had given Spain more “truly democratic stability” or had enjoyed the same wide support. Therefore, only “limited changes” should be introduced in the 1978 Constitution. In addition, the need for those changes should be generally felt. That is certainly the case of the Senate, as we shall immediately see.
According to the 1978 Constitution, the parliament (Cortes Generales) represents the Spanish people and consists of the Congress of Deputies and the Senate (article 66.1). The Senate is defined as “the chamber of territorial representation” (article 69.1). The key components of Spain’s territorial organization are its seventeen Autonomous Communities, or regions, whose right to autonomy is solemnly recognized in article 2 of the Constitution. However, only a small number of Senators (56 out of a total of 264) are appointed by the legislatures of the Autonomous Communities. The remaining 208 Senators are elected by universal suffrage, but the electoral district is the province, not the Autonomous Community. Provinces are local government units that could be roughly compared to the counties in the United States. There are fifty provinces and, despite their subordinate position in Spain’s territorial organization, they are very important in the electoral system, because all members of the Congress of Deputies and most Senators are elected in provincial districts (four Senators are elected in every province). The Congress and the Senate have the same term of office (four years), they have always been dissolved simultaneously, and, therefore, elections for both chambers have always taken place on the same day.
As a standard text on the Spanish political system observes, “decentralization has taken the form of devolving political power to Spain’s seventeen regional governments, while 208 of [the Senate’s 264] seats are allocated through provincial elections (…). This lack of fit destroys the effectiveness of the Senate as chamber of territorial representation in several ways” (Gunther, Montero, and Botella, 2004). The same authors go on to say that “for these reasons, the Senate has not been regarded as a legitimate arena for the representation and articulation
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of regional interests, and numerous proposals have been made for its radical restructuring”. It should be added that the Senate’s influence on the legislative process is limited: bills are initiated in the Congress of Deputies, the Senate has only two months to veto or amend a text approved by Congress, and the Senate’s vetoes or amendments can be easily overridden by Congress (article 90 of the Constitution). Besides, the Senate does not intervene either in the investiture of a new Prime Minister or in the vote of confidence of an existing one: both functions are entrusted only to the Congress of Deputies.
II. The Council of State proposals for reforming the Senate.
In February 2006, the Council of State, which is the Government’s supreme advisory body, approved a report on constitutional reform that was published in book form along with the academic papers presented at a symposium jointly organized by the Council of State and the Center for Political and Constitutional Studies (“El informe del Consejo de Estado sobre la reforma constitucional. Texto del informe y debates académicos”, 2006). The current situation of Spanish political life, which is characterized by confrontation along party lines, makes it unlikely that a constitutional reform of the Senate will be undertaken soon. However, the problem is here to stay and, given the prestige and independence of the Council of State, its report will remain a very important reference on the subject for many years.
In the Council of State’s view, the nature of the Senate as “the chamber of territorial representation” should have effects on its functions, its composition, and its institutional position within the Cortes Generales. In a general way, the report proposes to strenghten the Senate’s participation in the legislative function by extending to four months the period the upper house has to veto or amend bills approved by Congress. More specifically, the Council of State suggests that bills that particularly affect the Autonomous Communities should originate in the Senate. The report contains the following catalog of such bills: delegation of State powers to the Autonomous Communities (article 150 of the Constitution); rules on the cooperation of the State and the Autonomous Communities in tax matters (article 156.2); regulation of the financial resources of the Autonomous Communities (article 157.3); correction of interterritorial economic imbalances (article 158.2); and any other bills whose relevance on regional affairs justifies, in the Government’s opinion, their being initiated in the Senate.
In relation to the Senate functions as a “place of cooperation” between the State and the Autonomous Communities, the Council of State formulates a proposal that is probably inspired in the German Bundesrat: the Senate, and the Senate committees, may request the presence of members of the governments of the Autonomous Communities; in turn, the members of the regional governments may ask to be heard in the Senate and in its committees.
The composition of the Senate has always been the most important issue in all debates on the Spanish upper house reform. As was remarked before, the current composition does not correspond to Spain’s regional structure. The Council of State report tries to correct this “lack of fit” by enhancing the participation of the Autonomous Communities in the Senate. The report uses a combination of three criteria: equal distribution of Senators among the seventeen
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regions; distribution in proportion to each region’s population; and distribution that takes into account the number of provinces included in every region (for instance, the Castile and León region has nine provinces, while Madrid and four other regions have only one). After outlining three models, the Council of State expresses a preference for one in which each Autonomous Community would elect six Senators, plus an additional Senator for every one million inhabitants, and an additional Senator per province. The adoption of this model would result in a chamber composed of 234 Senators and their distribution among the regions would be significantly different from the existing one. Finally, the report favours the election of Senators by universal suffrage over their appointment by the regional legislatures.
The timing of the elections for the Senate is an important point in the Council of State report. The Council recommends that elections for each region’s Senators coincide with the elections for that region’s legislature. The Senate would thus become a permanent chamber with no term of office and an institutional life separate from that of the Congress of Deputies. The Senate renovations would be partial and successive, and their timing would depend on the calendar of regional elections. If the Senate is reformed along these lines, rules on the chamber’s dissolution should also change. In the current system, the Prime Minister may dissolve the Congress, the Senate, or both houses (article 115 of the Constitution). Also, if within two months after the first vote of investiture, no candidate to be Prime Minister has obtained the confidence of Congress, the King must dissolve both houses and call new elections (article 99.5). In the Council of State proposal, the Prime Minister would be empowered to dissolve the Congress, but not the Senate; and only the Congress would be automatically dissolved in the hypothesis contemplated by article 99.5.
In a concluding remark, the Council of State says that the reforms discussed in its report would give rise to a permanent Senate that, while not achieving parity with the Congress, would increase its specific weight and would channel the participation of the Autonomous Communities in forming the will of the State.
QUOTED BIBLIOGRAPHY
Richard Gunther, José Ramón Montero, and Joan Botella, “Democracy in Modern Spain”, Yale University Press, 2004. Francisco Rubio Llorente and José Álvarez Junco, eds., “El informe del Consejo de Estado sobre la reforma constitucional. Texto del informe y debates académicos”, Centro de Estudios Políticos y Constitucionales, Madrid, 2006.
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The Status of Former Presidents in African Political Regimes
Ismaila Midor Fall Université Cheikh Anta Diop de Dakar F.S.J.P Senegal
In his book « Les Chemins de la vie » (Paths of life), the former President of the Republic of Cote d’Ivoire Mr Henri Konan BEDIE tells us that when President Leopold Sedar SENGHOR willingly left power, President Felix Houphouet BOIGNY entrusted him: “Me, I do not like these stories of former presidents”1. President Houphouet BOIGNY was probably not wrong in a political environment where “the post-presidential futures” were uncertain2. To illustrate this situation, in her work on the issue, Sandrine PERROT shows that in most cases former presidents are “ put out of the picture” with executions, detention and exiles. She explains that those who were able to avoid those types of unfortunate endings were forced or brought to explore other domains in order to survive. Thus, there have been “economic reconversions”, reconversions in international activities or even “religious reconversions”. Some even preferred to mobilize their resources to return to politics, sometimes even to the highest jurisdiction to recapture the power and honors they lost3.
Hence, the lack of statutes for those who retired from presidential duties is the reason why those who were in that position likened their end of reign to a loss of status and resources that transform them into simple forgotten or humiliated citizens. In this context, the situation of former chief of states has always been of interest to writers on African issues and Africans that are in favor of the creation of a status to recognize former chief of states4. These writers tried to emphasize the positive link between the existence of a status for former chief of states and the conception of power, all of this going towards viewing a qualitative progress for states and a salute for democracy. For instance, El Hadj MBODJ suggests in that same vein that “one should encourage the adoption of legislation related to the status of former chief of states in order to ensure them on the material and political level5”.
However, this theoretical preoccupation was not seen favorably by the African constituent and legislators because those who were on the top of states, the holders of presidential power, future and potential beneficiaries of such a status envisaged a life-time mandate. That is the reason why their humiliations and sufferings were post-mortem. Subsequently, it was neither right, nor necessary to create a status for former chief of status, a “category” that was rare or non-existing. It was also not surprising to only see the existence of an embryo of status in countries such as
1 H.K. BEDIE, Les chemins de ma vie, Paris, Plon, 1999, p. 47. 2 The word is coined by Sandrine PERROT in her book Y a-t-il une vie après le pouvoir ?, CEAN, Travaux et Documents n° 51-52, 1996, p. 21 et s. 3 Idem, p. 21 et s. 4 On the issue, « What should be the fate of former chief of states? Possible scenarios» in Africa International n° 235, February 1991 ; E.H. MBODJ, La succession du Chef d'Etat en droit constitutionnel africain, op. cit., pp. 564-565 ; S. PERROT, La situation des anciens Présidents d'Afrique Noire, Ph.D. Thesis, African Studies : CEAN-IEP de Bordeaux, 1995, 5 Idem, p. 564.
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Senegal6 and Cameroon7 where chief of states intentionally left power, or in a country like Benin where the high number of military coup has therefore created many former chief of states. On the opposite, the issue of a status was neither important nor relevant in countries like Cote d’Ivoire where the life-time presidency of Houphouet BOIGNY did not give room to the existence of former chief of states.
Nowadays, the constitutionalism that emerged from democratic transitions contains two factors that are conducive to the “emergence” of former chief of states: on the one hand, the limitation of presidential mandates to two or three that ineluctably brings chief of states to abandon power and on the other hand, the political protagonism that can foster the replacement of those currently holding power by others, through the ballots. The democratic departure from dedicated8 or envisaged9 power, be it pacified and intentional, it therefore becomes important and even necessary to “legislate” in order to create a status for those who leave power. It is within this framework that some of the new regimes have incorporated in their charter the principle to grant a particular status10, in line with their rank, for former chief of states. This principle was then officially put into legislative texts or rules. Two concerns appear in these constitutional and legislative arrangements: the content analysis of the status of former chief of states and the specific problem related to their symbolic integration in the institutional machinery of the regimes.
In order to reassure retired third-generation chief of states, the new regimes gave them privileged status (I). However, one can see through these legislative and constitutional texts that the granting of these advantageous statutes is subjugated to certain conditions (II).
I – Privileged statutes
These privileges contain material advantages but sometimes also a protection through jurisdiction (lato sensu). To make sure that chief of states from the democratic period are not stressed by the
6 It is the intentional departure of President SENGHOR that brought the creation of a law that institutes an annual stipend for former chief of states (Law no 81-01 from January 29th 1981 that sets a stipend for former chief of states, JORS no 4814, special number, Thursday February 5th 1981, pp 101 – 102) 7 In Cameroon, the decree no 81-407 from September 10 1981 confers material advantages to former chief of states 8 Since democratic transitions started, may chief of states left power after losing the elections 9 Even the chief of states that are still in power foresee their departure at a date already known in advance. Thus, the Malian President Alpha Oumar KONARE publicly announced that he would leave power after his second mandate in 2002 ; The Senegalese President Abdou DIOUF set his departure date for 2007 if he were to be reelected in 2000, but he lost that election and left. Togo’s President EYADEMA announced under the pressure of political events that he will not be a candidate for the presidential election of 2003; Gabon’s president Omar BONGO is the most expressive when he declares at the even of the 1998 presidential election: “In seven years, at the end of the mandate, if I am reelected I will be 70 years old. That is too much. One must know when it is time to leave, play with your grand-children, travel around the world, give advice to those who come see you instead of walking with four legs, become bad-tempered and go off without being conscious of it. Is power a drug? It is possible. But I know how to cure ». V. J.A. n° 1975 du 17 au 23 november 1998, p. 29. 10 As stated by Nicéphore Dieudonné SOGLO in Jeune Afrique : « After all, what are the chief of states asking to transfer power? That one gives them garanties » J.A. n° 2028 du 23 au 29 november 1999
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problems related to their means of subsistence once they leave power and are not tempted to neither embezzle nor accumulate wealth from the national heritage, the new regions have accepted to grant material and logistical advantages. Hence the loss of power is not assimilated to a social decline. For instance, the legislator in Burkina Faso11 consents to a civil allowance for former chief of states and the amount will be determined by a decree taken par the Cabinet meeting. Moreover, former chief of states have a vehicle and a driver and security. This pension and advantages are personal and for a life-time. The same arrangements exist in Gabon. The legislator in Guinea is more generous as indicated by article 2 of the “organic law related to the conditions under which former presidents are granted material advantages and security. The same applies in Niger12 and Central Africa13. Many chief of states fear judiciary pursuit once they leave power that can lead them into degrading and shameful situations. The fear to face justice and eventually prison is the reason why they want to sustain themselves in the presidency to keep their power position which gives them immunity and impunity.
Also, some of the constitutions and legislative texts and rules adopted after a transitional period institutionalize the immunity of former president for facts that occurred during his mandate. Beyond affirming the principle of protection within the constitutional text, the legislator also gives, to the closest detail, the protection framework for the former president. For example, article 4 of the Guinean law mentioned above provides a permanent immunity to former presidents for acts that occurred when he was in charge. Article 5 adds that former presidents are protected against offenses, insults and abuse. They can not be cited nor summoned to a tribunal, even as a witness. Article 6 details sentences for those who have offended, slandered, abused or insulted a former chief of state.
A round-up of these arrangements reveals a will to “turn against” the idea to take to court the retired chief of states and guarantee them an immunity, or even total impunity. But should that be granted to any chief of state, especially those who came to power with extra-constitutional means or solely to those who were democratically elected?
II – The restrictions to taking advantage of the status
In a continent prone to political instability where taking power with extra-constitutional means which was for a long time considered the main road to accessing power, has enabled the coming to power of leaders who do not really respect democratic norms, it is necessary to determine the criteria to access power and exercise the latter with the help of democratic principles. Subsequently, the respect of those criteria by chief of states should be the general condition to take advantage of the status once you leave power. This does not seem to be the option of the
11 V. Law n° 18/92 du 23 December 1992 grants a civil allowance and other advantages for former chief of states. 12 V. Decree n° 94-036/PRM from 4 march 1994,which creates the platform to apply law n° 94-005 from 3 February 1994, that sets the regime that applies to the pension of former presidents, JORN du 1er may 1994. 13 V. Law n° 97-012 from 31 October 1997 that grants an allocation and advantages to former presidents and its decree of application from 4 march 1998.
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constituents from the democratic era. In fact, the analysis of the constitutional and legislative arrangements for this very issue indicates that the idea to distance chief of states that came to power through a military coup was not very well studies or was rather softly discussed14. The constituents in Guinea15 and Togo16 do not indicate any restriction or condition; they give the status to any chief of state, regardless of the manner in which he came to power and how he implemented it and left. That is not the opinion of other constituents in Mali, Niger, Central Africa and Benin. Article 52 in the Constitution of Mali which is reproduced by article 62 of the Constitution of Niger from May 12th 1996 states that the pension is only granted to former presidents that have their civic rights17. Article 35 of the Constitution of Central Africa only grants the pension to “former presidents elected democratically and that have their civic rights”.
Nevertheless, the dynamics of democracy that started since a decade should progressively bring the constituents to only grant the status to chief of states that arrived democratically to power and that exercised it democratically (2). By reducing the minimum conditions to take advantage of this status granted to former chief of states, the new constitutions have shown an important realism because by giving setting a maximum set of conditions such as that only democratically elected chief of states can benefit from the pension would consist in institutionalizing a right not adapted to the facts. Because the fact is that many former chief of states from the first and second generation did not always come to power in a democratic manner. Only banishing the military coup and institutionalizing competition for power can lead the constituents to foresee integration in the fundamental laws of certain number of conditions to grant the status. Thus, only the former chief of states, who came to power, exercised it and left it in a democratic manner should take advantage of the status.
Moreover, the granting of a status to former chief of states confers them a certain immunity that give them a special jurisdiction protection. However, that immunity should not be assimilated systematically to impunity. Thus, the former chief of states should answer for crimes and offenses of common law that they committed when they were in charge. In addition, even if the national legislations are reluctant to doing it, the engagement responsibility of former chief of states is more and more taken into consideration by international law and jurisdiction and is being effective on the African continent with the perspective of organizing the trial of former president Hissene Habre.
Going beyond material and judiciary protection, certain constitutional and legislative texts arranged somewhere, be it symbolic, in favor of former chief of states so that they will not be “forgotten” by the democratic process. Only, the study of different legislations shows that the institutional place granted to former chief of states seems insignificant to us. Thus, we believe it needs to be improved to grant them an “active” retirement, especially when they desire it.
14 V. art. 36 de la Constitution of Guinea, 75 from Constitution of Togo 15 V. art. 36 de la Constitution. 16 Art. 75 de la Constitution 17 In the new Constitution of Niger dated 1999, article 58 does not mention that clarification. It only states that the law sets the advantages granted to former presidents and explains the modalities to grant a pension to former presidents and chief of states
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Allocating State Authority in View of Constitutional Changes in Georgia
Ketevan Khurodze Caucasus University Caucasus School of Law The Director of Research Center Georgia
In February 6, 2004 Georgian Parliament made some kind of changes in Georgian constitution. It aimed to allocate state authority in a way making more effective the issue of solving the existent problems. It should have been anyway improved today or some day, though this might have been done more easily and smoothly. It is true that constitutional changes were somehow easily done, but in reality we have received revolutionary changes and this kind of changes will be done in legislation as well in order to make it correspondent to the constitution itself.
Issues like, how was constitutional survey bill received, were the requirements, procedural issues of the 2nd item of Article 102 maintained is still under doubt. But the issue that the bill was not published for public discussion should not recall and should not be explained with the fact that similar bill was presented in the parliament. The President created special constitutional commission, which gathered several times, but commission member interviews show that the bill was not valuable studied and accordingly conclusions and comments were not made in time. Despite the fact that non governmental organizations estimated this bill negatively, this did not prevent the parliament to discuss and accept it in an urgent manner.
It is interesting whether the authors have achieved their aims with these changes – to have “powerful president”, “powerful parliament”, and “powerful government”. If this is possible, how the power will be distributed among them? In conditions like this is the mutual balance principal maintained and state authority distribution will stay in democratic frames? In order to clarify this issues let’s see what are the president, parliament and state authority on one hand and their inter control and interaction mechanisms on the other.
1. The president of Georgia The president, who has been the head of the state and executive government, now is the head of the state managing the country and its internal and external politics, state unity, coordination of state bodies. Here he the arbiter. The president is the highest representative of the country in external issue in the country and besides its borders - international relations. He signs constitutional agreements (on the basis of the changes of March 30, 2001), international agreements and contracts, negotiates with foreign countries, hosts the ambassadors of foreign countries and foreign organizations and gives the highest diplomatic ranges to other diplomatic representative accreditations.
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The president is authorized, in the name of the state to make constitutional agreement with the Georgian apostolic autonomy orthodox church; also, he is authorized to make decision concerning foreign citizens and giving citizenship to citizens without Georgian citizenship, in other words to give them naturalistic citizenship, renew Georgina citizenship, make decision about leaving Georgian citizenship and ceasing the citizenship; to give respectful citizenship and double citizenship, if he or she has some special merit for Georgia and or this depends on Georgian interests – give a shelter to foreign citizens and citizens with no citizenship; forgive to condemned.
The President has rather a big authorization in state security and self-defense fields. Namely, for state building and organization state defense system, the president creates national counsel, that he himself leads. The president personally appoints the members of this counsel.
The president is the Supreme Commander-in-Chief of military forces. He appoints and relieves the head of General Headquarters of Military forces and approves its structure.
The president participates in organizing Court authorization. Namely, he is in the chair of Law Supreme Counsel, appoints its four members, appoints and relieves the judges (following the rule of law), appoints three members of the constitutional court.
The president appoints the presidents of the National Bank.
The president appoints the referendum, signs and publishes the law, issues orders, awards state awards, supreme military, special and honorary title. The president makes the president administration as well, appoints its heads.
We shall come across to president’s other authorities separately, in connection with the parliament or the state, as its accomplishment is directly connected to the parliament or the state.
2. Georgian Parliament Parliament is the highest representative body of the state accomplishing legislative government, defining general directions of the internal and external policy of the country, controlling state operations. The Parliament represents rather a great power in any democratic country. Country’s advance and development greatly depends on it. The parliament possesses legitimate possibility to adopt political-governmental decisions and create legal basis for country’s progressive development.
Legislation or legislative operation is the exclusive authority of the parliament. It is true, that the president has the right not to sign the law and accordingly make a veto, but he or she has no absolute right to block the law. In case the president again refuses to sign it, the head of the parliament is authorized to sign and publish the law.
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The competency of the parliament covers as well: to notify or to release before the deadline the authority of the member of the parliament; the elect the head of the parliament and its deputies; create internal bodies; ratification and abolishment of international agreements and contracts; to adopt the resolutions;
The parliament elects three members of the constitutional court, four members of the Supreme Court, the head of the Chamber of Control; defines the variety and the membership of military forces. With the presentation of national security counsel it approves the quantity of military forces; without the consent of the parliament it is unacceptable to arrest or detain the member of Supreme Court or the deputies, to search his or her flat, working place or private things, to sue for criminal crime.
The parliament has an exclusive right to raise the issue of impeachment under the rule of constitution and to the members of persons involved. The parliament should be informed about signing the agreements and contracts which do not need ratification. Other authorities of the president and the parliament we shall discuss below.
3. Relationship of the Parliament and the president The president appoints the date of the elections 60 days before the elections, he appoints special elections as well and the first day of the meeting in 20 days after the elections.
General directions of the internal and external policy of the country is defined by the parliament and directed and accomplished by the president. The president is authorized to convoke special session or meeting, In case this initiative is issued in the parliament and the president has not published invitation act, the parliament is obliged to begin working in 48 hours. State of war declares the president, but he issues this decision (decree) in the parliament during 48 hours. If the parliament does not approve it, accordingly state of war will be declared abolished. The parliament gathers 48 hours after the declaration of the state of was by the president.
It is true that according to the constitution the president is authorized to promulgate decrees similar to the rule of law only in emergency situation, but this kind of authority is considered in the law on “State of War”, in other words he promulgates the decree during the state of war or emergency situation as well. Together with the, the promulgated decree is presented to the parliament during 48 hour for approval.
The president is not able to use military forces without the consent of the parliament during emergency situation or in order to accomplish international obligations. The president decides the issues like to lead, use or move military forces of other states in order to defend the state in special and occasions considered in the law, but this decision is immediately presented to the parliament for approval.
The parliament with the presentation of the president elects the chairman and the judges of Supreme Court, the members of the counsel of national bank. The present presents
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the General Prosecutor to the Parliament for making an appointment. Special authority the president gained after constitutional changes concerning the Parliament is the right to discharge the parliament before appointed term. This was one of those acute issues which were more or less actual while making those changes. This idea had its supporters and opponents. The supporters were declaring that the Parliament will have a right to state distrust to the government. This time authority distribution principle requires giving a president right to discharge the Parliament. To the opinion of the opponents, in case the parliament will be discharged this will create legislative crisis especially die to a fact that Georgian parliament is of single chamber style
There are states where single chamber parliament may be discharged following the constitution (Portugal, Bulgaria). Differently from Georgia these countries have rather complicated procedures for accomplishing this issue and in Georgia this may happen with very simple, president resolution.
This kind of practice of foreign countries does not mean that it is acceptable. In Judicial and political literature the right to discharge single chamber parliament is estimated negatively almost unanimously. This goes against the superlative principle of the Parliament. This time legislative authority comes under the influence of the president and practically accomplishes his policy. Parliament facing such a danger will never be brave in making decisions. After this we naturally come to a question: do people, country need such a representative body? That will not be able to be effective and real opponent to a president, will not be able to be distrustfully to the government, especially when the government represents the president team .??? This time the last chance is the braveness of the members of the parliament – to interchange their position, lots of social-legal privileges to the interests of the country and the nation. Parliament making this this kind of decision mostly depends on it members: “me” or “my country”.
Parliament crisis does not face bicameral countries (double chamber system) there as a rule in case the Lower Chamber is discharged all parliamentary factions are directed to upper chamber. In case discharging single chamber system parliament this crisis is inevitable before electing the new parliament. Special elections are held following the constitutional changes after setting in motion the resolutions about discharging the parliament among 45- 60 days. In other words it is possible that the country may stay without parliament during two months and accordingly during all those activities the legislative body should be accomplishing may be stopped for two months.
The resident is not able to discharge the parliament with its own initiative. This may happen only following the constitution in cases: a) If the government and the program presented by the president will not be able to gain confidence three times repeatedly. This time president discharges the parliament and appoints special elections and the government will itself: appoints the prime-minister and agrees to him to appoint the ministers. This is rather complicated situation when releasing the parliament is justified. If the president declares distrustfulness three times
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repeatedly, he should be given a possibility not to create governmental crisis and apply to this kind of method; b) If declares distrustfulness to the government and the president does not agree to this decision, the parliament is authorized during 90 to 100 days again declare distrustfulness. This time the president is able to discharge the parliament. If the government is powerless accomplishing its functions, fulfilling the governmental program and declares distrustfulness to the president twice, the president, on its part is authorized to make decisions for the government – discharge the parliament. This kind of situation is more real when the government is the supporter team of the president and the parliament is opposition; c) Parliament may be discharged when the prime minister puts under doubt the trustfulness of the government in the parliament for discussing the issues around the bills concerning the budget of the country, tax code and the structure of the government, the rule of authority and operations. If the parliament will not declare trustfulness, the president is authorized to discharge again the parliament.
This are those three cases considered in the constitutional changes but not one of those conditions may be used to discharge the parliament, if: - before 6 months after electing the parliament - 6 months before president authority - When the country is in state of war or emergency situation - The parliament accomplishes impeachment procedures;
Consequently during impeachment procedure the president will not be able to discharge the parliament. The issue of impeachment may arise in case abrogating the constitution, high treason or making criminal crime. Parliament makes impeachment procedure beside the danger of its discharge. The fact that the parliament may do this for blackmail on the president or preventing to be discharged is groundless as the basis for the impeachment is defined in the constitution and rising this issue with out motivation (or more precisely on the non constitutional basis) is inadmissible. Together with this, when the procedure for declaring the trustfulness or distrustfulness to new membership of the government is being accomplished arising the issue for dismissing the president with the impeachment is inadmissible.
Discharged parliament is gathered when the president declares the state of war or emergency situation it has to approve whether the state of war or emergency situation will be continued or not. It is admissible to approve this kind of “decree” concerning the situations mentioned above, but what does it mean “continuation”? If the state of war and emergency situation had already been declared, so how was the parliament discharged? Would not be this non constitutive? This term is some how obscure and needs more definition.
If the parliament is not gathered during 5 days and does not approve (continue) president decree on stating (continuing) emergency situation, stated emergency situation is abolished, and the state of war is abolished when the parliament will not approve president decree on
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stating (continuing) state of war during 48 hours. The president presents the parliament the decision on making the truce during 48 hours.
The president needs the consent of the parliament to stop the operations of self- governmental institutions and other representative bodies of territorial units or to discharge them in cases considered in the constitution. The president appoints and discharges Ambassadors of Georgia and other diplomatic representatives.
After constitutional changes the president has gained new and rather a serous right when he was mandated the right to promulgate the act similar to the rule of law – decree, during the period after discharging the parliament and gathering the first session of the new one. This decree concerns tax and budgeting issues. But it will loose its value if the newly elected parliament from the first session during a month will not approve it, in other words this decree may be active at least during 4 months. This is not small period in tax and budgeting sphere.
If before the changes the president has a legislative initiative right without any restriction, after this changes he has this right in “special occasions” only. With the president demand the parliament discusses the bill he presents out of term.
Once in a year, the president reports to the parliament about the most important issues of the country.
In case the president is not able to accomplish his authorities or his authority is stopped before the term, president responsibilities are directed to the head the parliament. Person responsible for the president operates in the framework of the constitution and the responsibility for organizing special election lays on the parliament.
Each issue mentioned above is discussed as the most important issue of president and parliament relationship. On the basis of this they are controlling and balancing each other in order to avoid misbalance of the government and development of damaging situations.
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Latin American Tendency Towards Presidential Re-election has Taken its Toll on Colombia
Prof. Ernesto Lucena * Universidad Sergio Arboleda School of Law Colombia
The human desire to hold power is a conduct that has deep roots, especially when leaders reform constitutions to remain in power. Throughout history this behavior has had many manifestations, of which positive and negative examples may be found. Nonetheless development of mankind has shown the inconvenience of concentration of power in just one person, or persons, as is said by “Lord Acton's dictum”, John Emerich Edward Dahlberg Acton’s quote, “Power tends to corrupt, and absolute power corrupts absolutely”.
On the other hand, the Baron de Montesquieu, author of “The Spirit of the Laws” (“De l'esprit des Lois”), adamantly defends the division of power and he is recognized for the classic threefold division of power, considering that the confusion of two or more branches of government in one person or institution, would degenerate in abuse of such.
Accumulation of power should not be bad by itself, but rather be dangerous, since it would not assume the abuse of it; it is even possible that a sole person’s leadership, temporarily, helps unlock adverse situations in a country. However, it has been empirically demonstrated that through time, the accumulation of power, once user for altruistic purposes, degenerates in corruption, such as Lord´s Acton dictum states.
Democracy is the prevalent political system in the civilized world, since, in theory it avoids accumulation of power in one person or group, since it is supposed to be on everyone’s hands, and at the same time, on no one’s, resting at last on the institutions. However Aristotle, and other philosophers deemed it as not the best of all, this system is the one with which governments have been better managed. However, modern democracies are significantly more complex than originally conceived, so that power can be accumulated to the point of becoming a democracy only on paper.
Historically in Latin America, the States have sought to avoid the accumulation of power, especially in the executive branch, preventing the reelection of presidents. This is because in highly presidentialized systems of government, he who holds the reins of executive power has so much power that the best way to counteract this, is to limit its tenure. However, in recent decades this trend has been mutated to democratic systems permitting presidential re-election. Phenomenon that coincides with the emergence of highly popular leaders in their respective states and that appear to have brought solutions to all of people’s problems, and in which there is a Latin American tradition, "warlordism," but that has reached extravagant dimensions to the point of becoming "messianism," as has been generated around these leaders a belief of timelessness, proper to poor and deinstitutionalized democracies.
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Democracy’s highest expression, rather than the majority, is pluralism, which is that all schools and liens of thought influence the direction of the State. Progress is not tied to the soundness of institutions and the clarity of the collective political thinking, but to the will of a leader.
Argentina, Peru, Venezuela, Bolivia, Ecuador and Colombia, are some of the Latin-American states which have given the go-ahead for immediate re-election with his own name in recent years. On the other hand Chile and Brazil continue faithfully on their constitutional tradition, since they have recently suffered severely at the hands of authoritarian regimes and dictatorships.
Argentina’s experience with Carlos Menem, Peru’s with Alberto Fujimori, Venezuela’s with Hugo Chavez and Bolivia’s with Evo Morales show that the State’s institutionallity does not come out in good shape from these re-election processes, at least when it is tailor made for a particular leader.
One of the most important aspects of a democratic system is its institutional framework; it is what gives it its strength and cohesion to it. When a democracy can function independently of the political party which is in power, especially of those individuals who hold it, democracy is hardly weakened. Likewise, although there are problems and disagreements in the functioning of government, democracy is the best way to ensure that all people have the opportunity to participate in its management.
A state’s institutionalization lies in the strength of its constitution, since it embodies the basic rules of the game. For this reason is that reforms to a constitution are extremely important events, since they change the rules. Thus, lightly changing the Constitution, ephemerally motivated, and immediate and personal motives, is catastrophic for the state’s institutions, especially when done on the fly, and the heat of events. Colombia, for instance, after the Constitution’s total reform, from the one of1886 to the 1991 Constitution, kept the constitutional tradition to refrain from presidential reelection. Hence, article 197, before amended, stated: “No citizen who has held presidential office, regardless of the reason, may be elected President of the Republic”.
However, given Mr. Alvaro Uribe’s government high popular acceptance, the re-election desire bells began to ring, and after a hard political battle, the desire from great part of the people, the government coalition achieved to push through Congress a constitutional reform, allowing the president reelection as follows:
“The President of the Republic, or who has taken title to any such office, may be elected to two terms, consecutive or not.”
Which allowed President Uribe, due to his popularity; continue in office for some more years.
The problem of a second reelection in Colombia is not the legitimacy, but the inconvenience. It is possible that a person, as a great leader, has the support of the majority of the people to
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govern, but this cannot become a "letter of marquee" to remain in power, because as we have seen, this situation is inconvenient for democracy and the state’s institutions. In the specific case of Colombia, the possibility of a president to rule 12 years consecutive sharply breaks the division of powers established in the Constitution, because this agent would earn a great power that would enable a decisive influence in the institutions that should be their checks and balances. This is much worse when we see that such change in the rules of the game is to be realized easily, both legal and politically, aiming for a customized purpose.
For these reasons the possibility of a second presidential reelection in Colombia is inconvenient for the case of the current President and for any future one, because on one hand it breaks the system of checks and balances of public power and on the other because it deinstitutionalizes the State.
It is clear that what a considerable portion of the people wants is to continue under the government of President Uribe Vélez, by virtue of his great achievements regarding safety. Wanting to tinker the Constitution as intended to do so, would be similar to, by vote, decide to apply the death penalty to any particular individual, although the Constitution forbids it. Changing it only with the intention of killing this person, despite not wanting to institutionalize this practice in thereafter. We would face the disappearance of the Constitutional State and the rule of law.
To uphold in addition, that one person or individual is the only one that has the ability to lead the country, cripples the political parties and democracy itself, because they may forget their power vocation and their ability to object. It would be to live in a single-member system as parasites.
* Vice Dean, Universidad Sergio Arboleda School of Law. Bogotá, Colombia. [email protected]
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Guarding Constitution of Indonesia through the Court
Wasis Susetio Universitas Indonusa Esa Unggul Indonesia
I. Introduction
Since third amendment of Undang-Undang Dasar 1945 (The Republic of Indonesia Constitution) in 2001 , Indonesia has established The Constitutional Court that shall posses the authority to try a case at final and binding and shall have the final power of decision in reviewing laws against the constitution, determining disputes over the authorities of state institutions whose powers are given by the constitution, deciding over the dissolution of a political party, and deciding over disputes on the results of a general election. Based on article 24 C sub article (2) , The Constitutional Court also possess the authority to issues a decision over a position concerning alleged violation by the President and/or the vice President as provided by the constitution.
The idea to have an institution in change of constitutional jurisdiction is by no means a new one in Indonesia. In fact, it had already been debated as early as 1945 when the founding fathers of the new republic were drafting the 1945 constitution. The concept of a Supreme Court vested with powers of judicial review was proposed by Muhammad Yamin, himself a strong advocate of democracy, rule of law and human rights protection. Judicial review authority for the Supreme Court would clearly have strengthened the principle of separation powers, the very idea, however, did not fit into the integralist concept of state promoted by prominent constitutional law expert Raden Soepomo, who consequently rejected it. The authors of the original 1945 Constitution decided against judicial review authority. But the new idea was kept alive, it was brought up ever now and again, in the 1970s, for example, by the Indonesian Judges Association (IKAHI) and in the 1980’s by the Indonesian Lawyer’s Association (PERADIN).1
Formally, it can be significantly proposed to establish the institution which has the power to guard the constructions into the period as follows:
The first wave occurred in the Session of the BPUPK in 1945 when this institution arranged a draft of the Constitution for the state.2 In this BPUPK session, Yamin, a member, proposed this draft. However, other members, including Soepomo, rejected this draft of the Constitution which was arranged by the BPUPK and taken over by and legalized by PPKI (Committee for the Preparation of Indonesian Independence) on 18 August 1945 as the proclamation constitution, did not attach the authority of the Constitutional Court to verify laws.3 The legislators of the 1949 RIS Constitution and 1950 UUDS (1950 Provisional Constitution) seemed to follow the idea
1 Petra Stockmann, The new Indonesian Constitutional Court,Hans Seidel Foundation, Jakarta, 2007
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of the founders and drafters of the 1945 Constitution and rejected the judicial authority to verify laws.
The second wave occurred when the Constituent Assembly elected at the 1955 General Election held their sessions during the period from 1957 to 1958 in order to arrange and draft a new Constitution as the replacement for the 1950 UUDS. The session held by the Constituent Assembly approved a Constitutional Court to hold the authority for verifying laws and governmental actions by employing the 1945 Constitution as the benchmark for determining validity of laws and actions. Yet, it was canceled because President Soekarno, through the Presidential Decree dated 5 July 1959 re-enacted the Proclamation Constitution of 17 August 1945 and dissolved the Constituent Assembly. This decree was deemed to have re-enacted the 1945 Constitution which clearly did not allow for a Constitutional Court to verify laws and governmental regulations or actions.
The third wave occurred at the beginning of the New Order administration (1965-1970) and reached its culmination in 1970 when the DPR-GR together with the Government discussed Law No. 14 of 1970 regarding the Principles of Judicial Authority as the replacement for Law No. 19 of 1964.4 After 1970, until the collapse of the authoritarian regime of Soeharto in 1998, the debate regarding the issue of a Constitutional Court was not only on the back-burner but had largely been forgotten as an issue at all. The People’s Consultative Assembly elected at General Elections in the New Order era did not change its stance on this issue in spite of the growing.2
A window of opportunity for constitutional jurisdiction opened in the ensuing era reformasi (reformation age), after the fall of Soeharto. NGO’s still had it on their agenda for democratization and judicial reform. Members of the MPR (the People’s Consultative Assembly), in change of constitutional amendment became aware that several states had recently introduced constitutional jurisdiction into their system of government, among others Thailand and South Korea. Study tours abroad seem to have further strengthened their conviction that constitutional jurisdiction was an important element in a system that was based on separation rather than integration of powers. By August, 13 , 2003, The Constitutional Court of Republic of Indonesia had been established which has 9 judges who elected by Parliament (3 judges), President (3 judges) and Supreme Court (3 judges). Then, recently, the first generation of judge had been replaced by the new judges, some of the incumbents are still in the position.
2. The Idea of The Establishment Behind The Constitutional Court
The idea of establishment of a Constitutional Court is discussed in two parts, namely: the idea of Constitutionalism and the authority of the Constitutional Court.
2 Benny K. Harman, THE ROLE OF THE CONSTITUTIONAL COURT IN INDONESIAN LEGAL REFORM, Gramedia, Jakarta, 2006
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1. Constitutionalism
The establishment of a Constitutional Court in each country is triggered for a variety of reasons, however in general, the establishment of a Constitutional Court is initiated by a process of political change from authoritarian power into democracy. The rejection of authoritarianism has an impact on the demand for a democratic state administration which appreciates human rights.20 Likewise, for the establishment of the Constitutional Court in Indonesia. Basically, the establishment of the Constitutional Court may not be separated from the past experiences in the administration of the authoritarian regime, essentially a closed power that does not respect human rights. The idea of establishing the Constitutional Court is motivated by a desire to have better administration of authority and state administration. There are at least four triggers for the foundation of a Constitutional Court; namely, (1) as a development of the constitutionalism concept, (2) a checks and balances mechanism; (3) clean and transparent state administration, and 4) protection for human rights.
The Concept of Constitutionalism is a concept that seeks to provide a limitation on authority. This concept has two elements. The first element is the concept of a legal state where the legal power universally controls the state’s authority, and in this respect, the law performs as a control of politics. The second element is the concept of citizen civil rights or the stating that the freedom of citizens is guaranteed by the constitution and the state’s authority is limited by the constitution, and this authority must be legitimized by the constitution.21 Institutionalization of the Constitutional Court is the implementation of the constitutionalism concept, demanding the existence of power limitations and this institution obtains a mandate from the constitution to settle the problems relating to the constitution and state administration.
2. Checks and Balances Mechanism
One of the characteristics of a proper governmental system is the existence of a checks and balances mechanism in the implementation of authority. The existence of this checks and balances mechanism will enable the mutual control between the existing branches of authority while endeavoring to prevent hegemonic, tyrannical actions, and the centralization of authority. The implementation of the checks and balances principle is required to ensure that there is no overlap among the existing authorities. By referring to the principle of a legal state, then the relevant control system is judicial control. The position of the Constitutional Court as a part of the judicial authority (judicative authority), will encourage the development of the checks and balances mechanism in state administration.
3. Clean and Good Government
A proper governmental system necessitates the existence of clean, transparent, and participative state administration. The Constitutional Court is an authority which may be positioned to perform this type of accountability control against public officials in the
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performance of their duties and functions, in this sense there will always be a reference to the morality and the interest of citizens.
4. Protection of Human Rights
Unlimited authority frequently leads to the performance of arbitrary actions in state administration and violations of human rights. The Constitutional Court is a branch of authority which functions to maintain state administration in order that it always refers to democratic principles as well as respecting and protecting human rights.
Recent Development
Now, The Constitutional Court entered the sixth year of its existence. Its role in the Indonesian state administration system has been gaining increasingly recognition and position, particularly with respect to the check and balances mechanism. The intensive efforts to introduce the duties and authorities of the constitutional court to strategic community groups have also supported the process of institutional enhancement which is reasonably acceptable among the people and the nation.
During the period from 2005 to 2006, the Constitutional Court has issued decisions on a number of petitions deemed to be significant in affecting the constitutionalism concept in the Indonesian state administration system. Some officials have even reacted to them in amazement. The role of the Constitutional Court in the checks and balances mechanism of the Indonesian state administration system is reflected in the ratio of the number of legislators directly elected by the people to the nine constitutional judges elected by the People’s Legislative Assembly (DPR), which reflects how powerful the Constitutional Court is. Therefore, in the preliminary stage towards a consolidated democracy, where violations of the constitution are rampant, the Constitutional Court can play an important role in consolidated democracy and can improve political stability by opening itself and demonstrating a high level of patience as well as by conducting dialogue and socialization
Decision on the 2005 National Revenues and Expenditures Budget (APBN)
The national revenues and expenditures budget, stipulated annually by law, is in fact a calculation of state revenues and expenditures for a particular year. The revenues and expenditures accounts are calculated in a plan prepared based on a particular priority scale. However, it is explicitly provided for in article 31 paragraph (4) of the 1945 Constitution that the state shall prioritize budgets for the educational sector amounting to at least twenty percent of the state revenues and expenditures budget as well as of the regional revenues and expenditures budget, to fulfill the needs for national education. Although the APBN in fact only contains the plan or estimates of the state revenues and expenditures budget with
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expenditures accounts, such estimates and plan must be included in law as an attachment, which constitutes an inseparable part of the law, and as such in accordance with article 24C paragraph (1) of the 1945 Constitution the said law can be tested against the 1945 Constitution. Decision of the Constitutional Court No. 26/PUU-III/2005 dated March 22,2006, filed by the Association of Indonesian Teachers (PGRI) and Indonesian Educationalists’ Association (ISPI) in its consideration state the following: “…considering the importance of education for the Indonesian nation, it shall not be considered merely as citizens’ right, in fact, the 1945 Constitution sees the necessity to determine basic education as citizen’s obligation. In order to fulfill the citizens’ obligation, the 1945 Constitution in its article 31 paragraph (2) obligates the government to finance it. From the perspective of human rights, the right to obtain education is one of the human rights in addition to civil and political rights, including social, economic and cultural rights. The state's obligation to respect and to fulfill the social, economic ,cultural rights is an obligation to results and not an obligation to conduct as in civil and political rights. The state’s obligation in the sense of “Obligation to results” is fulfilled if the state has utilized the maximum available resources in good faith and has performed progressive realization”.
The Constitutional Court regards human rights to obtain education as an aspiration; therefore it is understandable if the constitutional order in article 31 paragraph (4) is not fully and immediately fulfilled at once, insofar as it is performed in good faith. The Court has even avoided total confrontation in with the Government and the DPR by not declaring the Law on 2005 APBN unconstitutional in its entirety and by providing only limited legal consequences of the unconstitutionality of the national budget law, by declaring only the education account in the budget for the fiscal year of 2005 nonbinding insofar as it is related to the designated highest limit. This means that the Court has ordered the revision of the education budget in the current year by conducting fund reallocation and seeking efficiency in the expenditure accounts for other sector with the aim of increasing the education budget in order to comply with the Constitutional order. The state revenues and expenditures plan in the aforementioned APBN law remains applicable, and confusion in the implementation of the state administration is avoided as much as possible.
Decision on Anticorruption Law
The decision of the Constitutional Court (MK) that has invited the greatest opposition from anticorruption NGOs, the staff of the attorney general’s office and the Corruption Eradication Commission (KPK), is the decision to delete the phrase “material unlawfulness” in the elucidation of the article 2 paragraph (1) of law no.31 year 1999 regarding the eradication of crimes. The corruption eradication movement which has become an important agenda item of the present government and KPK, having tremendous authorities as extraordinary measures deviating from the criminal procedure law applicable for the prosecutors and the police, has created a new constitutional problem in comparison to the handling of cases by the attorney general’s office and the police. However, the concept or unlawfulness material or substantive law serving as a basis to take legal actions against corruption crimes has remained, namely Law Number 31 year 1999 as amended with law Number 20 year 2001. Upon the request of a defendant whose case being examined by a District Court, the Constitutional Court has granted
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the request by annulling the first sentence of the elucidation of article 2 paragraph (1) of the aforementioned Anticorruption Law, which reads as follows:
“Referred to as unlawful in this article shall include unlawfulness both in the formal and material sense, namely even though an act is not regulated in laws and regulations, but it is considered improper because it is not in accordance with the sense of justice or the social norms in the community, such act may be subject to criminal punishment”.
Corruption as intended in article 2 paragraph (1) is an unlawful act that, as in the explanation, can occur not only in violation of the formal law, namely violations to written laws and regulations, but also in violation of material laws because such act is considered improper and disgraceful. In other words, such act is deemed as violating non-formal regulations in the form of custom, and the sense of decency and justice that is adhered to n the community.
Decision on the Judicial Commission
The third amendment to the 1945 Constitution includes the idea of checks and balances by establishing a Constitutional Court, in addition to the Supreme Court, as the exerciser of judicial authority with limited duties, as an institution. With such limited authorities, the Constitutional Court is authorized, among other things, to substantiate the constitutionality of laws and to decide on disputes among state institutions which obtain their authorities from the 1945 Constitution. However, in the same chapter, a new institution is also formed to recruit candidates for Supreme Court justices and to oversee the conduct of judges. The new institution is called Judicial Commission (KY). It is expressly set forth in article 24 paragraph (1) of the 1945 Constitution that an exercisers of judicial authority are the Supreme Court and the Constitutional Court, whereas KY is not included as the exerciser of judicial authority. However, chapter IX regarding judicial authority also provides for KY. According to the original intent of the reformers of the Constitution, the idea for the formation of KY emerges due to the rampant deviations committed by judges, requiring oversight by an external constitutional institution. Such external oversight, in the formulation of the Constitution, is in fact stated in the sentence “to maintain and preserve the honor, dignity, and conduct of judges”. KY interprets that such external supervision can only be performed properly by examining the implementation of judicial authority in deciding cases , in evaluating whether or not there is a violation contradictory to the code of ethics, honor, and dignity of judges. In implementing such supervision, KY has summoned judges trying or making decisions on cases by examining the examining methods and the decisions made and then assessing the aforementioned decisions. Supreme Court justices were of the opinion that this violates the independence of judges and even degrades their dignity. Therefore, 32 Supreme Court justices filed a petition for judicial review on the judicial Commission Law concerning the oversight conducted, which was deemed to violate the 1945 Constitution. The main point of the petition filed by the 32 Supreme Court justices is the request for the exclusion of Supreme Court justices an object of KY’s supervision of Supreme Court justices be declared unconstitutional. In that Constitutional judges be included as an object of KY’s supervision.
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Conclusion
The presence of a Constitutional Court in a new democracy, as an institution needed to strengthen and protect human right in a transitional period, requires a prudent and intelligent approach to avoid confrontations which are highly detrimental to the strengthening of its existence. MK must consider the opposition voiced by politicians and other state administrators who do not accept MK’ s decisions so as not to relapse to the condition similar to the one prior to the reform era. Institutional strengthening by applying natural methods requires strategic approaches to certain cases, which are not only based on populist opinions. The progress made by the Indonesian Constitutional Court in the last three years has been remarkable, yet also caused a concern for many people and politicians. Such condition must be addressed prudently by the judge of the Constitutional Court.. Prudence is needed to avoid being trapped in compliments and to carry out the action plan to gain public opinion that is favorable for the achievement of a consolidated democracy through the existence of MK, which serves as the checks and balances mechanism in a sound state administration system.
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Between Scylla and Charybdis1 and Slippery Slopes
Professor Vicki Waye Law School University Of South Australia Australia
AUSTRALIA’S APPROACH TO DANGEROUS INDIVIDUALS Unfortunately there are a small number of individuals in this world who are severely anti-social.2 They are not amenable to treatment by medication or other psychiatric intervention. Yet their antecedent criminality demonstrates a propensity for dangerousness that warrants their permanent incapacitation or at least their exclusion from civil society until they no longer pose a threat to the community. In many respects, society’s fear of these anti-social individuals and its disillusionment with the capacity of the corrections system to rehabilitate them is reflected in increasingly punitive sentencing.3 Provision for indefinite sentencing or extremely long sentences which make it unlikely that dangerous offenders will ever be released is now common.4 Some jurisdictions have gone one step further and adopted preventative detention premised upon an offender’s potential to commit future harm.
Preventative detention of individuals who have already completed sentences proportional to the harm their crimes inflicted is, however, antithetical to many precepts of liberal democracy,5 contrary to
1 Homer’s Odyssey refers to Odysseus being caught between Scylla (a six-headed monster) and Charybdis (a whirlpool). 2 For example, Charles Sobhraj , Ted Bundy, John Gacy, Jeffery Dahmer, Raman Raghav, Harold Shipman 3 Paul H Robinson ‘Punishing Dangerousness: Cloaking Preventative Detention as Criminal Justice’ (2001) 114 Harvard Law Review 1429. 4 Eg s 65 Sentencing Act (NT); Part 10 Penalties and Sentences Act 1992 (Qld); ss 18A – C Sentencing Act 1991 (Vic); Part 14 Sentencing Act 1995 (WA); Part 2 Div 3 Criminal Law (Sentencing) Act 1988 (SA); s 19 Sentencing Act 1997 (Tas); s 61 Crimes (Sentencing Procedure) Act 1999 (NSW). Note however that the application of these provisions is reserved for exceptional cases where it is demonstrably necessary to protect society from physical danger. Otherwise the principle of proportionality in sentencing should prevail: McGarry v The Queen (2001) 207 CLR 121; Thompson v The Queen (1999) 165 ALR 219; Veen v R (No. 2) (1988) 164 CLR 465 at 472. 5 Richard L Lippke ‘No Easy Way Out: Dangerous Offenders and Preventative Detention’ (2008) 27 Law and Philosophy 383 at 397.
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fundamental tenants of criminal justice,6 and potentially in breach of international human rights obligations.7 There are other more pressing pragmatic problems, not least of which is the difficulty of accurately predicting future human behaviour and, in particular, dangerousness.8 Designing a process which fairly and accurately investigates the question of dangerousness, and militates against the natural tendency to engage in the over inclusiveness that the fear of dangerousness generates has also proven to be problematic.9 Moreover, the efficacy of preventative detention as a means of reducing heinous forms of offending has yet to be proven.10
Consequently, navigating between the utilitarian goal of preventing probable serious and irreparable harm, and the principle of protecting individual liberty from undue encroachment is fraught, and as the title to this paper suggests much like navigating between Scylla and Charybdis. Nonetheless, a number of state Australian parliaments have forged ahead, and like Odysseus who chose to pass by Scylla and sacrifice a few sailors rather than the whole crew, enacted legislation, which allows the courts to make continuing detention orders where there is a serious risk of re-offending for particular classes of offences.11 Two Australian High Court decisions, Kable v Director of Public Prosecutions12 and Fardon v Attorney-General13 have examined the constitutional validity of these enactments.
The argument that preventative detention is per se unconstitutional was rejected by the High Court in Fardon v Attorney-General. Earlier Kable v Director of Public Prosecutions had invalidated the Community Protection Act 1994 (NSW), an Act which applied solely to Gregory Kable and empowered the Supreme Court of New South Wales to make an order for detention if satisfied on reasonable grounds that it was probable that he would commit a serious act of violence. A majority of the High Court found that the Act invested the State Supreme Court with powers which were incompatible with
6 Bernadette McSherry ‘Sex, Drugs and “Evil” Souls: The Growing Reliance on Preventative Detention Regimes’ (2006) 32 Monash University Law Review 237 at 269 - 272; Malcolm M Feeley ‘Actuarial Justice and the Modern State’ in Gerben Bruinsma, Henk Elffers & Jan de Keijser (eds) Punishment, Places and Perpetrators (2004) at 62. 7 Patrick Keyzer ‘The“Preventative Detention” of Serious Sex Offenders: Further Considerations of the International Human Rights Dimensions’ (2009) 16 Psychiatry, Psychology and Law 262; Patrick Keyzer & Sam Blay ‘Double Punishment? Preventative Detention Schemes Under Australia Legislation and their Consistency with International Law: The Fardon Communication (2006) 7 (2) Melbourne Journal of International Law 407. 8 Victoria Sentencing Advisory Council High Risk Offenders: Post-Sentence Supervision Orders and Detention (2007) at 2.2; Cynthia Calkins Mercado & James RP Ogloff ‘Risk and the Preventative Detention of Sex Offenders in Australia and the United States’ (2007) 30 International Journal of Law and Psychiatry 49; Bernadette McSherry above n 6 at 266 – 268; Norbert Nedopil ‘The Boundaries of Courtroom Expertise’ (2002) 13 (3) Journal of Forensic Psychiatry 494 9 Eric S Janus ‘Sexual Predator Commitment Laws: Lessons for Law and the Behavioral Sciences’ (2000) 18 Behavioral Sciences and the Law 5 at 17. 10 The majority of violent and sexual offences are committed by family members and often go unreported: Victoria Sentencing Advisory Council High Risk Offenders: Post-Sentence Supervision Orders and Detention (2007) at 2.2.6. See further James Vess ‘Preventative Detention Versus Civil Commitment: Alternative Policies for Public Protection in New Zealand and California’ (2005) 12 Psychiatry, Psychology and Law 357 at 364. 11 Crimes (Serious Sex Offenders) Act 2006 (NSW); Dangerous Persons (Sexual Offenders) Act 2003 (Qld); Dangerous Sexual Offenders Act 2006 (WA); 12 (1996) 189 CLR 51 13 (2004) 223 CLR 575
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its dual role as a repository of state and federal jurisdiction. According to the majority, the law impaired the institutional integrity of the State Supreme Court by granting it powers that resulted in the court having the appearance of ‘rubber stamping’ an executive detention order.14
The legislation examined in Kable was distinguished by the High Court in Fardon. The Dangerous Prisonsers (Sexual Offenders) Act 2003 (Qld) considered in Fardon was an Act of general application that reposed a substantial degree of discretion upon the court as to whether an order should be made, and if so the type of order that should be made (including release under supervision). The court’s discretion was to be exercised according to a justiciable standard, namely whether the defendant posed a serious danger to the community, which was informed by specified (that is clear and known rather than arbitrary) factors. The rules of evidence applied to applications for an order, and hearings were open to the public and run in accordance with ordinary judicial processes. There was also an inbuilt right of appeal. As a result, the High Court upheld the preventative detention of dangerous sexual offenders facilitated by the Queensland legislation.
Fardon v Attorney- General constitutes a qualification of former statements from the High Court that detention ‘exists only as an incident of the exclusively judicial function of adjudging and punishing guilt’. 15 However, arguably condoning preventative detention and other preventative measures restricting movement and association has created a ‘slippery slope’ which threatens to blur the distinction between punishment and protection, and makes it easier to extend preventative measures to persons not proven to have committed any crime. Fardon certainly appeared to provide a stronger than otherwise imprimatur for Australian legislatures to apply preventative detention to persons suspected of engaging in terrorism.16 Although these have yet to be fully tested, the High Court decision of Thomas v Mowbray,17 which upheld the constitutional validity of another preventative measure, the control order (limiting movement, communication and association), indicates that: (a) provided a reasonable and necessary link can be drawn between preventative detention and a relevant legislative power; and (b)that the legislation empowering the court to make the detention order does not dictate the outcome of proceedings but leaves the matter to be determined by a court based on legally enforceable standards, that preventative detention orders for suspected terrorists who have yet to commit any crime will also be valid.18 For the High Court the creation of preventative measures even
14 (1996) 189 CLR 51 at 106 per Gaudron J; at 121 per McHugh J & at 134 per Gummow J. See further Forge v ASIC (2006) 228 CLR 45 at [63 – 64] and Director of Public Prosecutions v George (2008) 102 SASR 246 at [104]. 15 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27. See further comments of Gleeson CJ in Thomas v Mowbray (2007) 233 CLR 307 at [18]. 16 Part 2A Terrorism (Police Powers) Act 2002 (NSW); Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT); Terrorism (Emergency Powers) Act (NT); Terrorism (Preventative Detention) Act 2005 (Qld); Terrorism (Police Powers) Act 2005 (SA); Terrorism (Preventative Detention) Act 2005 (Tas); Terrorism (Community Protection) Act 2003 (Vic); Terrorism (Preventative Detention) Act 2006 (WA); Div 105 Criminal Code (Cth). 17 (2007) 233 CLR 307. 18 In Thomas v Mowbray no evidence was led to show that Thomas had engaged in any terrorist linked activities since his return from Afghanistan 18 months earlier: Andrew Lynch ‘Thomas v Mowbray: Australia’s ‘War on Terror’ Reaches the High Court’ (2008) 32 Melbourne University Law Review 1182 at 1187.
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when applied to the innocent was largely a political matter provided the application of such measures was left to an independent and impartial judiciary.19 However, given that the evidence relied upon by the Australian Federal Police to support the control order in this instance, an interview tainted by involuntariness, had earlier been excluded in criminal proceedings against Thomas by the Victorian Court of Appeal, and that a jury had acquitted him of the charges which constituted the very allegations proffered to demonstrate his dangerous terrorist tendencies, manipulation of the court hearing the application for the control order is debatably still open for conjecture.20 Further, that blurring of punishment and protection referred to earlier is underscored by the lack of any evidence supporting the efficacy of preventative detention or control orders. There is nothing to suggest that control orders over neophytes like Thomas have made an impact on Australia’s national security or that the encroachment upon civil liberties that they impose has led to higher levels of public safety elsewhere.21 Consequently, one wonders what evidence was led to demonstrate that the making of the order in Thomas v Mowbray would substantially assist in preventing a terrorist act.22
OUTLAWING CRIMINAL ORGANISATIONS The new battleground over risk based approaches to public safety has now shifted to organised crime legislation.23 Politically, this legislation was precipitated by an increase in violence among outlaw motorcycle gangs, including a very shocking incident at an Australian airport where one bike gang member was beaten to death in front of horrified onlookers.24 However, the legislation, in fact, applies to any organisation involved in serious crime,25 and as one commentator has remarked has the potential to ban any organisation that, ‘in the eyes of the Attorney-General (commenting on the SA legislation), is seen as a ‘risk to public safety and order.’26
The legislation introduces a series of control orders whereby members of outlawed organisations can be prohibited from associating or communicating with each other; can be prohibited from entering certain
19 (2007) 233 CLR 307 at [108] per Gummow & Crennan JJ. 20 Lynch (2008) above n 18. 21 Ibid at 1194. 22 This is a pre-condition for the making of a control or preventative order in all Australian legislation. 23 Crimes (Criminal Organisations Control) Act 2009 (NSW); Serious and Organised Crime (Control) Act 2008 (SA). The South Australian legislation is currently under challenge in the SA Supreme Court. On 11 June 2009 the Northern Territory government introduced the Serious Crime Control Bill 2009 into Parliament. Queensland is planning similar legislation: Jeremy Pierce ‘Motorcycle gang laws will be watertight, says Anna Bligh’ Courier Mail August 24, 2009 available at http://www.news.com.au/couriermail/story/0,23739,25970082-3102,00.html [accessed 3rd September 2009]. 24 Karlis Salna ‘Anti-Bikie Laws ‘Will Spark Violence’ Sydney Morning Herald August 5, 2009 available at http://news.smh.com.au/breaking-news-national/antibikie-laws-will-spark-violence-20090805-e9zk.html [accessed 3rd September 2009]. 25 Hence the legislation could apply to small, informally organised groups such as gangs of alleged organised shoplifters and indeed any organisation which the government regards as ‘criminal.’ It could also apply to organisations such as Greenpeace whose members sometimes break the law such as the law of trespass to publicise their message. 26 Andreas Schloenhardt ‘Mafias and Motorbikes: New Organised Crime Offences in Australia’ (2008) 19 Current Issues in Criminal Justice 259.
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premises or vicinities; or, prohibited from possessing certain articles. Additionally, the New South Wales legislation provides that the effect of the control orders is to revoke any license or authority the subject of the order may have had to carry on a prescribed activity such as selling or repairing motor vehicles, operating a tow truck, operating a pawn broking business, selling liquor or acting as a security agent. 27 Thus we have moved down the slope from locking up persons proven to be capable of inflicting serious harm, to locking up or seriously infringing upon the liberty of persons suspected of inflicting future harm to creating guilt by association.
The legislation operates in two stages. First, the Police Commissioner is empowered to apply for a declaration that a particular organisation is a ‘declared organisation’. In New South Wales the application must be made to a Supreme Court judge, but in South Australia the application is made to the Attorney-General (a member of the State government). The Judge or the Attorney-General must be satisfied that members of the subject organisation associate for the purpose of serious criminal activity and that the organisation represents a risk to the public safety of the State. Neither the Supreme Court judge nor the Attorney-General are bound by the rules of evidence and reasons for their determinations do not have to be given (except on an application for review).28
Second, once an organisation is a ‘declared organisation’ a Magistrate (in SA) or a Supreme Court judge (in NSW) may make a control order against any member29 of the organisation or person regularly associating with members of the organisation, or a person who has engaged in serious criminal activity and regularly associates with persons who engage in serious criminal activity. When making the control order, in South Australia, the Court is directed to consider whether the defendant’s behaviour and antecedents demonstrate a risk that the defendant will engage in serious criminal activity, the extent to which the order will prevent the defendant engaging in serious criminal activity, any legitimate reason the defendant may have for associating with any specified person, and any other relevant factor.30 However in New South Wales, the Court must merely be satisfied that there are ‘sufficient grounds’ to make the control order.31 The burden of proving that an association is legitimate, and therefore that an exemption from the control order should apply, lies upon the defendant.
Disturbingly, in South Australia no information provided by the Police Commissioner to the Attorney- General can be disclosed to any person including the organisation and its members, the subject of the declaration.32 Likewise during an application for a control order to the Court the Commissioner is not
27 S 27 Crimes (Criminal Organisations Control) Act 2009 (NSW). 28 S 13 Crimes (Criminal Organisations Control) Act 2009 (NSW); s 13 Serious and Organised Crime (Control) Act 2008 (SA). 29 The definition of member is very broad and includes ‘prospective members’ and persons who identify themselves as belonging to the organisation: s 3 Serious and Organised Crime (Control) Act 2008 (SA); s 3 Crimes (Criminal Organisations Control) Act 2009 (NSW). 30 S 14 Serious and Organised Crime (Control) Act 2008 (SA) 31 S 19 (3) Crimes (Criminal Organisations Control) Act 2009 (NSW). 32 S 13 (2) Serious and Organised Crime (Control) Act 2008 (SA).
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required to disclose any information which the Commissioner regards as criminal intelligence and once the Commissioner makes that determination, the Court must take steps to protect its confidentiality.33
In New South Wales, the Court may determine that relevant information should be protected from disclosure. Once that determination is made, the Court must take steps to maintain the confidentiality of the information.34 The NSW legislation probably differs in this respect from the earlier SA legislation as a result of the High Court decision in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police.35 In that case the High Court rejected a challenge to anti-fortification legislation providing for the non- disclosure of certain information upon a Supreme Court review of a removal notice because the decision to maintain secrecy was confined to instances where the Court determined that disclosure may prejudice the operations of the Commissioner. If the section gives the Commissioner unilateral power to determine the existence of such prejudice as the South Australian legislation appears to do, it may illegitimately constrain the independent performance of the Court’s review powers.
Another problem with the South Australian legislation is that it provides that the Court must make a control order if satisfied that the defendant is a member of the declared organisation,36 whereas in New South Wales the legislation provides that the Court may make a control order.37 This suggests that the Court, like the Court in Kable has been endowed with the role of a rubber stamp. However, in Director of Public Prosecution v George38a similarly worded provision was held to be permissive rather than mandatory such that the term ‘must’ had to be interpreted as ‘may’ and so it was found that the Court’s discretion was not usurped. Even so, it remains difficult to see how the court itself will balance liberty of person and security of person in a hearing where the defendant bears the onus of proving that an order should not be applied when the evidence supporting the application against the defendant remains secret.
Like the preventative measures considered in Thomas v Mowbray and the orders for preventative detention examined by Fardon the efficacy of control orders in the fight against organised crime is open to question. Similar legislation has been operating elsewhere and has apparently resulted in more not less public violence. According to a submission given to the Queensland government, (also considering enacting organised crime legislation), when comparable laws were introduced into Canada bike gang related violence escalated rather than decreased and there has been no appreciable decline in Canadian
33 S 21 Serious and Organised Crime (Control) Act 2008 (SA). 34 S 28 (3) Crimes (Criminal Organisations Control) Act 2009 (NSW). 35 (2008) 234 CLR 532. Similarly in K-Generation Pty Ltd v Liquor Licensing Court (2009) 252 ALR 471, the High Court rejected a challenge to s 28A Liquor Licensing Act 1997 (SA) which protected information classified as ‘criminal intelligence’ by the Police Commissioner from disclosure in liquor licensing hearing. Under s 28A (5b) Liquor Licensing Act 1997 (SA) in its own proceedings the court determined whether the information was criminal intelligence. Consequently it was held that the Court was not being dictated to by the government but retained a discretion to maintain confidentiality. 36 S 14 (1) Serious and Organised Crime (Control) Act 2008 (SA). 37 S 14 Crimes (Criminal Organisations Control) Act 2009 (NSW). 38 (2008) 102 SASR 246.
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organised crime since their inception.39 Others have commented that the provisions only target the most visible and easily targeted groups and that they fail to capture sophisticated loosely based criminal networks that do not depend upon hierarchical structures and public displays of solidarity.40This was also the view of the Australian Parliamentary Joint Committee on the Australian Crime Commission which recently examined various State legislative responses to organised crime and in particular, the model adopted by the Serious and Organised Crime (Control) Act 2008 (SA).41 Indeed, the Report quoted from a number of submissions disapproving the transplantation of the terrorism model of legislation examined in Thomas v Mowbray to organised crime.42 While stopping short of outright condemnation of the SA model, the Committee’s report preferred the individual targeting of high risk criminals similar to the United Kingdom’s Serious and Organised Crime Prevention Orders (SPCOs).43 If one accepts that as the Parliamentary Joint Committee appeared to accept that the measures outlined in the organised crime legislation are ineffective then it becomes less difficult to conclude that their raison d’être is punitive and that the extension of criminal liability to group participation is both dangerous and unwarranted. It seems that only when our appellate courts are also prepared to make that leap that they will abandon their ‘virulent strain of legal positivism’44 and characterise these measures as unlawful bills of attainder.45
39 Bond University Media Release 24 April 2009 quoting Professor Paul Wilson available at http://www.fullstory.com.au/html/s02_article/article_view.asp?article_id=571&nav_cat_id=-1&nav_top_id=-1. Similar comments are found in Australia Parliamentary Joint Committee on the Australian Crime Commission Report on Legislative Arrangements to Outlaw Serious and Organised Crime Groups (August 2009) at 4.89 – 4.91. 40 Andreas Schloenhardt (2008) above n 26 at 278. 41 Australia Parliamentary Joint Committee on the Australian Crime Commission Report on Legislative Arrangements to Outlaw Serious and Organised Crime Groups (August 2009) at 2.108. 42 Ibid at 4.119 – 4.122. 43 Ibid at 4.188 & 6.113. 44 Paul Fairall and Wendy Lacey ‘Preventative Detention and Control Orders under Federal Law: The case for a Bill of Rights’ (2007) 31 University of Melbourne Law Review 1072 at 1073. 45 Polyukohvic v Commowealth (1991) 172 CLR 501 holding that the doctrine of the separation of powers prohibited the Federal legislature from providing for the legislative or executive adjudication of guilt and the imposition of punishment.
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Supplemental Papers
Received after original publication of the booklet. Codes and Constitution in Argentina: A Difficult Marriage
Roberto Saba Dean and Professor at Palermo University School of Law Professor at University of Buenos Aires Law School Argentina
Argentina´s legal culture is a hybrid one. The national legal system was constructed after the independence revolution in the mid-19th Century under the influences of both the continental European legal system and the American Constitutional law model. The impact of the latter can be seen not only in the fact that the form of government and the bill of rights established in Argentina’s Constitution were pretty much inspired in the American Constitution, but also because the judicial review system resembles the own established in the US particularly after Marbury v. Madison (except for the not minor detail that Argentina does not recognized the rule of precedents). It is not usual, and probably sort of unique, that a legal system so much immerse in the Civil Law Tradition combines with such constitutional law regime.
The civil law tradition has had a pervasive impact on the country’s legal structures, shaping our codes, our judicial practice, our legal education system and method of teaching, our procedures for the selection of judges, our underestimation of the role of precedents, and our conception of what the law is and how justice is made. Probably because of these reasons there is a generalized impression in the legal community that Argentina belongs to the family of civil law countries, as opposite to those from the common law.
Almost at the same time the Civil Code was written – mid 19th Century –, the Constitution was signed by all states. Shortly after, the Supreme Court, in the Sojo case, extremely similar to Marbury v. Madison, decided that judges had the power to check on the constitutionality of laws when a case was brought before them. In addition to this, cases decided by the Supreme Court began to be published since the very first year of the establishment of the Highest Court of the land – what is a very unusual practice for a civil law country. Interesting enough, the introduction to the first volume of these decisions is amazingly similar to the one that appeared in the first volume of the US Supreme Court’s decisions, both justifying the enterprise in the need for citizens to know what the Constitution says according to what judges say its meaning is.
By then, Codes and Constitutions were supposed to live together, peacefully and harmoniously. This ideal was never achieved. Argentinean legal system and legal and political institutions became the battlefield in which both traditions silently fought – and still fight against each other today – for dominance. It is clear to me that the civil law tradition is winning this battle. This victory, that may not be forever but has been present for more than a Century, manifests itself in our formalist legal education, in the belief that judges decide cases according to the Codes with no interference of value judgments in the process of adjudication, in the very few cases in our legal history in which Codes provisions were found against the Constitution and invalidated, in the expectation that our Supreme Court Justices must be experts in different “areas” of law (that correspond with the different Codes) and not necessarily in Constitutional Law, in the little value we assign to precedents, an so on.
Argentina’s constitutional democracy has not been able to establish and to settle a strong and durable constitutional tradition. This is probably related to the lawlessness culture that has dominated most of our history, the anomy, as Professor Carlos Nino calls it. The Constitution is most of the time regarded as the expression of good wishes, a set of principled aspirations, but not as the hard law that limits the power of the majority of the people expressed through the political branches of government. Our political system is, in some way, in fact, more “democratic” than “constitutional.” Our law students take one course on Constitutional Law in first year and there is hardly another mention or reference to the Constitution during their years in law school in no other course, particularly in those in which they are taught the Codes, as if the law is just what the Codes “evidently” say. The typical civil law professor does not seem to see the need for introducing constitutional questions in her courses, not to say cases in which the tension between the code and the constitution arises. Something similar seems to happen to judges, with the exceptional case of the Supreme Court… most of the time.
Therefore, there is an important question to ask ourselves and that is whether we could find an explanation for our weak constitutional tradition in the relative defeat of the constitutional aspect of our legal system by the overwhelming cultural influence of the civil law tradition and its assumptions about what the law is, how it is conceived and constructed, how justice is made, and how dominant the political branches are or should be in the political system. If this is the case, I believe that we should explore ways by which the constitutional side of our legal system may be reinforced and strengthened. I do not think that the framework for this discussion should be one that tries to point out to the differences between the civil law tradition and the common law tradition, but one that addresses the tensions between the civil law tradition and (the American type of) constitutionalism, both at the roots of Argentina’s legal system and legal culture. which the tension between the code and the constitution arises. Something similar seems to happen to judges, with the exceptional case of the Supreme Court… most of the time.
Therefore, there is an important question to ask ourselves and that is whether we could find an explanation for our weak constitutional tradition in the relative defeat of the constitutional aspect of our legal system by the overwhelming cultural influence of the civil law tradition and its assumptions about what the law is, how it is conceived and constructed, how justice is made, and how dominant the political branches are or should be in the political system. If this is the case, I believe that we should explore ways by which the constitutional side of our legal system may be reinforced and strengthened. I do not think that the framework for this discussion should be one that tries to point out to the differences between the civil law tradition and the common law tradition, but one that addresses the tensions between the civil law tradition and (the American type of) constitutionalism, both at the roots of Argentina’s legal system and legal culture.