August 27, 2010
Judicial Appointment Process in Kansas Under Fire
A group of Kansans this week challenged the selection and appointment process for Kansas Supreme Court justices under the Fourteenth Amendment Equal Protection Clause. Plaintiffs argue that the process deprives them of their fundamental right to vote and seek to halt the process for the replacement of Chief Justice Robert Davis, who retired on August 3 and passed away on August 4. Here's the complaint; here's the motion for a temporary restraining order and preliminary injunction.
The process, set out in Article III, Section 5, of the Kansas Constitution, provides that the governor shall appoint a replacement from among three persons nominated by the nominating commission. If the governor fails to make the appointment within 60 days of the nomination, the chief justice of the supreme court makes the pick.
Here's the (non-attorney) plaintiffs' problem: the nominating commission consists of nine members, five of whom, including the chief, are elected only by Kansas attorneys. (Non-attorneys get to elect the other four members.) Kansas Const., Article III, Section 5(e).
According to the motion, "[a]s a result, Plaintiffs are denied the franchise in the elections for the Commission members and their participation in the selection of state judges is much inferior to that of attorneys."
August 25, 2010
Women's Equality Day
A Joint Resolution of Congress in 1971 designated August 26 as Women's Equality Day. It's the date that the Nineteenth Amendment, ratified by the requisite number of states on August 18, 1920, became effective. the Resolution provides:
WHEREAS, the women of the United States have been treated as second-class citizens and have not been entitled the full rights and privileges, public or private, legal or institutional, which are available to male citizens of the United States; and
WHEREAS, the women of the United States have united to assure that these rights and privileges are available to all citizens equally regardless of sex; and
WHEREAS, the women of the United States have designated August 26, the anniversary date of the passage of the Nineteenth Amendment, as symbol of the continued fight for equal rights: and
WHEREAS, the women of United States are to be commended and supported in their organizations and activities,
NOW, THEREFORE, BE IT RESOLVED, the Senate and House of Representatives of the United States of America in Congress assembled, that August 26th of each year is designated as Women’s Equality Day, and the President is authorized and requested to issue a proclamation annually in commemoration of that day in 1920, on which the women of America were first given the right to vote, and that day in 1970, on which a nationwide demonstration for women’s rights took place.
To commemorate the holiday, try this multiple choice question:
In 1971, who said, "The more education a woman has, the wider the gap between men's and women's earnings for the same work."
a. Ruth Bader Ginsburg
b. Sandra Day O'Connor
c. Patsy Mink
d. Pat Nixon
Constitution and Criminal Justice Conference at FSU
More information and registration information here.
It's Final: Jean's Out of Haiti's Presidential Race
An attorney from the Haitian electoral commission's legal department told the BBC that the commission's rejection of Wyclef Jean's candidacy for president is final. According to the attorney, the country's election law states that commission decisions cannot be appealed. We posted on Jean's candidacy and the constitutional requirements here and here.
Jean earlier indicated that he would appeal the commission's ruling. But it was never clear that a rejected candidate could appeal a commission ruling. And because the commission didn't publish reasons for its decision, any appeal would have been difficult, to say the least. (Jean submitted papers showing that he met the constitutional five-year residency requirement, but it's not clear that the commission rejected him on this basis.)
The commission also rejected 14 other candidates, including the Haitian ambassador to the U.S. It certified 19 candidates.
August 24, 2010
South Africa's Public Information Bill
President Jacob Zuma and the ruling African National Congress are reportedly pushing a bill designed to classify--and limit access to--certain government, commercial, and personal information. But opponents of the measure argue that the government could use the bill to crack down on media, with which the government has had increasingly strained relations. AllAfrica.com reported most recently here and here.
The measure, called the Protection of Information Bill, provides for classification of information by any "head of an organ of state" and for punishment of individuals who release classified information. At its most sweeping, the bill provides for classification of "sensitive information"--"information which must be protected from disclosure in order to prevent the national interest of the Republic from being harmed." Sec. 14.
And what is the "national interest"? Among other things, "all matters relating to the advancement of the public good." Sec. 15(1)(a).
The bill provides for an appeal of a denial of a request for reclassification, but only to the "Minister of the organ of state in question." Sec. 32. It also outlines in broad terms the principles to be applied in the classification and declassification processes--for example, to respect the South African constitutional right to access to information.
The bill has come under heavy criticism by media advocates and non-governmental organizations as paving the way for government intimidation and harassment of a South African media that is increasingly critical of excesses and self-dealing by government officials. The bill provides up to 25 years imprisonment for obtaining or releasing "sensitive information" (as defined above) if the disclosure may "cause serious or irreparable harm to the national interests of the Republic." Sec. 39(1)(b)(i). Lesser sentences may be imposed for less serious harms.
The ANC is also considering adding a media tribunal that would regulate print media, although that proposal is not (yet) part of the bill before Parliament.
President Zuma defended the measures in a letter on the ANC on-line newsletter ANC Today. Zuma turned the focus on the media, asking
[W]hat is the role of the media in the promotion of our country's human rights culture and the Bill of Rights? Does it have a role in promoting nation building? Does it have a role to play in the promotion of our country's prosperity, stability and the well-being of its people? Is it a spectator, or does it have vested interests and an agenda, political and commercial, that it cherishes and promotes?
And: "The media has put itself on the pedestal of being the guardian. . . . [W]ho is guarding the guardian?"
The South African Constitution contains capacious rights to expression and information. Section 16, Freedom of Expression, states:
(1) Everyone has the right to freedom of expression, which includes
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hate that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
Section 32, Access to Information, states:
(1) Everyone has the right of access to
(a) any information held by the state; and
(b) any information that is held by another person and that is required for the exercise or protection of any right.
(2) National legislation may be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.
Neither Section 16 nor Section 32 is nonderogable, and both are subject to the limitation-of-rights provision in Section 36 that outlines principles and factors to determine when the government may limit rights.
August 23, 2010
Haitian Electoral Commission Rejects Jean, Others
The Haitian electoral commission late Friday rejected Wyclef Jean and 14 other candidates for president in the November election. Jean said he would appeal the ruling, although it's not clear that the ruling can be appealed. The Christian Science Monitor reports here; the New York Times reports here.
As we posted just before the commission issued its ruling, Jean's qualifications were in doubt because, according to some, his frequent travels outside Haiti meant that he failed to satisfy the Haitian constitutional requirement that a candidate reside within the country for five consecutive years prior to the election. Jean argued that he traveled as a goodwill ambassador for Haiti but maintained residence in the country and thus satisfied the five-year residency requirement.
The commission didn't say why it rejected Jean and the 14 others, including Haiti's ambassador to the U.S., Raymond Joseph.
August 22, 2010
Australia's Election Inconclusive
Update: September 7, 2010: Gillard forms Government.
Gillard (pictured right with the US Ambassador to Australia, Jeff Bleich via) is the current Prime Minister of Australia- - - and first woman PM - - - who assumed power after Kevin Rudd's resignation.
The election has been inconclusive for either of the major parties, with independents and the Green Party winning seats in Parliament's House of Representatives. This is not dissimilar to the election in Great Britain last May.
The constitutional process of forming a government, including the Prime Minister, is helpfully explained by the Parliament as follows:
The Prime Minister is appointed by the Governor-General [the Queen's Representative] who by convention under the Constitution, must appoint the parliamentary leader of the party, or coalition of parties, which has a majority of seats in the House of Representatives. This majority party becomes the government and provides the ministers, all of whom must be members of Parliament.
The Federal Executive Council, referred to in the Constitution, comprises all ministers, with the Governor-General presiding. Its principal functions are to receive ministerial advice and approve the signing of formal documents such as proclamations, regulations, ordinances and statutory appointments.
Australia operates under a Cabinet system of government. The Cabinet, not mentioned in the Constitution, is the key decision-making body of the government and comprises senior Government Ministers. The decisions of Cabinet are given legal effect by their formal ratification by the Federal Executive Council.
Good reporting and updates can be found at the Sydney Morning Herald.