December 18, 2009 · 13:55

Book Review: How old is your constitution?

[This isn’t a strictly Southeast Asia book, but it includes several case studies from Asia, including Thailand, China, and Japan]

According to murmurs in Congress (particularly from Tom Coburn’s office), there has been some debate recently about the value of political science as a discipline. As such, this seems like the perfect time for The Endurance of National Constitutions to debut. This book should be required reading for anybody in the rule of law sector, especially consultants advising governments on drafting a new constitution.

Constitutions are such a basic part of our political discourse, most of the prior scholarship has remained mired in debates over legal doctrine rather than observing the empirical data about constitutions. As such, Elkins, Ginsburg, and Melton provide the field an invaluable service with The Endurance of National Constitutions. Their study examines every single constitution written during 1789-2005 subject to a whole host of variables. In The Endurance of National Constitutions, their main concern is assessing what elements of constitutional design impact the constitution’s longevity. For example, should the ideal constitution be more specific or more general in order to maintain popular and elite support? Unlike most studies about constitutions, they are less interested in “environmental” factors (e.g., wars, coups, etc.), although they do address these variables as well. 
The results are fascinating. The authors conclude that, on average, far from providing a permanent legal basis, most constitutions only last for around 19 years. They then debunk several myths about successful constitutions by showing that three variables increase constitutional endurance significantly: 1) an inclusive constitution-drafting and ratifying process; 2) flexible amendment or interpretation procedures; and 3) greater specificity and scope. Constitutions that embrace these features will tend to survive decades longer than than those that do not. Ironically, these recommendations contradict the assumptions most American lawyers possess regarding the success of the U.S. constitution. Our constitution was 1) drafted by elite property owners; 2) requires 2/3 of Congress and 3/4 of states to amend; and 3) is relatively short and general. As such, Elkins, Ginsburg, and Melton consider the U.S. an odd outlier (in their wonderful analogy, like the 122-year-old lady who smokes and whose diet consists solely of chocolates). 
The study is based on the text of the constitutions rather than other sources of constitutionalism, such as judicial interpretation of constitutions. This poses some dangers as many constitutions, particularly the U.S. Constitution, rely upon other constitutional sources to supplement the text. For example, a textual analysis of the U.S. Constitution would suggest that the federal government has few powers and could not regulate civil rights, environmental pollution, or many other fields of modern life. Yet, the Supreme Court has interpreted the seemingly lucid and innocuous word “commerce” to include all of these subjects. The authors realize this limitation and note that such as study would require far more resources and probably be impracticable. More importantly, they make a compelling case that they are primarily interested in constitutional “design,” which concerns the original text. 
As comprehensive as I found the analysis of The Endurance of National Constitutions, I did wish the authors had included a few more variables. In particular, they do not compare constitutions by the host country’s type of legal system (e.g., common law, civil law, communist law). Some legal scholars will rightly note that civil and common law systems are converging to some extent, but I don’t think this is merely a matter of “legal taxonomy.” The classification also captures something about the country’s legal history (whether it was colonized by the French, British, etc.) that could conceivably have some impact on constitutional endurance. Also, there does seem to be some evidence that common law countries provide stronger protection for property rights and possess more independence courts. Knowing Elkins and Ginsburg’s other articles on the question of presidential versus parliamentary systems, I suspect they may not find the common/civil/communist law distinctions analytically useful, but it probably should have been addressed somewhere in the book. 
I also would have liked to have seen a bit more about the mode and median of constitutional endurance, rather than just the mean. This is especially crucial in this study because, as it turns out, the relatively small and insignificant Hispaniola (Haiti and the Dominican Republic) has produced some 7% of the world’s constitutions since 1789. In other words, these two outliers produce so many constitutions that they can affect global averages. The authors do discuss this issue in some places, but it’s important enough that it might even have been worth calculating the correlations both with all constitutions in the dataset and with the outliers or extremes removed. I suspect that without Hispaniola in the dataset, the average lifespan of a constitution would be at least a bit longer. 
Make no mistake – The Endurance of National Constitutions is probably the most important scholarly book about constitutions to come out in quite some time. Fortunately, the authors promise that The Endurance of National Constitutions is only the first book of several that they plan to release in conjunction with their Comparative Constitutions Project. In the meantime, this book will give you plenty to think about. If you haven’t decided what to get for Christmas yet, I’d definitely recommend this book.

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Filed under constitutions, James Melton, tom ginsburg, Zachary Elkins

December 11, 2009 · 14:16

"We lost our voice…"

Earlier this week, I highlighted the conflicts between national and international prosecutors in the Khmer Rouge Tribunal (KRT) and suggested that there was a real risk the Cambodian public would become disillusioned with the KRT. Unfortunately, that fear is on its way to becoming a reality.

Upon its creation, KRT adapted an innovative procedure designed to allow the victims of the Khmer Rouge to testify at trial. It was hoped that participation of these so-called civil parties would give the victims a sense of closure. This had never been attempted before in any other international criminal tribunal. And after the results at the KRT, it might never be attempted again.
Cambodians report being extremely disillusioned with the civil-party process. Many felt that the judges, prosecutors, and defense ignored their testimony. As the Duch trial went on, opportunities for civil parties to testify diminished. Further hampering the process was the fact that each civil party is represented by their own lawyers, rather than collectively. Some of these lawyers have behaved less than professionally – one even visibly rolled his eyes and yawned during another attorney’s closing argument.

The problems are highlighted by a recent profile on Chum Mey, one of the three living survivors of Duch’s notorious S-21 internment center. Chum Mey testified as a civil party against Duch. However, he felt that the judges cut off his testimony, but allowed Duch unlimited time to respond to his allegations. “So at that point,” he reports, “I felt like I did not have any rights to express my concerns, but Duch had the right to express himself.” What a cruel humiliation to impose upon a human rights victim – rather than redressing the crime, the process reinforced the power imbalance between Duch and Chum Mey. At the end, Chum Mey claims the civil parties “lost our voice… and there is no real justice for us.” As the BBC puts it:

The experience left some feeling that they’d been guinea pigs in a judicial experiment – and a number boycotted the court.

There is a silver lining in all of these grey skies – namely, that we will probably never need any ad hoc international criminal tribunals ever again. Why not? Currently, we have the International Criminal Tribunal for Yugoslavia, the International Criminal Tribunal for Rwanda, and, of course, the Khmer Rouge Tribunal, as well as a few others. The covers most of the major late-20th-century crimes against humanity. For any crimes committed after 2002, we now have the International Criminal Court.* Thus, the international community will not have to debate for decades over the structure and composition of international tribunals after each and ever violation. In theory, this will also deter future would-be Milosovices and Pol Pots.

* Well, it’s a bit more complicated. First of all, the ICC only has jurisdiction over countries that are parties to the Rome Statute – and, not surprisingly, the United States is not a party. Second, only certain crimes are delineated, and some, such as the crime of “aggression” in war, remain vague.

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Filed under Cambodia, Khmer Rouge Tribunal

December 10, 2009 · 15:06

Since when do you need martial law just to enforce the full force of the law?

When you’re in the Philippines, of course! In response to the recent political killings in Maguindanao, in southern Mindanao, President Arroyo has declared martial law in the province. The Arroyo administration cited the threat of rebellion and already charged 24 people with the charge of rebellion, including members of the politically powerful Ampatuan clan. However, Human Rights Commissioner Leila de Lima, whom  human rights activists consider a powerful advocate for their cause, has called martial law unnecessary and unjustified. In an interview with BBC, she asked the poignant question: “Our question is – since when do you need martial law just to enforce the full force of the law?”


That is actually a very difficult question to answer. I’m not steeped in the literature of martial law, but I do have a few comments. First, it is important to distinguish between martial law imposed according to constitutional authority, as opposed to extraconstitutional imposition of military rule (Burma being the best example). The Philippines Constitution is no outlier in allowing the president to declare martial law. According to Tom Ginsburg’s Comparative Constitutions Project, over 80% of constitutions have some provisions allowing the government to impose a state of emergency.

Second, in terms of impact, there is a significant difference between constitutional and unconstitutional martial law. The debate isn’t fully settled, but it seems that, when governments follow all of the necessary procedural guarantees, constitutional martial law poses less threat to the rule of law generally. However, it’s certainly a field in which I’d like to see more research, particularly because Burma’s new constitutional has complex procedures allowing the Commander in Chief and a committee of senior leaders to declare a state of emergency.

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Filed under martial law, Philippines

December 8, 2009 · 12:37

And I thought Burma’s courts were bad…

One theme I regularly discuss on this blog is the constitutionalization or legalization of undemocratic rule in Southeast Asia. As despots have known for centuries, legal formalities can shroud anti-democratic and grossly illiberal tactics. In the Wall Street Journal, Carlyle Thayer professor of politics at the Australian Defence Force Academy in Canberra, recently discussed how Hun Sen‘s Cambodian People’s Party is beginning to rely upon courts to undermine political opponents rather than military coups (such as his 1997 coup against Ranariddh).
According to Thayer:

the country is once again on the brink of another political upheaval. This time, the battle lines are being drawn in courts rather than in the streets, but the effect will be the same—the slow but sure consolidation of authoritarian rule.

CPP-influenced courts regularly dismiss lawsuits brought against the government while convicting opposition deputies of defamation.

The immediate concern is (as always) Sam Rainsy. The CPP-dominated legislature recently stripped opposition leader Sam Rainsy of his parliamentary immunity, clearing the way for a provincial court to charge him with willfully destroying property (based on an odd incident at the Vietnamese border last month).

Generally, when a single-party or authoritarian government uses courts to prosecute political enemies, that is a strong indication that the regime is confident about its influence over the courts. Generally, after revolutionary or military juntas come to power, the leadership will purge the courts as much as possible. This sometimes involves establishing “special” security courts to handle politically sensitive cases that the regime doesn’t yet trust judges to handle. However, after gaining control over the courts, either by corrupting judges or replacing them, the regime then often utilizes courts against political dissidents to cover their actions in a thin veneer of legal legitimacy. The most prominent and obvious case of this has been Aung San Suu Kyi’s ongoing trial in Burma. However, I’ve seen similar patterns in China, Iran, and Brazil. There, the military junta knew far in advance how the judge would rule. It appears Cambodia under Hun Sen is taking a similar route to legalizing autocracy.

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Filed under authoritarian, Cambodia, Carlyle Thayer, Hun Sen, Sam Rainsy

December 7, 2009 · 14:49

More on the Khmer Rouge Tribunal…

The American Society of International Law has published an interesting ASIL Insight that focuses on disputes between national and international prosecutors at the Khmer Rouge Tribunal. International prosecutors want to open investigations into Khmer Rouge leaders beyond the original five already in the dock, while national prosecutors argue it would fall outside the KRT’s jurisdiction (and possibly lead to civil strife). Needless to say, both must agree in order for the Khmer Rouge Tribunal to function effectively. Unfortunately, the article concludes that the entire process might become (or appear) compromised as prosecutors make decisions based on the political interests of their stakeholders rather than the law. This would diminish its credibility severely among the Cambodian people, as well as donors (the KRT’s budget is already pitiful compared to other international tribunals).

You can download the entire article here.

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Filed under Cambodia, Khmer Rouge Tribunal