Constitutional Law Prof Blog

Federal Complaint for Unconstitutional Sex Assignment Surgery on Infant

The surgical "assignment" of sex/gender to an infant born with "ambiguous" genitals is a problem that has garnered much attention.

The Constitutional Court of Colombia issued a series of opinions beginning in 1995, analyzed in a 2004 law review article by Kate Haas, Who Will Make Room for the Intersexed?, that recognize a constitutional right of children, albeit limited, with regard to the surgery.  A ground-breaking symposium issue of Cardozo Journal of Law & Gender in 2005 engages with many of the legal issues and proposed solutions, often recognizing the limits of constitutional remedies in the United States given that the surgeries are usually the result of private action.

But a complaint filed this week, M.C. v. Aaronson, by the Southern Poverty Center claims a violation of both substantive and procedural due process under the Fourteenth Amendment by South Carolina doctors who performed genital surgery on a child in state custody (foster care).  M.C., now 8 years old, brings the case through his adoptive parents. 

The substantive due process claim is a relatively obvious one, building on established United States Supreme Court cases finding a right to be free of coerced medical procedures including Cruzan v. Director, Missouri Department of Health (1990).  The right is a bit muddled, however, given that the highly discredited 1927 case of Buck v. Bell has never been actually overruled; the declaration that castration was as unconstitutional penalty for a crime in Skinner v. Oklahoma rested on equal protection grounds. 

The procedural due process claim is more novel, contending that the minor was entitled to a pre-deprivation hearing before the surgery.  Such a hearing would presumably be of the type that Erin Lloyd recommended for all minors (whether in state custody or not) in her article From the Hospital to the Courtroom: A Statutory Proposal for Recognizing and Protecting the Legal Rights of Intersex Children in the Cardozo Journal of Gender and Law Symposium issue. 

An accompanying lawsuit filed in state court alleges medical malpractice and failure to obtain informed consent, raising the same underlying facts and many of the same issues, but under state law.

Southern Poverty Center has produced a video featuring the parents and outlining the facts of the case:

 

 This is definitely a case to watch.

RR
[image via]

Daily Read: Larry Catá Backer on Chinese Constitutionalism

What is Chinese constitutionalism?  Larry Catá Backer's new article, Towards a Robust Theory of the Chinese Constitutional State: Between Formalism and Legitimacy in Jiang Shigong’s Constitutionalism, available on ssrn, not only provides answers to that query, but develops the topic in sophisticated and important ways.  As Backer (pictured right) notes, 

The Chinese constitutional system does not imitate those of other developed states, because it political ideology is grounded in Marxist Leninism which suggests a different relationship between the state, the people and the manner of exercising political and economic power, which over the course of nearly a century suggested what Western theorists generally viewed as the anti-constitutionalism of Soviet Stalinism and its variants.

But Backer is not content with such simplistic dismissals.  Instead, exploring the arguments of Chinese LawProf Jiang Shigong (pictured left), Backer traces different strands of Chinese constitutionalism within the context of Chinese culture and society and their possibilities for development.  Backer notes that the "critical distinction for Jiang between Chinese and Western constitutionalism lies in the willingness to fold a Party-State system within notions of substantive constitutionalism—not just in terms of legitimacy but also in terms of providing a foundation for building a governmental apparatus that provides for its people in a way functionally equivalent to that in Western democracies."

For ConLaw comparativists, Backer's article is essential reading: it situates Chinese constitutionalism in global contexts and more importantly, evaluates its various aspects in comparison to each other.  For ConLawProfs who may not consider themselves comparativists, Backer's article may be even more essential.  Backer's exploration is theoretically sophisticated, nuanced, and guaranteed to enrich any reader's thinking about the role of any constitution in any nation, including the United States.

RR

Daily Read: Not The Marrying Kind by Nicola Barker

The critique of marriage as a legal institution may seem a bit churlish as the same-sex marriage cases go to the United States Supreme Court this week.  It may seem as if there is universal agreement that marriage is "good" and the only question is whether governments can exclude same-sex couples from this "good."

Yet there is certainly a different way to conceptualize the issue.  In Not the Marrying Kind, U.K. Law Professor Nicola Barker engages the issues from several perspectives.  Importantly, her discussions do not portray the lesbian or larger LGBT communities as monolithically desiring marriage, but rather as critically engaged in questions of formal equality. She is scrupulous about presenting the complexities of opinions, theories, and strategies across several continents. Barker's book is a treat even readers who have been following these developments for years or are suffering from same-sex marriage fatigue.

I review Barker's book, as well as several other books on same-sex and opposite-sex marriage in an essay "Is Marriage Good for Women?" in this month's Women's Review of Books.

Barker's book is the best of the lot and essential reading for anyone seriously engaged in thinking about same-sex marriage.

RR

Zimbabweans Overwhelmingly Approve New Constitution

Zimbabweans voted overwhelmingly this weekend to approve a new draft constitution.  Ninety-five percent of voters cast a ballot in favor, according to the Washington Post and others.  We posted earlier here.

Now the document goes to Parliament and the president for approval and signature--ceremonial steps that'll take another 30 days or so.

The text is available here, at COPAC's web-site.

SDS

Zimbabweans Stand Ready to Approve New Constitution

Zimbabweans take to the polls this weekend to vote on a new constitution, and they're poised to approve it.  We previously posted here; Global Post reports on this weekend's vote here.

Approval requires just a bare majority vote, and despite some bumps, most seem ready to approve.  Those bumps include "anomalies" in the draft constitution and the resulting voter confusion, according to AllAfrica.com; a bar on outside poll watchers, according to VOA (and others); and even understandable pre-vote jitters among the parliamentary select committee (COPAC) that's spearheading the vote, according to Global Times.

It seems that the most significant change is to limit presidential power relative to parliament, and to impose a term limit (two five-year terms) on the president.  If voters approve the new text, as predicted, and if Mugabe wins and extends his 33-year rule, the new constitutional will allow him to extend it to just ten years, tops.

SDS

Daily Read: Lord Robin Cooke

 

Lord Robin Cooke Coat of Arms

Lord Cooke, 1926-2006, the renowned jurist now has a ssrn author page.

As his obituary in The Telegraph described him, Robin Cooke

strove to give reality to his country's commitment to biculturalism embedded in the Treaty of Waitangi, resolving Maori land claims cases and earning the highest respect from Maori elders. Following the New Zealand Bill of Rights Act (1990) he exercised a steadying hand on the legal tiller, which ensured relative social stability during reforms that culminated in the abolition of the appeals from New Zealand to the Privy Council and the establishment of a newly-created supreme court.

The Lord Cooke Project at Victoria University of Wellington (New Zealand/Aortearoa), spearheaded by law profs Joel Colón-Ríos and John Prebble has a goal to upload all of Lord Cooke’s published and unpublished papers and make them more widely accessible. 

ConLawProfs doing comparative constitutional law will be interested in Cooke's work, particularly his writings about the constitutional arrangements in colonial (especially white settler) societies with both the indigenous populations and with the colonial power.  Cooke also wrote widely on the development of the common law and the ssrn page now includes his four papers from the prestigious Hamlyn Lectures.  This is a terrific contribution since published Hamyln lectures are usually burdened with a hefty pricetag.

The Telegraph obituary also mentions that Cooke authored an article "disagreeing with the creation of a Supreme Court for the United Kingdom on the ground that the present system worked perfectly well." It would be interesting to contemplate Lord Cooke's opinions about the current UK Supreme Court, including its struggle for gender diversity.

Thanks to the work by Colón-Ríos and Prebbles, consulting and citing Lord Robin Cooke's work is now much easier.

RR

Hungary Amends Constitution, Draws Criticism of EU and US

Hungary's conservative majority has amended the constitution, according to Al Jazeera and others, drawing criticism of the President of the European Commission and the Secretary General of the Council of Europe and the U.S. State Department.

Among the controversial changes:

• A limit on the constitutional court's jurisdiction, prohibiting it from voiding constitutional amendments, except on procedural grounds;
• A limit on the president's veto power, prohibiting the president from vetoing a constitutional amendment, except on procedural grounds;
• Allowing party political broadcasts on state media only;
• Requiring students who receive state aid to remain in Hungary after graduation for a certain period;
• A ban on sleeping on the streets;
• Defining family as "marriage between man and woman."

The Council of Europe and EC said that the amendments "raise concerns with respect to the principle of the rule of law, EU law and Council of Europe standards."  The State Department shared these concerns and said that the "amendments deserve closer scrutiny and more deliberate consideration, as they could threaten the principles of institutional independence and checks and balances that are the hallmark of democratic governance."

SDS

Daily Read: On Hugo Chavez

The United States edition of Rory Carroll's Comandante: Hugo Chavez's Venezuela will be released March 7 and it makes timely reading as Americans struggle to understand the legacy of Chavez including Venezuelan constitutional law.  (Interestingly, the South African edition is subtitled  "Inside the Revolutionary Court of Hugo Chavez.")

 

Carroll is a reporter for The Guardian and the reviews of the British edition stress the fine reporting and indicate this is a book worth reading.  For example, in Literary Review: "Rory Carroll has written a well-considered and painfully fair epitaph for the Chávez regime" and in The Independent: "Rory Carroll is well positioned to provide a verdict. In good reporter fashion, he diligently tracks down his sources, turning up a colourful cast of red-shirted Chavista loyalists, bitter political opponents, and the everyday Venezuelans in between."  

RR

The Struggle for Women's Inclusion on UK's Highest Court

Three new Justices have been appointed as Justices of the Supreme Court of the United Kingdom - - - and all of them are men.

As the British Prime Minister's Office has announced, "The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom." 

As The Guardian reports, there was some speculation that these appointments were delayed by requests that the selection panel reconsider its choices to address the lack of gender diversity.  At present,  Lady Hale is the only woman Justice on the 12 person Court, a situation she has discussed.

RR

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope. - See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope. - See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope. - See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

Constitutionalizing Right to Work

Just a month after Michigan passed so-called "right-to-work" legislation--and became the 24th state to prohibit requiring employees to join a union or pay equivalent fees in a union shop--legislatures in Iowa and Virginia both upped the ante and took up provisions to amend their state constitutions to include right to work.  (The Virginia measure now appears dead.)

These aren't the first states to move to constitutionalize right to work.  Arizona has a state constitutional right-to-work provision:

Article XXV Right to Work.  Right to work or employment without membership in labor organization. 

No person shall be denied the opportunity to obtain or retain employment because of non-membership in a labor organization, nor shall the State or any subdivision thereof, or any corporation, individual or association of any kind enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of non-membership in a labor organization.

Florida does, too:

Article I, Section 6: Right to work.

The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization.  The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged.  Public employees shall not have the right to strike.

Michigan Governor Rick Snyder (R) is taking a different tack in relation to his state's constitution: he has asked the state supreme court to issue an advisory opinion on the constitutionality of the state's recently enacted right-to-work laws.  The questions: whether the new right-to-work law for the public sector interferes with the Civil Service Commission's constitutional authority, thus nullifying the law as applied to the classified state civil service; and, if so, whether the laws violate equal protection (by treating the classified civil service differently than everyone else).  There's another question: whether the new laws violate state constitutional provisions stating that a bill can't be amended to change its original purpose and that bills have to meet certain procedural requirements (including sitting in each house for at least five days, and read three times).

Snyder's move appears to be designed to short-circuit promised legal actions to halt or delay the implementation of the bills.  Getting a favorable ruling from the state supreme court would allow Snyder to implement the laws immediately.

SDS

Daily Read: Commentary on the Canada Supreme Court's R. v. N.S. ("the niqab case")

Last month's long-awaited decision in R. v. N.S. by the Canada Supreme Court considered whether or not a witness in a criminal trial had a religious right to wear a niqab during testimony. 

The Court's fractured and ultimately unsatisfying decision has prompted some excellent commentary.  A quick round-up from Sonia Lawrence at the Institute for Feminist Studies at Osgoode Hall on the day of the decision has been followed by more discussion.

Canadian ConLawProf Beverley Baines has an excellent commentary over at Jurist.  Professor Baines provides an excellent synopsis of the case and situates it within Canadian constitutional jurisprudence.  She focuses on the Court's analogy between wearing the niqab and publication ban precedent.  Importantly,  she also raises a central question raised by the particular facts in N.S.:

Identity is a complex matter in R. v. N.S.. Given that the accused assailants were her uncle and cousin, they knew the identity of the testifying victim. From N.S.'s perspective, her identity as a Muslim woman was threatened by the niqab ban. Her faith requires her to cover her face in the presence of men who are not members of her immediate family. Removing her niqab would rob her of her religious identity just as would depriving a Jewish man of his kippah, a Sikh of his turban or an Amish of his hair. Nor is the link between the niqab and the presumption of innocence transparent, despite the chief justice's repeated reference to the niqab portending a wrongful conviction. If the niqab is such a serious impediment, might wearing it not result in a wrongful acquittal? 

Professor Natasha Bakht of the University of Ottawa Faculty of Law made a similar argument over at Blogging for Equality earlier this month, stressing the relationship between religious freedom and gender equality in Canadian constitutionalism:

The majority’s decision in NS while keeping the door open for Muslim women to wear the niqab while testifying in certain situations, did not adequately consider NS’s equality or section 7 rights.  Indeed the word equality never appears in the decision! To frame NS’s claim as only rooted in religious freedom is to fundamentally misconstrue the intersectional nature of the issue at stake.  NS is a sexual assault complainant.  Asking a niqab-wearing woman to remove her veil is like asking her to remove her skirt or blouse in court. It is, literally, to strip her publicly and in front of her alleged perpetrators. We know that sexual assault is one of the most underreported crimes in Canada.  Prohibitions on wearing the niqab while giving testimony will only discourage Muslim women from participating in the justice system.

Finally, Stephanie Voudouris at The Court  attempts to "peel back" the layers of the case, again focusing on sexual assault and religious freedom, but also considering demeanor evidence.  Voudouris' discussion is lengthy and provides a solid and objective overview of the case.  But in the end, Voudouris offers a conclusion similar to Baines and Bakht, criticizing the

skewed scale on which the Court balances the harms to trial fairness against the harms to freedom of religion; a scale that may lead lower courts to ban the veil more often than not. Aside from the difficulties with the Court’s attempts to understand freedom of religion generally, this case provokes controversy because, in the words of Justice Abella, the Court is deciding these issues against the backdrop of questions about “whether the niqab is mandatory for Muslim women or whether it marginalizes the women who wear it; whether it enhances multiculturalism or whether it demeans it”, and of whether these global questions matter when a single woman comes before the court to testify against those who have assaulted her, and asks to do so in accordance with her religious beliefs.

The majority opinion seemingly leaves wide discretion to the trial judge.  It will be illuminating to learn what the judge in N.S. - - -  and in other cases - - - ultimately decides. 

 RR
[image via]

Japan Voters Split in Poll on Revising Pacifist Constitution

Voters in Japan are evenly split on revising Article 9 of the country's constitution--the article that requires a pacifist state--according to Reuters, citing a survey by the Asahi newspaper and a University of Tokyo research team.

The survey doesn't appear to foretell an actual constitutional amendment, although Reuters notes that nearly 90% of MPs favor a change to Article 9.

The constitution of Japan has never been formally altered since U.S. occupation forces drafted it in 1947.  Article 9 reads:

Renunciation of War. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.

In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained.  The right of belligerency of the state will not be recognized.

Although Article 9 by its plain terms seems to ban standing forces, Japan has dispatched troops for peacekeeping and non-combat reconstruction missions.

Under Article 96, an amendment requires a two-thirds vote in each house of the Diet and a majority vote in a national referendum.

SDS

India's Autochthonous Constitution

Professor Shivprasad Swaminathan (Jindal Global Law School) explains in The Hindu India's autochthonous constitution, and how it got that way. 

According to Swaminathan, India, like some other former British colonies, faced a problem at independence: the authority for its constitution came directly from Parliament, in the form of an Independence Act and Parliament-authorized Constituent Assembly.  As such, "the imperial predecessor's Constitution would have remained at the helm of the legal system of the newly liberated former colony despite the legal transfer of power, precisely because the transfer of power was recognised as 'legal' by the Constitution of the imperial predecessor."

India had to do something to break this chain.  So, like Ireland, Pakistan, Sri Lanka, and Ghana before it, India waged a "benign legal revolution," that is, the country deliberately incorporated "procedural errors" into its own constitution.  Swaminathan explains:

The framers introduced two deliberate procedural errors in the enactment of the Constitution of India in violation of the Independence Act: a) They did not put the Constitution to the approval of either the British Parliament as envisaged by the Cabinet Mission Plan or the Governor-General as envisaged in the Indian Independence Act of 1947; b) Following the Irish precedent, Article 395 of the Constitution of India repealed the Indian Independence Act--something the Constituent Assembly did not have authorisation to do.

The errors broke the chain between India's new post-colonial constitution and Britain, thus ensuring that Parliament could not reassert its authority and creating a truly autochthonous constitution of We the People.

The United States, of course, did not have to wage a benign legal revolution to break its chain with Britain, because it was born in armed revolution.

SDS

Tunisian Draft Constitution Draws Some Praise, Criticism

Human Rights Watch wrote last week to the Tunisian National Constituent Assembly on its second draft constitution, released December 14, 2012.  HRW faintly praised the Assembly for improvements since the first draft--dropping the criminalization on "the sacred" and any form of "normalization" with "Zionism and the Zionist state," including language that better protects equal rights of women--and sharply criticized the Assembly for continued problems.  Among the criticisms:

• The draft fails to explicitly mention international human rights conventions and fails to specify whether human rights treaties that have been ratified by Tunisia apply directly as law in Tunisia.
• The draft includes language that protects various rights, but with provisos like "as provided for by law," or some such, suggesting that "the law" has broad leeway to interpret limitations on rights.
• The State of Emergency provision, Article 73, doesn't sufficiently define limitations or protect nonderogable rights.
• The draft provides for immunity for the president during and after office for all official acts, without allowing for prosecution for war crimes.
• Anti-discrimination provisions are at odds with other provisions limiting offices like the presidency to Muslims.
• The draft has weak guarantees for the tenure of judges and thus for an independent judiciary.

HRW also outlined a series of recommended changes.

SDS

Zimbabweans to Vote on New Constitution

Zimbabwe President Robert Mugabe and Prime Minister Morgan Tsvangirai this week agreed on a final draft constitution that will go to referendum soon.

Al Jazeera, allAfrica.com, and Nehanda Radio (covering Zimbabwe news) all have reports, but the most detailed comes from RadioVop.

Among the provisions: The Attorney General's office will be divided into two new offices--an Attorney General that will sit in the cabinet and will advice the government, and a National Prosecuting Authority that will enforce the law.  (It's not clear, but this may mean that the prosecuting authority enjoys greater independence.)

The final draft constitution also tinkers with provincial governments and federalism by replacing the office of the Governor with a Head of Provincial Council, elected from among a slate provided by the the party with majority seats in that particular province, and by stating in the preamble that devolution does not imply divisionism or power or authority to secede.

The two-year effort to come up with the draft, led by the Constitution Parliamentary Committee, or COPAC, moved in fits and starts.  There may still be some details to work out before the draft is ready for referendum.  The COPAC web-site is here, but was down as of this post.  

SDS

No Aid, Establishment of Religion in Lease to Boy Scouts

A three-judge panel of the Ninth Circuit ruled this week in Barnes-Wallace v. City of San Diego that the City's lease to the Boy Scouts for property to use for youth recreational programs did not violate the California Constitution's No Aid Clause and the state and federal establishment clauses.  The plaintiffs said that the Boy Scouts prohibit atheists, agnostics, and gays and lesbians from being members or volunteers and require members to affirm a belief in God, and that a City lease to the organization on favorable terms therefore violated state and federal constitutional prohibitions on government aid to religion.  The ruling almost certainly ends this long-running case in favor of the City.

California's No Aid Clause prohibits the City from "mak[ing] an appropriation, or pay[ing] from any public fund whatever, or grant[ing] anything to or in aid of any religious sect, church, creed, or sectarian purpose . . . ."  Cal. Const. art. XVI Sec. 5.  The state Supreme Court has read into the Clause four requirements: (1) the government program must serve the public interest and provide no more than an incidental benefit to religion; (2) the program must be available to both secular and sectarian institutions on an equal basis; (3) the program must prohibit use of public funds for "religious projects"; and (4) the program must not impose any financial burden on the government.

The Ninth Circuit said the lease satisfied the four-part test.  It said that the lease was for the Boy Scouts to run youth recreational activities, not for any religious purpose; that the City leased property to scores of secular organizations; that no City funds went to "religious projects"; and that the leases weren't a financial burden on the government.  (The court said that even the favorable leases netted out to the City's benefit, because the Boy Scouts substantially improved and managed the leased property.)

The court said that both the California and federal establishment clauses turned on the Lemon test, and that the City's lease satisfied it.  The court held that the purpose of the lease was secular (to provide facilities and services for youth activities); that a reasonable observer could not conclude that the City was engaged in religious indocrination, or was defining aid recipients by reference to religion; and that the City wasn't involved at all in the management of the leased properties.

SDS

Canada Supreme Court on the Constitutionality of a Veiled Witness in Criminal Prosecution

The Supreme Court of Canada this morning has issued its long-awaited opinion in R. v. N.S., 2012 SCC 72,  essentially affirming the provincial Court of Appeal of Ontario 2010 conclusion regarding the wearing of a niqab (veil) by a witness in a criminal proceeding and dismissing the appeal and remanding the matter to the trial judge.

At issue is a conflict of rights that should be familiar to US conlaw scholars: the rights of a witness in a trial, here her religious rights, in opposition to the rights of the accused to a fair trial, including the right to confrontation of witnesses.  The accusing witness, N.S., is a Muslim woman who wished to testify at a preliminary hearing in a criminal case in which the defendants, N.S.'s uncle and cousin, were charged with sexual assault.  The defendants sought to have N.S. remove her niqab when testifying.  The judge heard testimony from N.S., in which she admitted that she had removed her niqab for a driver's license photo by a woman photographer and she would remove her niqab if required at a security check.  The judge then ordered  N.S. to remove her niqab when testifying, concluding that her religious belief was "not that strong."   This determination of the "strength" of N.S.'s belief was one of the reasons for the remand as it troubled the Supreme Court.

The majority opinion, authored by Chief Justice Beverley McLachlin (pictured) and joined by three of the Court's seven Justices, began by noting the conflict of Charter rights at issue: the witness’s freedom of religion and the accused's fair trial rights, including the right to make full answer and defence.  The opinion quickly rejected any "extreme approach" that would value one right over the over, as "untenable."  Instead, the Court articulated the Canadian constitutional law standard of "just and proportionate balance" as:

A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so.

In turn, this involved four separate inquiries:

First, would requiring the witness to remove the niqab while testifying interfere with her religious freedom as construed by section 2(a) of the Charter, which centers on a sincere (rather than "strong") religious belief?

Second, would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?  The opinion recognized the deeply rooted presumption that seeing a face is important, but noted that in litigation in which credibility or identification are not involved, failure to view the witness' face may not impinge on trial fairness.

Third, assuming both rights are engaged, the trial judge must ask "is there a way to accommodate both rights and avoid the conflict between them?"

Finally, if accommodation is impossible, the judge should engage in a balancing test, asking whether

the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?  Deleterious effects include the harm done by limiting the witness’s sincerely held religious practice.  The judge should consider the importance of the religious practice to the witness, the degree of state interference with that practice, and the actual situation in the courtroom – such as the people present and any measures to limit facial exposure.  The judge should also consider broader societal harms, such as discouraging niqab-wearing women from reporting offences and participating in the justice system.  These deleterious effects must be weighed against the salutary effects of requiring the witness to remove the niqab.  Salutary effects include preventing harm to the fair trial interest of the accused and safeguarding the repute of the administration of justice.  When assessing potential harm to the accused’s fair trial interest, the judge should consider whether the witness’s evidence is peripheral or central to the case, the extent to which effective cross-examination and credibility assessment of the witness are central to the case, and the nature of the proceedings.  Where the liberty of the accused is at stake, the witness’s evidence central and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance.  The judge must assess all these factors and determine whether the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so.

 In sending the case back to the trial judge (and instructing judges in similar situations in the future), the Court provides guidance, yet obviously falls far short of definitive answers. 

The concurring opinion of two Justices argued that a "clear rule" should be chosen.  This rule should be the removal of the niqab because a trial is a "dynamic chain of events" in which a conclusion about which evidence is essential can change. 

Justice Rosalie Abella (pictured right) wrote the solitary dissenting opinion.  On her view, while rooted in religious freedom, wearing a veil could certainly be analogized to other types of "impediments" in which the face or other aspects of demeanor might be obscured such as when a person is blind, deaf, not an English speaker, a child, or a stroke victim.  Moreover, Abella argued:

Wearing a niqab presents only a partial obstacle to the assessment of demeanour.  A witness wearing a niqab may still express herself through her eyes, body language, and gestures.  Moreover, the niqab has no effect on the witness’ verbal testimony, including the tone and inflection of her voice, the cadence of her speech, or, most significantly, the substance of the answers she gives.  Unlike out-of-court statements, defence counsel still has the opportunity to rigorously cross-examine N.S. on the witness stand. 

Abella also stressed the specifics of the case involved: a sexual assault prosecution by a young woman in which the defendants were members of her own family.

From the perspective of US conlaw scholars, whether or not interested in comparative constitutional law, the Canada Supreme Court's opinion in R. v. N.S. is an important one seeking to balance rights and addressing an issue that is percolating in the United States courts.

RR
[image of niqab via; image of Justices via Canada Supreme Court website]

In Memoriam: Arthur Chaskalson

Known as a generous and humble person, as well as an outstanding jurist, Arthur Chaskalson was a framer of the South Africa Constitution and presiding justice of the nation's inaugural Constitutional Court.

 

The NYT obituary is here; he will be accorded a state funeral in South Africa.   We previously highlighted one of his speeches here.

RR

Egypt's Draft Constitution

The Egyptian Constituent Assembly released its draft constitution early Friday.  Here are a few resources:

• The Egypt Independent posted an English translation.
• The BBC has a useful side-by-side comparison of the proposed constitution and the earlier, suspended 1971 constitution.
• Human Rights Watch posted a human rights analysis of key provisions.
• The Wall Street Journal, the New York Times, the Lede blog at the NYT, the Washington Post, and AlJazeera all have reports on developments, including protests against the draft.

The Supreme Constitutional Court is scheduled to take up the legitimacy of the Constituent Assembly on Sunday, although the Court might punt on that question while other tribunals rule on the legality of President Morsi's decree shielding his own decisions and decisions of the Assembly from the judiciary.  If Mosri's decree is unconstitutional, then the Court could take up the legitimacy of the Assembly.  In the meantime, President Morsi vowed to put the draft to a vote.

SDS

Daily Read: Emma Larkin on Burma/Mynamar

As President Obama travels to Burma/Myanmar, becoming the first United States President to do so,  most ConLawProfs will be recalling Crosby v. National Trade Council, decided by the Court in 2000.   In an unanimous decision, the Court declared unconstitutional Massachusetts' 1996 procurement statute barring the state from doing business with almost any entity "doing business" with Burma.  The Court held the state law was invalid under the Supremacy Clause because of a Congressional grant of authority to the President over any economic sanctions for Burma.  The Massachusetts law thus undermined the diplomatic powers of the President.   

The repressive history of Burma/Myanmar is essential to understanding the President's current diplomacy as well as Massachusetts' legislation in Crosby. 

And essential to Americans seeking to understand Burma is the work of Emma Larkin.  Widely regarded as one of the best books on Burma is Emma Larkin's Finding George Orwell in Burma.  In the fascinating and well-written book published in 2006, Larkin - - - not her real name - - - writes of contemporary Burma and George Orwell's history in Burma, arguing convincingly that Orwell's novel 1984 was actually modeled on Burma and continued to be relevant.   Earlier this year, Larkin wrote compellingly of the "Burma Spring" the popularity of former dissident Aung San Suu Kyi, both in an essay and in a lengthy review of Peter Popham's The Lady and the Peacock: The Life of Aung San Suu Kyi.

Obama argues that his visit is an "acknowledgment that the country is making progress toward reform."  Read Emma Larkin's book, if you haven't already done so, to discover what this might mean.

RR