Comparative Constitutional Law and EU Law

Program 2015 / 2016

Organised by the
Embassy of the Sovereign Order of Malta in Bosnia and Herzegovina
in cooperation with
Bucerius Law School, Hamburg, Germany

Part One: Faculty of Law, University of Sarajevo

November 2 13, 2015

Week 1, November 2 6, 2015

Comparative Constitutional Law

Reading materials

Dr. Christof Maria Fritzen, LL.M.

Monday, November 2, 2015

9:00 10:30
Comparative Constitutional Law, Christof Maria Fritzen
What is a constitution?

- Constitutionalism, formal and material requirements

- Creation, adoption of constitutions
- Written / unwritten constitutions
- Constitution making in divided societies

Dorsen, Rosenfeld, Sajo, Baer, Comparative Constitutionalism, Cases and Materials,

p. 10-12, What is Constitutionalism?
Alexander Hamilton, The Federalist Papers No. 84, May 28, 1788 (Hamilton was
one of the three authors of the Federalist Papers which were published in 1787 and
1788 to convince the people of the State of New York to ratify the then new American
Constitution. In its original format the new American Constitution contained no Bill
of Rights. In The Federalist No. 84 Hamilton argues that the Constitution needed
no Bill of Rights. Do you agree?)
Certification of the Constitution of the Republic of South Africa, Judgment of the
Constitutional Court of South Africa, 1996 (4) SALR 744 (CC)
Vivien Hart, Democratic Constitution Making, U.S. Institute of Peace, Special
Report 107, July 2003
Donald L. Horowitz, Conciliatory Institutions and Constitutional Processes in PostConflict States, William and Mary Law Review, 2008, vol 49, p. 1213-1214, 12401248


  
Certain General and Miscellaneous Objections to the Constitution
Considered and Answered

From McLEAN's Edition, New York.

HAMILTON
To the People of the State of New York:
IN THE course of the foregoing review of the Constitution, I have taken notice of, and endeavored
to answer most of the objections which have appeared against it. There, however, remain a few
which either did not fall naturally under any particular head or were forgotten in their proper places.
These shall now be discussed; but as the subject has been drawn into great length, I shall so far
consult brevity as to comprise all my observations on these miscellaneous points in a single paper.
The most considerable of the remaining objections is that the plan of the convention contains no bill
of rights. Among other answers given to this, it has been upon different occasions remarked that the
constitutions of several of the States are in a similar predicament. I add that New York is of the
number. And yet the opposers of the new system, in this State, who profess an unlimited admiration
for its constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal
in this matter, they allege two things: one is that, though the constitution of New York has no bill of
rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular
privileges and rights, which, in substance amount to the same thing; the other is, that the
Constitution adopts, in their full extent, the common and statute law of Great Britain, by which
many other rights, not expressed in it, are equally secured.
To the first I answer, that the Constitution proposed by the convention contains, as well as the
constitution of this State, a number of such provisions.
Independent of those which relate to the structure of the government, we find the following: Article
1, section 3, clause 7 "Judgment in cases of impeachment shall not extend further than to removal
from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the
United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial,
judgment, and punishment according to law.'' Section 9, of the same article, clause 2 "The privilege
of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion
the public safety may require it.'' Clause 3 "No bill of attainder or ex-post-facto law shall be
passed.'' Clause 7 "No title of nobility shall be granted by the United States; and no person holding
any office of profit or trust under them, shall, without the consent of the Congress, accept of any
present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.''
Article 3, section 2, clause 3 "The trial of all crimes, except in cases of impeachment, shall be by
jury; and such trial shall be held in the State where the said crimes shall have been committed; but
when not committed within any State, the trial shall be at such place or places as the Congress may
by law have directed.'' Section 3, of the same article "Treason against the United States shall consist
only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No
person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act,
or on confession in open court.'' And clause 3, of the same section "The Congress shall have power
to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or

to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or
forfeiture, except during the life of the person attainted.''
It may well be a question, whether these are not, upon the whole, of equal importance with any
which are to be found in the constitution of this State. The establishment of the writ of habeas
corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE
HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater
securities to liberty and republicanism than any it contains. The creation of crimes after the
commission of the fact, or, in other words, the subjecting of men to punishment for things which,
when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have
been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the
judicious Blackstone,1 in reference to the latter, are well worthy of recital: "To bereave a man of
life, says he, or by violence to confiscate his estate, without accusation or trial, would be so
gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the
whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings
are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS
ENGINE of arbitrary government.'' And as a remedy for this fatal evil he is everywhere peculiarly
emphatical in his encomiums on the habeas-corpus act, which in one place he calls "the BULWARK
of the British Constitution.''2
Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may
truly be denominated the corner-stone of republican government; for so long as they are excluded,
there can never be serious danger that the government will be any other than that of the people.
To the second that is, to the pretended establishment of the common and state law by the
Constitution, I answer, that they are expressly made subject "to such alterations and provisions as
the legislature shall from time to time make concerning the same.'' They are therefore at any
moment liable to repeal by the ordinary legislative power, and of course have no constitutional
sanction. The only use of the declaration was to recognize the ancient law and to remove doubts
which might have been occasioned by the Revolution. This consequently can be considered as no
part of a declaration of rights, which under our constitutions must be intended as limitations of the
power of the government itself.
It has been several times truly remarked that bills of rights are, in their origin, stipulations between
kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not
surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand,
from King John. Such were the subsequent confirmations of that charter by succeeding princes.
Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such,
also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in
1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is
evident, therefore, that, according to their primitive signification, they have no application to
constitutions professedly founded upon the power of the people, and executed by their immediate
representatives and servants. Here, in strictness, the people surrender nothing; and as they retain
every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States,
to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this
Constitution for the United States of America.'' Here is a better recognition of popular rights, than
volumes of those aphorisms which make the principal figure in several of our State bills of rights,
and which would sound much better in a treatise of ethics than in a constitution of government.
But a minute detail of particular rights is certainly far less applicable to a Constitution like that
under consideration, which is merely intended to regulate the general political interests of the
nation, than to a constitution which has the regulation of every species of personal and private
concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well
founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth
is, that both of them contain all which, in relation to their objects, is reasonably to be desired.

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

Certification of the Constitution of The Republic of South Africa, 1996
CCT 23/96
Decided on 1 July 1996
MEDIA SUMMARY
The following explanatory note is provided to assist the media in reporting this case and
is not binding on the Constitutional Court or any member of the Court.
Since 27 April 1994 South Africa has functioned under an interim constitution, the
Constitution of the Republic of South Africa, 1993. The negotiating parties designed the
Interim Constitution as a bridge between the old order and the new, to regulate the
governance of the country under a government of national unity while a popularly
mandated Constitutional Assembly (CA) drafted a new constitution. The Interim
Constitution also served to mark out the further transitional steps to be taken.
One of these steps was that the CA had to adopt the new draft constitution within a period
of two years and by a majority of at least two-thirds of the CA's members. A second
requirement was that the constitutional text had to comply with a set of Constitutional
Principles agreed to by the negotiating parties and set out in Schedule 4 to the Interim
Constitution. A third requirement of the Interim Constitution was that the constitutional
text has no legal force unless the Constitutional Court certifies that all the provisions of
the text comply with the Constitutional Principles. The Court must determine whether
every requirement of the Principles has been satisfied by the provisions of the text and
whether any provision in the text conflicts with the CPs. The Court's powers and
functions in regard to certification of the text are confined to this determination.
The CA adopted the new constitutional text, the Constitution of the Republic of South
Africa 1996, timeously and with the requisite majority. The Chairperson of the CA then
transmitted the text to the Court for certification. The CA and all political parties
represented in the CA were entitled to present oral argument to the Court. In addition the
public at large was invited to submit representations relevant to the question of
certification of the text. Many written submissions were received and over a period of
nine days the CA, five political parties and certain other bodies and persons who had filed
relevant submissions were afforded an opportunity to advance oral argument to the Court.
The Court's judgment is divided into eight chapters, each dealing with a particular main
topic under various subheadings. Having sketched the background and context of the
certification exercise, the judgment explains the Court's approach to its task and then
deals with each identified issue bearing on the question of certification. In the main, these
relate to the provisions in the Bill of Rights and their entrenchment; to the separation of
powers between the executive, legislative and judicial branches of the state, including the
independence of the judiciary; to the relationship between the legislative and executive

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended
for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They
would contain various exceptions to powers not granted; and, on this very account, would afford a
colorable pretext to claim more than were granted. For why declare that things shall not be done
which there is no power to do? Why, for instance, should it be said that the liberty of the press shall
not be restrained, when no power is given by which restrictions may be imposed? I will not contend
that such a provision would confer a regulating power; but it is evident that it would furnish, to men
disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance
of reason, that the Constitution ought not to be charged with the absurdity of providing against the
abuse of an authority which was not given, and that the provision against restraining the liberty of
the press afforded a clear implication, that a power to prescribe proper regulations concerning it was
intended to be vested in the national government. This may serve as a specimen of the numerous
handles which would be given to the doctrine of constructive powers, by the indulgence of an
injudicious zeal for bills of rights.
On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark
or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of
this State; in the next, I contend, that whatever has been said about it in that of any other State,
amounts to nothing. What signifies a declaration, that "the liberty of the press shall be inviolably
preserved''? What is the liberty of the press? Who can give it any definition which would not leave
the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security,
whatever fine declarations may be inserted in any constitution respecting it, must altogether depend
on public opinion, and on the general spirit of the people and of the government.3 And here, after
all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights.
There remains but one other view of this matter to conclude the point. The truth is, after all the
declamations we have heard, that the Constitution is itself, in every rational sense, and to every
useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its
Constitution, and conversely the constitution of each State is its bill of rights. And the proposed
Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to
declare and specify the political privileges of the citizens in the structure and administration of the
government? This is done in the most ample and precise manner in the plan of the convention;
comprehending various precautions for the public security, which are not to be found in any of the
State constitutions. Is another object of a bill of rights to define certain immunities and modes of
proceeding, which are relative to personal and private concerns? This we have seen has also been
attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of
a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may
be said that it does not go far enough, though it will not be easy to make this appear; but it can with
no propriety be contended that there is no such thing. It certainly must be immaterial what mode is
observed as to the order of declaring the rights of the citizens, if they are to be found in any part of
the instrument which establishes the government. And hence it must be apparent, that much of what
has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from
the substance of the thing.

tiers of government at the national, provincial and local levels, with special reference to
the individual and collective powers and functions of the provinces; to the position of
traditional leadership and customary law; and to the functions and independence of
'watchdog' institutions of state.
In Chapter III of the judgment the Court deals with a wide variety of questions relating to
the Bill of Rights, ranging from 'horizontality', the position of juristic persons and the
limitations clause, to labour relations, the property clause, socio-economic rights,
language and education, access to information and marriage and family rights.
A major focus of the judgment is on provincial government issues, more specifically
whether the constitutional text provides for 'legitimate provincial autonomy' and whether
'the powers and functions of the provinces' under the proposed constitution are
'substantially less than or substantially inferior' to those provinces enjoy under the Interim
Constitution. Both issues are directly related to specific requirements of the
Constitutional Principles. Chapters V and VII, comprising about half of the judgment,
deal with these issues.
The Court's ultimate finding was that the constitutional text cannot be certified as
complying fully with the Constitutional Principles. The following instances of noncompliance were identified:
Section 23, which fails to comply with the provisions of CP XXVIII in that the
right of individual employers to engage in collective bargaining is not recognised
and protected.
Section 241(1), which fails to comply with the provisions of CP IV and CP VII in
that it impermissibly shields an ordinary statute from constitutional review.
Schedule 6 s 22(1)(b), which fails to comply with the provisions of CP IV and CP
VII in that it impermissibly shields an ordinary statute from constitutional review.
Section 74, which fails to comply with CP XV in that amendments of the NT do not require 'special procedures
involving special majorities'; and
CP II in that the fundamental rights, freedoms and civil liberties protected
in the NT are not 'entrenched'.
Section 194, which fails in respect of the Public Protector and the AuditorGeneral to comply with CP XXIX in that it does not adequately provide for and
safeguard the independence and impartiality of these institutions.
Section 196, which fails to comply with CP XXIX in that the independence and impartiality of the PSC is not
adequately provided for and safeguarded; and
CP XX in that the failure to specify the powers and functions of the Public

Service Commission renders it impossible to certify that legitimate

provincial autonomy has been recognised and promoted.
Chapter 7, which fails to comply with CP XXIV in that it does not provide a 'framework for the structures' of
local government;
CP XXV in that it does not provide for appropriate fiscal powers and
functions for local government; and
CP X in that it does not provide for formal legislative procedures to be
adhered to by legislatures at local government level.
Section 229, which fails to comply with CP XXV in that it does not provide for
'appropriate fiscal powers and functions for different categories of local
government'.
To the extent set out in the judgment the provisions relating to the powers and
functions of the provinces were held to fail to comply with CP XVIII.2 in that
'such powers and functions are substantially less than and inferior to the powers
and functions of the provinces in the IC.'
The Court emphasised that the constitutional text represents a monumental achievement.
The basic structure of the proposed constitution is sound and the overwhelming majority
of the requirements of the Constitutional Principles have been satisfied. The instances of
non-compliance that have been identified should present no significant obstacle to the CA
in formulating a text which complies fully with those requirements.
Judgment was delivered by the full Court.

UNI TED STATES I NSTI TUTE OF PEACE

www.usip.org

SPECI AL REPORT
1200 17th Street NW Washington, DC 20036 202.457.1700 fax 202.429.6063

ABOUT THE REPORT

This report examines the role of constitution making as
part of peacemaking, particularly in divided societies,
where the process of participatory constitution making
may sometimes provide a forum for reconciling
divisions, negotiating conflict, and redressing
grievances. The report analyzes recent practices of
constitution making across the globe and documents
the emergence of international human rights norms
that recognize the right to public participation in
changing or creating a constitution. The author
concludes with a reflection on lessons learned and
stresses the importance of process as well as outcome
in evaluating the final product.
Vivien Hart is a professor at the University of Sussex,
where she has served since 1991 as the director of the
University's Cunliffe Centre for the Study of Constitutionalism and National Identity, an international
research network involving scholars and activists from
the United Kingdom, Europe, United States, Canada,
South Africa, Sri Lanka, and Fiji. Her most recent book,
Women Making Constitutions, edited with Alexandra
Dobrowolsky, is due out this fall from Palgrave
Macmillan. Hart was a senior fellow in the U.S.
Institute of Peace's Jennings Randolph Program for
International Peace in 20022003.

Vivien Hart

Democratic Constitution
Making
Briefly . . .
We live in an era of co nstitutio n making. Writing a co nstitutio n is part of many peace
pro cesses. New natio ns and radically new regimes that seek demo cratic credentials make
writing a co nstitutio n a prio rity. In a changing wo rld, co nstitutio nal practice is also
changing. Twenty-first century co nstitutio nalism is redefining the lo ng traditio n of
expert co nstitutio n making and bringing it into the sphere of demo cratic participatio n.
Ho w the co nstitutio n is made, as well as what it says, matters. Pro ce ss has beco me
equally as impo rtant as the co ntent of the final do cument fo r the legitimacy of a new
co nstitutio n.
A right to public participatio n in demo cratic go vernance exists in internatio nal law.

The views expressed in this report do not necessarily

reflect views of the United States Institute of Peace,
which does not advocate specific policies.

This right packs a mo ral punch but it lacks legal teeth and effective enfo rcement.
Do es this right extend fro m everyday go vernance to the pro cess of co nstitutio n making? The United Natio ns Co mmittee o n Human Rights has reco gnized a specific right
to participate in co nstitutio n making.
Public participatio n is often taken to mean vo ting fo r example, electing a co nsti-

SPECIAL REPORT 107

JULY 2003

tutio nal co nventio n o r ratifying a co nstitutio nal text by referendum. Especially in

develo ping natio ns in Africa and elsewhere, ho wever, experiments with new fo rms of
participatio n are attempting to place initiative in the hands of citizens and to create
an o pen co nstitutio nal co nversatio n in which the public shares in agenda-setting,

CONTENTS

co ntent, and ratificatio n.

Genuine public participatio n requires so cial inclusio n, perso nal security, and freedo m of

Constitution Making: Tradition and Innovation

speech and assembly. A stro ng civil so ciety, civic educatio n, and go o d channels of co m-

Constitution Making for the 21st Century

municatio n between all levels of so ciety facilitate this pro cess. Only a co nsiderable co m-

The Importance of Process

mitment of time and reso urces will make genuine public participatio n po ssible.

Participation by Right

A de mo cratic co nstitutio n canno t be written fo r a natio n, no r can o ne be written in

Practicing Participatory Constitutionalism

haste. Inte rim o r transitio nal co nstitutio ns that include guarantees fo r a co ntin-

Women Making Constitutions 10

uing, o pen, and inclusive pro cess fo r the lo nger term offer o ne so lutio n to urgent

Lessons for the Constitution-Making Process 11

needs fo r a framewo rk of go vernance in new, divided, o r war-to rn natio ns.

 Participato ry co nstitutio n making is to day a fact of co nstitutio nal life as well as a go o d

in itself. Despite challenging difficulties of definitio n and implementatio n, a demo cratic co nstitutio n-making pro ce ss is, in the wo rds of African o bserver Julius Ivo nhbere, critical to the strength, acceptability, and legitimacy of the final pro duct.

ABOUT THE I NSTITUTE

Constitution Making: Tradition and Innovation

The United States Institute of Peace is an

We live in an era of co nstitutio n making. Of clo se to 200 natio nal co nstitutio ns in exis-

independent, nonpartisan federal institution

tence to day, mo re than half have been written o r re-written in the last quarter century.

created by Congress to promote the prevention,

Co nstitutio n making has beco me a part of many peace pro cesses. New natio ns and rad-

management, and peaceful resolution of interna-

ically new regimes, seeking the demo cratic credentials that are often a co nditio n fo r

tional conflicts. Established in 1984, the Insti-

reco gnitio n by o ther natio ns and by internatio nal po litical, financial, aid, and trade o rgan-

tute meets its congressional mandate through an

izatio ns, make writing a co nstitutio n a prio rity. In many cases, bo th the ways in which

array of programs, including research grants,

co nstitutio ns are written and the ideas of so vereignty, citizenship, and rights that are

fellowships, professional training, education

embo died in these fo undatio nal do cuments depart radically fro m the traditio n epito mized

programs from high school through graduate

by the United States Co nstitutio n.

school, conferences and workshops, library ser-

In 1787, the new United States of America was the o riginato r and mo del of tradi-

vices, and publications. The Institutes Board of

tio nal co nstitutio n making by a hand-picked elite gro up, and of the co nstitutio n as mark-

Directors is appointed by the President of the

ing a settlement of co nflict and inaugurating a new regime of po wers and rights.

United States and confirmed by the Senate.

Mainstream scho larship has generally presented the American Co nstitutio n as the fixed
o utco me of a perio d of natio n building and co nstitutio n making. Admirers, offering this

BOARD OF DIRECTORS
Chester A. Crocker (Chairman), James R. Schlesinger
Professor of Strategic Studies, School of Foreign Service,
Georgetown University Seymour Martin Lipset (Vice

as an example fo r o thers, tend to want to duplicate its perceived virtues: co nstitutio n

making as an act of co mpletio n, the co nstitutio n as a final settlement o r so cial co ntract in which basic po litical definitio ns, principles, and pro cesses are agreed, as is a
co mmitment to abide by them.
Co nstitutio n makers to day still co nfro nt the pro blem po sed by Alexander Hamilto n in

Chairman), Hazel Professor of Public Policy, George

Mason University Betty F. Bumpers, Founder and
former President, Peace Links, Washington, D.C.
Holly J. Burkhalter, Advocacy Director, Physicians for
Human Rights, Washington, D.C. Marc E. Leland, Esq.,
President, Marc E. Leland & Associates, Arlington, Va.
Mora L. McLean, Esq., President, Africa-America Institute, New York, N.Y. Mara Otero, President, ACCION
International, Boston, Mass. Barbara W. Snelling, former State Senator and former Lieutenant Governor, Shelburne, Vt. Harriet Zimmerman, Vice President,
American Israel Public Affairs Committee,
Washington, D.C.

1787, of whether so cieties . . . are really capable o r no t of establishing go o d go vernment fro m reflectio n o r cho ice, o r whether they are fo rever destined to depend fo r their
po litical co nstitutio ns o n accident and fo rce. The makers of new co nstitutio ns do no t
seek to thro w the entire traditio n o nto the scrap heap. Co nstitutio ns remain higher law,
specify the institutio ns of go vernance, define the rights, duties, and relatio nships of
state and citizens, and set the to ne o r establish the identity of the natio n-state. Onto
this traditio nal fo undatio n, ho wever, to days framers seek to build new practices. Recent
co nstitutio n-making pro cesses have been acco mpanied by massive effo rts to invo lve the
public befo re, during, and after the text is finalized. Examples of new practice include:
prio r agreement o n bro ad principles as a first phase of co nstitutio n making; an interim
co nstitutio n to create space fo r lo nger term demo cratic deliberatio n; civic educatio n and
media campaigns; the creatio n and guarantee of channels of co mmunicatio n, right do wn
to lo cal discussio n fo rums; electio ns fo r co nstitutio n-making assemblies; o pen drafting

MEMBERS EX OFFICIO

co mmittees aspiring to transparency of decisio n making; and appro val by vario us co mbinatio ns of representative legislatures, co urts, and referendums.

Lorne W. Craner, Assistant Secretary of State for

Democracy, Human Rights, and Labor Douglas J.

Feith, Under Secretary of Defense for Policy Paul G.

Gaffney II, Vice Admiral, U.S. Navy; President, National
Defense University Richard H. Solomon, President,

There is no simple transitio n to a new co nstitutio nalism. Co ntro l of the pro cess and
of the ultimate distributio n of po wer is at stake and participato ry co nstitutio n making
remains highly co ntro versial. Co nstitutio n making has no t been made easier, and by no
means all of these inno vatio ns, no r of the co nstitutio ns that result, have been successful. But the pro cess do es mo ve incrementally clo ser to the needs of the present day.

United States Institute of Peace (nonvoting)

Constitution Making for the 21st Century

Alexander Hamilto ns still-o pen questio n remains central to pro spects fo r a peaceful and
demo cratic wo rld. In the 21st century, pro of of o ur capacity fo r living to gether and sharing in go o d go vernment is no t o nly ever mo re urgently needed but also requires and

is generating creative thinking abo ut the making and co ntent of present-day po litical co nstitutio ns. Co nstitutio nal experimentatio n in many new and newly demo cratic
natio ns challenges o lder co nstitutio nal demo cracies to rethink their o wn practice and to
engage in a pro cess of mutual learning abo ut the co ntributio n of co nstitutio n making
to co nflict transfo rmatio n and sustainable peace.
A natio n co nfident in a stable future of internal harmo ny and agreed purpo se is no t
( if it ever was) the typical site of co nstitutio n making to day. A changed wo rld calls the
utility of the traditio nal mo del of the co nstitutio n into questio n. Co nsider ho w high a
bar that traditio nal mo del of an act of co mpletio n sets to establishing and legitimating

We live in an era of const it ut ion making. Of close to

200 nat ional const it ut ions in
exist ence today, more t han half
have been writ t en or re-writ t en
in t he last quart er cent ury.

co nstitutio ns in situatio ns of co nflict. Yet making a traditio nal co nstitutio n is seen by

many as essential to the establishment of po st-co nflict go vernance by pro viding a framewo rk to manage diversity and ensure stability.
The late 20th century has seen natio ns, o ld and yo ung, that are deeply divided, often
to the po int of vio lence. Natio n-states, defined by established bo undaries and the so le
po sse ssio n o f so ve re ig nty, have be e n c halle nge d fro m inside by c laims fo r se lfdeterminatio n o r secessio n, and fro m witho ut by the pro liferatio n of transnatio nal po litical o r eco no mic treaties and po wers with glo bal reach. At the same time, successful eco no mic and so cial develo pment have been declared, as in the 1993 Vienna Declaratio n of
the United Natio ns that no w frames develo pment and human rights po licy, to go hand
in hand with demo cratizatio n. Meanwhile aro und the wo rld many marginalized gro ups
indigeno us peo ples; the po o r; racial, ethnic, and language identity gro ups; and, cutting
acro ss all so cial catego ries, wo men have demanded inclusio n, po litical participatio n,
and po wer sharing.
Co nflicts o ver the identities, po wers, and rights of gro ups seem almo st endemic, and,
as such co nflicts repro duce themselves in the fo rm of new identities and claims, are likely to be a permanent feature of 21st century po lities. The nature of many mo dern co nflicts makes a final reso lutio n hard to reach. In such circumstances, finding a way of
living to gether within majo r disagreement is the mo re mo dest go al. Traditio nal co nstitutio n making as a co nclusio n of co nflict and co dificatio n of a settlement that intends
permanence and stability can seem to threaten rather than reassure. Citizens who actively
reject a final act of clo sure seek instead assurances that co nstitutio n making will no t
freeze the present distributio n of po wer into place fo r the lo ng term, no r exclude the
po ssibility of new participants and different o utco mes.
To imagine a co nstitutio nal settlement under which diverse and disagreeing gro ups
can live, while co ntinuing to engage in a freely accessible debate abo ut that settlement
itself, is a challenging pro po sitio n. The tensio n between the security and stability
offered by the traditio nal ideal of co nstitutio nalism and the flexibility called fo r by new
circumstances is what places pro cess at the heart of the new co nstitutio nalism. A permanently o pen pro cess must itself satisfy qualitative standards that were previo usly
applied o nly to the o utco me of co nstitutio n making. We used to think of a co nstitutio n
as a co ntract, nego tiated by appro priate representatives, co ncluded, signed, and
o bserved. The co nstitutio n of new co nstitutio nalism is, in co ntrast, a co nversatio n, co nducted by all co ncerned, o pen to new entrants and issues, seeking a wo rkable fo rmula
that will be sustainable rather than assuredly stable.
It is in such an enviro nment of co nversatio nal co nstitutio nalism that the issue ( startling to so me traditio nalists) of a right to participate in making a co nstitutio n has
arisen. The idea is ho tly co ntested by tho se who argue that o nly elites in mo dern so cieties po ssess the mo deratio n, technical expertise, nego tiating skills, ability to maintain
co nfidentiality, and abo ve all ratio nal incentives to co mpro mise so as to maintain po wer
that make fo r effective co nstitutio n making. But it is hard to argue against demo cracy.
The elite-made co nstitutio n, acco rding to the new paradigm, will lack the crucial cultural element of legitimacy. It will do so because the pro cess, no t just the final text, is
seen as flawed.
A demo cratic co nstitutio n is no lo nger simply o ne that establishes demo cratic

Tradit ional const it ut ion making

as a . . . codificat ion of a
set t lement t hat int ends permanence and stability can seem to
threaten rather than reassure.

There is a moral claim to

part icipat ion, according to
t he norms of democracy.

go vernance. It is also a co nstitutio n that is made in a demo cratic pro cess. There is thus
a mo ral claim to participatio n, acco rding to the no rms of demo cracy. A claim of necessity fo r participatio n is based o n the belief that witho ut the general sense of o wnership that co mes fro m sharing autho rship, to days public will no t understand, respect,
suppo rt, and live within the co nstraints of co nstitutio nal go vernment. Whether there is
also a legal right to participate, fo r who m, and what all of this means in practical terms,
are also key issues fo r mo dern co nstitutio nalism, who se reputatio n and effectiveness
depend upo n demo cracy in its pro cess as well as its o utco me. Experiments with public
participatio n in the pro cess of making co nstitutio ns are a striking feature of new co nstitutio nalism. It is with such issues of pro cess that this repo rt is co ncerned.

The Importance of Process

Norms of democrat ic procedure,
t ransparency, and accountabilit y t hat are applied to daily
polit ical decision making are
now also demanded for
const it ut ional deliberat ions.

Ho w the co nstitutio n is made, as well as what it says, matters. One of the mo st striking inno vatio ns in the co nstitutio n-making practice of recent decades is that no rms of
demo cratic pro cedure, transparency, and acco untability that are applied to daily po litical decisio n making are no w also demanded fo r co nstitutio nal deliberatio ns. Is this windo w dressing with demo cratic rheto ric, o r can new ideas and practices make a
difference? A study in co ntrasts in No rth American co nstitutio nalism illustrates the radical changes in attitude to co nstitutio n making invo lved.
No o ne wo uld expect an 18th century pro cess to match the standards of the 21st
century. No r wo uld anyo ne describe the making of the American Co nstitutio n in 1787
as a demo cratic exemplar fo r to day. Yet co nstitutio n making in the United States offers
an impo rtant lesso n. Scho lars have recently reflected o n Article V of the U.S. Co nstitutio n, the pro visio n fo r co nstitutio nal amendment, as an admissio n by the framers of the
likely imperfectio n of the Co nstitutio n and a permissio n to wo rk within its frame to
adjust its terms ( see especially Sanfo rd Levinso ns edited vo lume, Re spo nding to Impe rfe ctio n, published in 1995) . Yet the limitatio ns of the amending pro cess are co nsider-

able. The fact that the wishes and needs of indigeno us peo ples and African Americans
were o riginally co nsidered irrelevant, and that tho se of wo men were co nsidered to be
represented by men, left the American po lity with lo ng-term pro blems. When newly
assertive gro ups eventually demanded reco gnitio n, finding so lutio ns was hampered by
the necessity of acting within the co nstitutio nal framewo rk, drafting amendments and
litigatio n acco rding to a text set apart, a fo undatio nal do cument o utside the bo unds of
regular po litics. The Co nstitutio n is subject to special and especially difficult pro cedures
fo r amendment and the language of co nstitutio nal law is arcane. Thus even the first step
fo r excluded gro ups, entry to the co nstitutio nal debate, has never been easy. Gaining
each amendment o r new interpretatio n has typically invo lved a decades-lo ng struggle
fo r piecemeal refo rm.
Facing a similar upsurge of claims fo r co nstitutio nal reco gnitio n, Canada has taken a

Canada has taken a significant

step towards opening the
constitutional settlement to
full democratic discussion.

significant step to wards o pening the co nstitutio nal settlement to full demo cratic discussio n. No less a bo dy than the Canadian Supreme Co urt has endo rsed demo cratic pro cess,
in its advice o n the co nstitutio nal po sitio n of a po tential act of secessio n by the pro vince
of Quebec. The Co urts 1998 decisio n regarding the Re fe re nce re Se ce ssion of Que be c
defined demo cracy as a co re Canadian co nstitutio nal principle. This meant, the co urt
declared, that a functio ning demo cracy required a co ntinuo us pro cess of discussio n. The
co urt no ted further that no o ne has a mo no po ly o n truth, a fact implying a duty to listen to dissenting vo ices and to seek to ackno wledge and address tho se vo ices, even
when the mo st basic unity of the natio n was at stake. The Canadian Co nstitutio n, the co urt
co ncluded, gives expressio n to this principle [ of demo cracy] by co nferring a right to initiate co nstitutio nal change o n each participant and impo sing a co rrespo nding duty . . .
to engage in co nstitutio nal discussio ns in o rder to ackno wledge and address demo cratic
expressio ns of a desire fo r change. The Canadian Supreme Co urt decisio n is a summatio n

of new co nstitutio nalism, of co nstitutio n making as a pro cess rather than a o nce-and-fo rall defining mo ment, and of demo cratic re-nego tiatio n as the heart of a po litics of reco gnitio n and inclusio n. The Canadian Co nstitutio n is defined as a fo rum fo r a histo rically
co ntinuo us discussio n of the identity of the Canadian natio n.
In o ther wo rds, participato ry co nstitutio n making has beco me o ne criterio n of a legitimate pro cess. Where the premise of co nstitutio nalism as co nversatio n is taken o n bo ard,
co nstitutio n making can no lo nger be co nfined exclusively to the do main of high po litics and nego tiatio ns amo ng elites who draft texts behind clo sed do o rs. In the co ntext
of a traditio nal co nstitutio n, presumed to stand abo ve and to structure demo cratic po litics, the extensio n of demo cratic pro cess to include free, o pen, and respo nsive discussio n
of the co nstitutio nal settlement itself represents a radical departure, but o ne that
attempts to o verco me the pro blems of entry of new participants and of an equal vo ice
fo r all co ncerned regardless of their expertise.

The ext ension of democrat ic

process . . . at t empt s to
overcome t he problems of ent ry
of new part icipant s and of an
equal voice for all concerned
regardless of t heir expert ise.

Participation by Right
It is easy to say that public participatio n in co nstitutio n making is desirable. But this
remains a matter of o pinio n and matters of o pinio n are hard to enfo rce. A right to public participatio n in co nstitutio n making creates a stro nger gro und o n which to stand.
Majo r internatio nal rights instruments and natio nal co nstitutio ns do grant a general right
to demo cratic participatio n, altho ugh o ne that is lacking legal teeth and effective
enfo rcement. Ho wever, the extensio n of the right to participate to co nstitutio n making,
breaching traditio nal assumptio ns that the co nstitutio n-making pro cess stands o utside
no rmal demo cratic activities, has been co ntested. Fo r a lo ng time, even general demo cratic participatio n has been co nsidered at best to be an emerging right, in the wo rds
of an influential article o n The Emerging Right to Demo cratic Go vernance, by internatio nal law professo r Tho mas M. Franck ( published in the Ame rican Jo urnal of Inte rnatio nal
Law fo r 1992) . But the fo rmal endo rsement of demo cracy do es pack a mo ral punch and

its diffusio n in internatio nal co nventio ns and new natio nal co nstitutio ns suppo rts expectatio ns that it sho uld be o bserved in co nstitutio n-making pro cesses. And recent develo pme nts have g ive n partic ipatio n in c o nstitutio n making a textual autho rity in
internatio nal law that greatly strengthens its status. These o ccur in a decisio n of the
United Natio ns Co mmittee o n Human Rights ( UNCHR) acting in its judicial capacity, and
in a General Co mment fro m the same so urce, bo th interpreting the right granted in the
United Natio ns Internatio nal Co venant o n Civil and Po litical Rights ( ICCPR) as extending
to co nstitutio n making.
The right to participate in co nstitutio n making might lo gically be derived fro m the general meaning of demo cratic participatio n in the UN Declaratio n of Human Rights ( 1948,
Article 21) and especially Article 25 of the ICCPR ( a co venant agreed in 1966 and entered
into fo rce in 1976) . Article 25 establishes a right to participate in public affairs, to vo te,
and to have access to public service: Every citizen shall have the right and the o ppo rtunity . . . witho ut unreaso nable restrictio ns: ( a) to take part in the conduct of public affairs,
directly o r thro ugh freely cho sen representatives; ( b) to vo te and to be elected at genuine
perio dic electio ns which shall be by universal suffrage and shall be held by secret ballo t,
guaranteeing the free expressio n of the will of the electo rs; ( c) to have access, o n general
terms of equality, to public service in his co untry.
Later UN co nventio ns and declaratio ns against race and gender discriminatio n and o n
the rights of mino rities make similar pro mises. Regio nal and transnatio nal declaratio ns
such as the African Charter o n Human and Peo ples Rights ( 1981, Article 13.1) , the Asian
Charter of Rights ( 1998, Article 5.2) , and the Inter-American Demo cratic Charter ( 2001)
all declare a general right to po litical participatio n to be a fundamental principle.
As internatio nal lawyer Grego ry H. Fox no ted in a vo lume edited with Brad R. Ro th,
De mo cratic Go ve rnance and Inte rnatio nal Law ( 2000) , at the start this mo dest appro ach

Recent developments have given

participation in constitution
making a textual authority in
international law that greatly
strengthens its status.

to demo cratizatio n generally fo cused o n electo ral pro cesses. But successive do cuments and judicial interpretatio ns have gradually expanded the co ntent of participatio n
itself, the arenas of participatio n, and the acco mpanying penumbra of rights ( including
po litical equality, freedo m of speech and asso ciatio n, and rights to inclusio n and equality) that genuine participatio n presuppo ses. Alo ng the way, the meaning of the ICCPR
phrase, to take part in the co nduct of public affairs, has increasingly been explo red to
disco ver what tho se o pen-ended terms, take part and public affairs, might mean. In
the co urse of this pro cess of definitio n, two do cumentary so urces have jo ined the reco rd
and no w gro und the internatio nal right to participate in co nstitutio n making. Remarkably well-hidden in the bo dy of UN po litical rights do ctrine, these can be described as
bo th under-used to date, and also ripe fo r develo pment.
The first is a ruling in 1991 fro m the UNCHR, acting in its judicial capacity to hear
individual co mplaints under Optio nal Pro to co l I to the ICCPR. Marshall v. Canada ( Human
Rights Co mmittee, CCPR/ C/ 43/ D/ 205/ 1986, 3 December 1991) , a case bro ught in 1986
and decided five years later, first autho rized a specific right to participate in co nstitutio n making as an undo ubted part of public affairs. Leaders of the Mikmaq tribal so ciety
made the claim against the Canadian go vernment that exclusio n fro m direct participatio n in a series of co nstitutio nal co nferences infringed their right to take part in the
co nduct of public affairs, in vio latio n of article 25( a) of the co venant [ the ICCPR] . The
UNCHR ruled that: At issue in the present case is whether the co nstitutio nal co nferences
co nstituted a co nduct of public affairs. . . [ and] the co mmitte e canno t but co nclude that
the y do inde e d co nstitute a co nduct of public affairs ( italics added) .

Winning o nly a pyrrhic victo ry, the Mikmaq peo ple learned that while there was
indeed such a right to participate in co nstitutio n making there had been no infringement in their case. Thus the Mikmaq peo ples effo rts, while gaining legal standing fo r the
right to participate in co nstitutio n making, also succeeded in establishing a majo r limitatio n to the practical value of the legal right. The UNCHR also ruled that: It is fo r the
legal and co nstitutio nal system of the state party to pro vide fo r the mo dalities of such
participatio n, and Article 25( a) of the co venant canno t be understo o d as meaning that
any directly affected gro up, large o r small, has the unco nditio nal right to cho o se the
mo dalities of participatio n in public affairs. That, in fact, wo uld be an extrapo latio n of
the right to direct participatio n by the citizens, far beyo nd the sco pe of Article 25( a) .
Altho ugh the Mikmaq leaders stated that their submissio ns thro ugh an intermediary bo dy
had never even been laid o n the table, the UNCHR fo und the Canadian pro visio ns fo r the
representatio n of approximately 600 abo riginal gro ups by fo ur natio nal asso ciatio ns,
and later by a panel of up to 10 abo riginal leaders, adequate to meet the requirements
of Article 25.
The seco nd UNCHR textual autho rity is fo und in its General Co mment o n Article 25 of

Cit izens also part icipat e

direct ly in t he conduct of public
affairs when t hey choose or
change t heir const it ut ion.

the ICCPR, the right to participatio n, issued o n July 12, 1996. First, the key impo rtance
of Article 25s general right to participatio n is underlined: Whatever fo rm of co nstitutio n o r go vernment is in fo rce, the co venant requires states . . . to ensure that citizens
have an effective o ppo rtunity to enjo y the rights it pro tects. Article 25 lies at the co re
of demo cratic go vernment. The General Co mment then declares decisively: Citize ns also
participate dire ctly in the co nduct of public affairs whe n the y cho o se o r change the ir co nstitutio n ( italics added) . Altho ugh the prevailing o pinio n is that a General Co mment is

autho ritative but no t binding in law, this unequivo cal statement, co upled with the earlier judicial precedent, undo ubtedly do es place participato ry co nstitutio nalism o n a
newly secure fo o ting.
Like Marshall v. Canada, the General Co mment lacks any specificatio n of what a participato ry co nstitutio n-making pro cess wo uld lo o k like. But unlike mo st of the internatio nal co nventio ns that preceded it, as well as the very limited no tio n of representatio n
in Marshall v. Canada, the General Co mment do es explicitly expand the sco pe of demo cratic participatio n beyo nd the act of vo ting. Assemblies and acco untable representatio n, referenda and electo ral decisio n making, public debate and dialo gue, and citizens

capacity to o rganize themselves are all identified as mo des of participatio n. Thus the
suppo rt in internatio nal law fo r a right to participate in co nstitutio n making is, inch by
inch, gaining fo o ting and expanding in sco pe. In the meantime, the practice of participato ry co nstitutio n making in many parts of the wo rld is running ahead of the internatio nal rulebo o k.

The pract ice of part icipatory

const it ut ion making in many
part s of t he world is running
ahead of t he int ernat ional
rulebook.

Practicing Participatory Constitutionalism

Public participatio n is often taken to mean vo ting, as fo r example electing a co nstitutio nal co nventio n o r ratifying a co nstitutio nal text by a referendum. As we saw earlier,
Canada pro vided o ne early example of gro ups fro m o utside the clo sed circle demanding
to jo in the co nstitutio n making pro cess. But especially in develo ping natio ns in Africa
and elsewhere, experiments with new structures and fo rms of participatio n are attempting to develo p an o pen pro cess that places initiative in the hands of citizens and cre-

Especially in developing nat ions

in Africa and elsewhere, experiment s wit h new st ruct ures and
forms of part icipat ion are

ates a co nstitutio nal co nversatio n. In many cases, rather than wo rking within the

at t empt ing to develop an open

framewo rk of an existing bo dy of pro cedures and precedents, these natio ns are starting

process t hat places init iat ive in

with a clean slate.

Canadas clean slate was the pro cess of writing a new Charter of Rights and Freedo ms,

t he hands of cit izens.

ratified in 1982. Canadian co nstitutio nalism since the 18th century had been shaped by
co nflict, especially the search fo r reco nciliatio n of franco pho ne and anglo pho ne interests and fo r a status fo r Quebec that wo uld reco gnize its distinctive identity witho ut giving it special privileges. In the early 1980s, wo men mo bilized to insist that their
interests be fully represented. Canadian first natio ns also seized the mo ment to claim a
special status in Canadian go vernance. The co nstitutio nal co nversatio n had bro adened
and deepened lo ng befo re the o pen-ended discussio n of diversity was endo rsed as a principle by the Supreme Co urt. But we do no t need to lo o k o nly to the o lder western liberal demo cracies fo r new standards. The recent reco rd of co nstitutio n making elsewhere
abo unds with experiments in public participatio n.
Just a few examples suffice to illustrate the widespread ado ptio n of new and o pen
pro cesses. In 1986, the Nicaraguan Natio nal Assembly invited co mment o n the draft of
a new co nstitutio n. So me 100,000 citizens to o k part in o pen to wn meetings, fo rwarding
4,300 suggestio ns. In 1988, co nstitutio n makers in Uganda and Brazil requested suggestio ns befo re, as well as co mment after, the drafting pro cess, with equally impressive
levels of respo nse. In 1994, the So uth African Co nstitutio nal Assembly enco uraged a
natio n of first-time vo ters to participate in the co nstitutio n-making pro cess with the slo gan: Yo uve made yo ur mark, no w have yo ur say. Po lls estimated that 73 percent of
So uth Africans were reached by the assemblys campaign. The public made two millio n
submissio ns. Between 1994 and 1997, Eritreans engaged in co nstitutio nal educatio n and
co nsultatio n, addressing a natio n with markedly lo w literacy rates thro ugh so ngs, po ems,
sto ries, and plays in vernacular languages, and using radio and mo bile theatre to reach
lo cal co mmunities. In 2002, members of the Rwanda drafting co mmissio n and tho usands
of trained assistants fanned o ut to spend six mo nths in the pro vinces, so that co nstitutio nal educatio n and discussio n co uld beco me an integral part of co mmunity life. In
2003, the co nstitutio n review pro cess in Kenya is o perating under a statuto ry requirement that Kenyans have every o ppo rtunity to participate. The go al, as the Kenyan Co mmissio n claimed, is a peo ple-driven review pro cess who se final pro duct will be a
peo ple-o wned co nstitutio n.
The So uth African Co nstitutio n of 1996 is widely regarded as a mo del co nstitutio nal
text. Likewise, the pro cess by which it was made has been hailed as a key part of the successful transitio n fro m the o ppressio n of apartheid to a demo cratic so ciety. The fo llo wing
features of the So uth African pro cess illustrate the co ntext and challenges of demo cratic
co nstitutio n making and set the co ntext fo r evaluating its general po tential and pro blems.
In all, it to o k seven years, fro m 1989 to 1996, to achieve the final co nstitutio n.

The South African Constitution

of 1996 is widely regarded as a
model constitutional text.

Almo st five years elapsed between the first meeting of Nelso n Mandela and Prime Minister P. W. Bo tha in 1989 and agreement o n an interim co nstitutio n and the first no nracial electio n in 1994. Thro ugho ut these years, o utbreaks of vio lence threatened the
pro cess.
In a key phase fro m 1990 to 1994, agreements o n pro cess were nego tiated in private
and public sessio ns between fo rmer adversaries. These included a 1990 agreement to
nego tiate abo ut co nstitutio nal nego tiatio ns; pro lo nged arguments fro m 1991 thro ugh
1992 abo ut the fo rm the co nstitutio n-making pro cess sho uld take; agreement in April
1993 o n pro cedures; and in December 1993 agreement o n an interim co nstitutio n including principles and pro cedures binding o n the final co nstitutio n-making pro cess. In April
1994, the first no n-racial electio n fo r parliament was held with a vo ter turno ut of abo ut
86 percent. The fo llo wing mo nth, the new parliament met fo r the first time as the Co nstitutio nal Assembly.
Fro m 1994 thro ugh 1996 the So uth African pro cess became a full-scale demo nstratio n of participato ry co nstitutio n making. Until that time, the public had had no direct
ro le in co nstitutio n making. No w their elected representatives in the assembly reached
o ut to educate them and invite their views. The educatio nal effo rt included a media and
advertising campaign using newspapers, radio and televisio n, billbo ards, and the sides
of buses; an assembly newspaper with a circulatio n of 160,000; carto o ns; a web site;
and public meetings; to gether these effo rts reached an estimated 73 percent of the po pulatio n. Fro m 1994 thro ugh 1996 the Co nstitutio nal Assembly received two millio n submissio ns, fro m individuals and many advo cacy gro ups, professio nal asso ciatio ns, and
o ther interests.
In the final phase fro m 1994 thro ugh 1996, in tandem with the participato ry campaign, co mmittees of the assembly drafted a new co nstitutio n within the parameters
attached to the 1994 interim co nstitutio n; a first wo rking draft was published in No vember 1995, leaving aside 68 issues fo r further wo rk; a revised draft was pro duced in April
1996; and a final text in May 1996. Fro m July thro ugh September 1996 the Co nstitutio nal Co urt reviewed the text; the co urt then returned the text to the assembly fo r
amendments, which were made in Octo ber. In No vember, the co urt gave its final certificatio n and in December, President Mandela signed the co nstitutio n into law.
The So uth African pro cess to o k time. It was phased. It benefited fro m an interim co n-

The South African process took

time. It was phased. It benefited
from an interim constitution
that allowed the dialogue of
transition to continue.

stitutio n that allo wed the dialo gue of transitio n to co ntinue. Participatio n was invited
at a cho sen mo ment rather than thro ugho ut and then creativity and reso urces were co mmitted to facilitating a serio us dialo gue. Trust that the o utco me wo uld be co nsistent
with the 1994 demo cratic principles was created by the co ntinuatio n of the co nversatio n between judicial certificatio n and parliamentary co nfirmatio n. As in Canada, gro ups
including wo men and traditio nal autho rities fo und vo ice and access and made sure that
their interests were taken into acco unt. Also impo rtant was the fact that So uth Africa
had a pre-existing civil so ciety that co uld be drawn in as a co unterweight to the
entrenched racial and partisan divisio ns of po litics. Other impo rtant facto rs that sustained the fo rmal pro cess include patience, especially in the face of vio lence; a willingness by all co ncerned to take so me bo ld steps; and a co mbinatio n of nego tiatio n in
private o ver so me of the mo st difficult issues and unprecedented public invo lvement.
Fo r co mpariso n, let us lo o k at the recent Rwandan pro cess, pro mised by the Arusha
Peace Acco rd of 1999, with the main phase of co nstitutio n making implemented in 2002
and co mpleted by a referendum in May 2003. The Actio n Plan of the Co nstitutio nal Co mmissio n elected by the Natio nal Assembly ( it can be fo und in full at www.cjcr.go v.rw)
required, in sequence, in its o wn wo rds:
The training and sensitizatio n of the po pulatio n abo ut the Co nstitutio n;
The co nsultatio n of the po pulatio n o n the co ntent of the Co nstitutio n;
The writing and validatio n of the draft text of the Co nstitutio n;
The referendum o n the text of the Co nstitutio n as appro ved by Parliament.

The budget fo r these activities ran to abo ut US$7 millio n, the 12 co mmissio ners spent
six mo nths participating in lo cal pro grams and debates, and in the final referendum almo st
90 percent of the electo rate vo ted, with 93 percent of tho se vo ting appro ving the new co nstitutio n. No tably, public participatio n was initiated even befo re a co nstitutio nal text was
drafted. Again, the pro cess was carefully staged, the co mmitment of time and reso urces was
co nsiderable, and participatio n was no t simply structured o n existing party lines.
The Rwandan pro cess, as to o the current Kenyan pro cess, also suggests ano ther characteristic of these creatively participato ry pro cesses. Co nstitutio nal re-visio ning co mes
into play when the alternative is unsustainable o r to o dire to co ntemplate, whether that
be dictato rial o ppressio n, vio lence, o r geno cide. A demo cratic co nstitutio n-making
pro cess co ntributes to making peace because the prerequisite of any livable alternative
to the ho rro rs many natio ns have experienced is that all parties are willing to try to keep
talking abo ut their disagreements. Using wo rds that echo Alexander Hamilto ns, quo ted
abo ve, philo so pher Stuart Hampshire co ncluded in his recent bo o k, Justice Is Co nflict
( 2000) : Because there will always be co nflicts between co nceptio ns of the go o d, . . .
there is everywhere a well-reco gnized need fo r pro cedures of co nflict reso lutio n, which
can replace brute fo rce and do minatio n and tyranny. The quality of the pro cess as a
means of co nflict transfo rmatio n lies in ensuring that all who have views and grievances
have an effective vo ice, that participatio n is genuine and no t a charade.
Co nstitutio n making is essentially abo ut the distributio n of po wer. Unsurprisingly, the
idealism of the inno vatio ns described abo ve must be tempered with realism abo ut who
is really in charge. In bo th So uth Africa and Rwanda, po litical elites initiated the pro cess
of co nstitutio nal change, pro vided the perso nnel fo r the key institutio ns, and framed the

Const it ut ion making is

essent ially about t he
dist ribut ion of power.

educatio nal campaigns. Official ambivalence and co ntinuing attempts to blo ck the
pro cess in Kenya reveal ho w a participato ry pro cess initiated fro m perceived po litical
necessity can threaten an elite with lo ss of co ntro l and incur their resistance. At the mo st
cynical extreme, a determined elite o r o ne that is co nfident of its co ntinuing co ntro l may
offer a participato ry pro cess as a charade, a demo cratic ho ax intended to mo llify unrest

A determined elite or one that

by granting the appearance of demo cracy witho ut its substance. The achievements of

is confident of its continuing

participato ry co nstitutio n making, then, are no t to be ro manticized.

control may offer a participatory

Zimbabwes recent experience pro vides a cautio nary tale. In 1997 civil so ciety gro ups
and the po litical o ppo sitio n fo rmed an umbrella o rganizatio n that pressed fo r a co nsti-

process as a charade, a demo-

tutio n-making pro cess and insisted that this be co nducted o n participato ry lines. In

cratic hoax intended to mollify

1999, President Ro bert Mugabe reluctantly established a co mmissio n that was instructed to pro duce a draft co nstitutio n with the fullest public co nsultatio n. On paper, the offi-

unrest.

cial Observer Missio n of the Center fo r Demo cracy and Develo pment ( CDD, a Lo ndo n- and
Lago s- based no n-go vernmental o rganizatio n) repo rted a mo del pro cess: public hearings,
an o utreach pro gram of to wn hall meetings and o ther co mmunity activities, a multilingual media campaign, scientific po lling, an internatio nal co nference. Their repo rt ( The
Zimbabwe Co nstitutio nal Re fe re ndum, published in 2000) estimates that the co mmissio n

received abo ut 7000 written submissio ns, held mo re than 4000 meetings natio nwide and
interacted directly in public meetings with mo re than half a millio n peo ple. But behind
the fo rmal facts lay a manipulative pro cess. The appo inted co mmissio n was co ntro lled by
the presidents party; o nly 13 percent were wo men. Bitter partisan disputes, intimidatio n, and vio lence erupted. The co mmissio ns draft co nstitutio n was sent to President
Mugabe witho ut any o ppo rtunity fo r further public co mment. He quickly fo rwarded it fo r
a referendum vo te witho ut po ssibility of amendment. In February 2000, the electo rate
rejected the draft co nstitutio n by 54 to 46 percent.
Immediately after the vo te Lewis Machipisa edito rialized in Africa Ne ws that this no
vo te is also a no vo te against the arro gance that we experienced fro m the go vernment.
They didnt treat us as peo ple who mattered. A survey repo rted by Masipula Sitho le and
Charles Mango ngera in the jo urnal Age nda in March 2001 fo und that 43 percent of no
vo ters believed that mo st peo ple rejected the draft co nstitutio n because it did no t fully
take into acco unt the expressed wishes of the peo ple. As the CDD co ncluded, a flawed

Zimbabwes recent experience

provides a caut ionary tale.

pro cess co uld o nly pro duce a flawed pro duct. The pro cess, CDD repo rted, was stacked,
lacked transparency, was sho rt o n educatio n and o n translatio ns fro m English, was rushed
( taking a mere 10 mo nths all to ld) , and ultimately lacked credibility. The o nly reco urse
fo r frustrated Zimbabweans was the negative o ne of vo ting do wn the entire do cument.

Women Making Constitutions

Part icipatory const it ut ion
making . . . has oft en provided
an opport unit y for women to
gain representat ion in process
and outcome.

One further characteristic of the practice of participato ry co nstitutio n making is visible

in many of these acco unts, yet has received little co ncerted co mment. The pressure to
reso lve co nflict thro ugh co nstitutio nal co nversatio n has often co me fro m lo ng-term disagreements, co nflicts, and wars o ver so me co mbinatio n of racial, ethnic, and territo rial
bo undaries. Where participato ry co nstitutio n making has offered a fo rum fo r reco nciling
divisio n and redressing grievances, it has often also pro vided an o ppo rtunity fo r wo men
to gain representatio n in pro cess and o utco me. Indeed, wo men have at times been
instrumental in demanding such a co nstitutio nal o pening, where go vernance o r so cial
co nditio ns have previo usly made free entry difficult o r silenced their vo ices.
In Nicaragua in 1986 wo mens effectiveness was a matter of co mment by seaso ned
o bserver Andrew Reding. He repo rted in his article By the Peo ple, published in Christianity
and Crisis: The wo men stunned everyo ne. Hundreds of them to o k turns deno uncing the

language of the first co nstitutio nal draft. This in spite of the fact that the draft was already
stro ng o n wo mens rights. Ugandan wo men mo bilized to participate in the 10-year co nstitutio n-making pro cess; the co nstitutio n that came into fo rce in 1996 was described by
Oliver Furley and James Katalikawe ( in African Affairs fo r 1997) as o utstanding in the
degree to which it attempts to pro mo te and pro tect the rights of wo men. In 199293,
Cambo dia, in a co nstitutio n-making pro cess assisted by the United Natio ns as a way fo rward fro m a vio lent past, pro vided o ne of many examples of wo mens impo rtant ro le in
newly o pen pro cesses. Wo men co mprised 63 percent of the Cambo dian po pulatio n, and,
Stephen P. Marks repo rted in a paper prepared in 2003 fo r the U.S. Institute of Peace pro ject o n Co nstitutio n Making, Peacebuilding, and Natio nal Reco nciliatio n, a wo men's mo vement emerged that demanded a ro le in making Cambo dias new co nstitutio n: During a
fo ur-day Natio nal Wo men's Summit, . . . 109 wo men fro m eight pro vinces spo ke o ut o n
this issue. One of the o rganizers . . . said, We want to participate at all levels of po licymaking, including drafting the new co nstitutio n. Thus So uth African wo men had precedents to fo llo w when they called fo r ( and wo n) a presence o n the crucial drafting
co mmittees there, stro ng guarantees of gender equality, and pro tectio ns against discriminatio n. In Rwanda as in Cambo dia, in the wake of destructive civil war, wo men again co mprised a large majo rity of the po pulatio n. Three of the twelve co mmissio ners in Rwanda
were wo men, as were seven of twenty-nine Co nstitutio n Review co mmissio ners in Kenya.
Participato ry co nstitutio n making is by definitio n inclusive. Yet in few natio ns do

Womens presence across all

part y lines and demographic
cat egories somet imes enables
t hem to unit e, or to resolve
disput es across ot herwise
sharp dividing lines.

wo men, in the wo rds of the ICCPR, take part in the co nduct of public affairs o n an
equal basis with men. Wo men are usually demo graphically a majo rity, the mo re so in
so me po st-co nflict natio ns where the lo ss of male lives o r the flight of males has gro ssly
skewed the ratio . As demo cratizatio n and develo pment have beco me linked in internatio nal pro grams, wo mens educatio n, so cial co ntributio n, and po litical participatio n have
been identified as impo rtant to success. The institutio nalizatio n of an internatio nal
wo mens mo vement and o ppo rtunities fo r netwo rking and sharing experience thro ugh
events such as the United Natio ns Wo rld Co nferences o n Wo men have pro vided mo tivatio n and suppo rt to wo men to seek o ut the fo rmative mo ment of co nstitutio n making in
o rder to ensure gender fairness in any new regime. Furthermo re, wo mens presence acro ss
all party lines and demo graphic catego ries so metimes enables them to unite, o r to
reso lve disputes acro ss o therwise sharp dividing lines, as the No rthern Ireland Wo mens
Co alitio n is credited with having do ne o n several o ccasio ns in the nego tiatio n fo r and
implementatio n of the Belfast Agreement of 1998.

10

Wo men are no t primarily respo nsible fo r the initiatio n of participato ry practices,

who se o rigins are multiple in human rights debates, in demo cratizatio n mo vements, in
anti-co lo nial mo vements structured o n demo cratic lines, and o ther places. Wo men may,
ho wever, bo th particularly benefit fro m co nstitutio nal change, with its o ppo rtunities fo r
inclusio n, and suppo rt and enco urage the expansio n of participato ry metho ds. Fio na
Mackay and o thers, in a fo rthco ming essay ( in Wo me n Making Co nstitutio ns, edited by
Alexandra Do bro wo lsky and Vivien Hart, Octo ber 2003) offer evidence that wo men in po litics o n the who le display a mo re o utward lo o king and co llective o rientatio n, and will
emphasize establishing a dialo gue based o n evidence and prio r preparatio n. We may
learn fro m such evidence that wo men bring attitudes and experience highly appro priate
to demo cratic co nstitutio n making and that their increasing participatio n will give impetus and depth to develo ping practice.

Lessons for the Constitution-Making Process

At its best, participato ry co nstitutio nalism wo rks and co unteracts the arguments in suppo rt of elite nego tiatio n as the so le effective mo de. At its wo rst, as in Zimbabwe, it pro vides o nly ano ther guise fo r the exercise of raw po wer. In Zimbabwe, the public saw
thro ugh the ho ax and respo nded by negating the pro cess with a no vo te in the referendum of 2000. Fo r vulnerable citizens to have so me reco urse o ther than such a negative
respo nse, ho wever, internal co ntextual facto rs including a stro ng civil so ciety o r external
facto rs such as an internatio nal right and/ o r an internatio nal enfo rcement mechanism are
means of empo werment. Genuine public participatio n requires so cial inclusio n, perso nal
security, and freedo m of speech and assembly. A stro ng civil so ciety, civic educatio n, and
go o d channels of co mmunicatio n between all levels of so ciety further facilitate the pro cess.
Only a co nsiderable co mmitment of time and reso urces makes genuine public participatio n po ssible. Even if we co unt So uth Africas starting po int as the mo ment of agreement in 1991 to nego tiate the pro cess, co nstitutio n making in that highly successful
case to o k at least five years. Many wo uld argue that the pro cess was underway at least
two years befo re that, fro m the mo ment leaders began tentative appro aches acro ss the
racial divide; clearly, part of the pro cess is the building of an adequate level of trust
between elites and amo ng the general public to enable a co nstitutio nal co nversatio n to
take place at all.
Mo des of participatio n vary co nsiderably there is no o ne mo del appro priate to all
natio ns. So uth Africa elected a parliament that acted as the Co nstitutio nal Assembly.
Rwanda elected a legislative assembly that itself then elected a Co nstitutio nal Co mmissio n. Bo th natio ns so ught o ut public o pinio n thro ugh a variety of channels, used media
imaginatively, and devised materials to make co nstitutio nal issues accessible in multiple
languages to their po pulatio ns regardless of levels of literacy.
The public were no t invo lved equally at all stages of the So uth African and o ther
pro cesses. While So uth Africans co uld fo llo w the pro gress of public nego tiatio ns up to
1994, so me abso lutely critical deadlo cks alo ng the way were reso lved in secret meetings.
The entire public was first invited to take part in the 1994 electio n, the mo st co nventio nal fo rm of participatio n. But in the So uth African co ntext, where mo st of the po pulatio n had previo usly been excluded o n racial gro unds, this was a mo mento us act.
Approximately 86 percent of the po pulatio n vo ted. The number of vo ters, as well as the
number of submissio ns to the Co nstitutio nal Assembly, co nfirm that the public will participate where they see the issues and o utco mes as impo rtant.
Literacy and language are o nly two of the facto rs that have o perated to exclude
gro ups and individuals fro m co nstitutio n making in the past. Participato ry pro cesses
have wo rked to o verco me these two facto rs as well as racial and ethnic exclusio ns and
have been no table in so me natio ns fo r the new participatio n of indigeno us peo ples and
in mo st cases fo r the very visible inclusio n of wo men.

11

Genuine public participation

requires social inclusion, personal
security, and freedom of speech
and assembly.

Fo r mo re info rmatio n o n this to pic,

Participatio n is no w pro mo ted as bo th a right and a necessity. The right is established

see o ur web site ( www.usip.o rg) ,

in internatio nal declaratio ns and co nventio ns ado pted by mo st natio ns, as well as in

which has an o nline editio n of this

many recent natio nal co nstitutio ns. The necessity stems in part fro m the fo rceful advo -

repo rt co ntaining links to related web

cacy of demo cracy as the so le mo del fo r legitimate go vernance in a wo uld-be new wo rld

sites, as well as additio nal info rmatio n

o rder. Iro nically, o lder natio ns in the western liberal traditio n fro m which such calls

o n the subject.

have co me have no t often themselves extended the idea of demo cratic go vernance to
co nstitutio n making.
Participato ry co nstitutio n making is a practice with gro wing mo mentum, which has
pro duced so me remarkably inno vative pro cesses that have helped a pro cess-driven co nstitutio nalism to evo lve and have changed perspectives o n what makes a co nstitutio n
legitimate. Participato ry co nstitutio n making is backed by an internatio nal no rm and an
emerging legal right. But we are far fro m any agreed set of standards that wo uld bo th

A democratic constitution cannot

be written for a nation, nor can
one be written in haste without
breaching the requirements of
democratic process.

satisfy the advo cates of authentic participatio n and be enfo rceable in law. The call fo r
participatio n as a right will no t go away the effo rt fo r co nstitutio n makers must be to
find ways to clarify, implement, and enfo rce the mo st effective pro cesses and tho se mo st
appro priate fo r each natio n that embarks o n this key task of demo cratic go vernance.
Despite effo rts at external interventio n, a demo cratic co nstitutio n canno t be written
fo r a natio n, no r can o ne be written in haste witho ut breaching the requirements of

demo cratic pro cess. Interim o r transitio nal co nstitutio ns with guarantees fo r a co ntinuing, o pen, and inclusive pro cess fo r the lo nger term offer o ne so lutio n to urgent
needs fo r a framewo rk of go vernance in new, divided, o r war-to rn natio ns.
Participato ry co nstitutio n making is to day a fact of co nstitutio nal life as well as a
go o d in itself. Despite challenging difficulties of definitio n and implementatio n, a demo cratic co nstitutio n-making pro cess is, in the wo rds of African o bserver Julius Ivo nhbere,
critical to the strength, acceptability, and legitimacy of the final pro duct.

Process has joined outcome

as a necessary criterion for
legitimating a new constitution.

Much of the experience o utlined here suggests that this is all easy to say but still hard
to co me by. But the idea of co nstitutio n making as an o pen-ended co nversatio n between
all the members of a po litical co mmunity, rather than as the legal and expert drafting of a
co ntract by a technically qualified elite o n behalf of the natio n, no lo nger lurks o nly o n
the fringes of demo cratic theo ry. In many parts of the wo rld, participato ry co nstitutio n
making is mo re than just an aspiratio n, it is an emergent internatio nal right and an experimental practice. Pro cess has jo ined o utco me as a necessary criterio n fo r legitimating a new
co nstitutio n: ho w the co nstitutio n is made, as well as what it says, matters.

Uni t ed St at es
I nst i t ut e of Peace
1200 17th Street NW
Washingto n, DC 20036

www.usip.org

CONCILIATORY INSTITUTIONS AND CONSTITUTIONAL

PROCESSES IN POST-CONFLICT STATES
DONALD L. HOROWITZ*
There are two important questions in post-conflict constitution
making, and at present neither of them has a definitive or uniformly accepted answer.' The first relates to the best configuration
of institutions to adopt in order to ameliorate the problem of
intergroup conflict. The second concerns the process most apt to
produce the best configuration of institutions, whatever it might be.
The first question is unanswered because there is a dispute among
scholars and practitioners between two opposing views of appropriate institutions to mitigate conflict.2 Constitutional processes have
not generally been geared to yield coherent exemplars of either
configuration in a sufficient number of conflict-prone countries 3 to
provide a convincing demonstration of the superiority of one
approach or the other. The second question is unanswered because
in many cases constitutional processes are chosen in a haphazard
* James B. Duke Professor of Law and Political Science, Duke University. This Article
is a product of my project on constitutional design for severely divided societies, funded by

the United States Institute of Peace, the Harry Frank Guggenheim Foundation, and the
Carnegie Scholars program of the Carnegie Corporation. The Eugene T. Bost, Jr., Research
Professorship of the Cannon Charitable Trust No. 3 at Duke Law School also facilitated
preparation of this Article. I am grateful to all of these grantors for their generous assistance.
1. Constitution making is by no means the only significant method of peace building
after conflict. For two incisive broader treatments, see ANTHONY OBERSCHALL, CONFLICT
AND PEACE BUILDING IN DIVIDED SOCIETIES (2007); JANE STROMSETH, DAVID WIPPMAN &
ROSA BROOKS, CAN MIGHT MAKE RIGHTS? BUILDING THE RULE OF LAW AFTER MILITARY
INTERVENTIONS (2006).
2. For the essentials of the debate, see AREND LIJPHART, DEMOCRACY IN PLURAL
SOCIETIES (1977) (presenting the consociational view); DONALD L. HOROWITZ, ETHNIC GROUPS
IN CONFLICT 566-76 (2000) [hereinafter ETHNIC GROUPS IN CONFLICT] (criticizing the

consociational view); Donald L. Horowitz, Making ModerationPay: The ComparativePolitics

of Ethnic Conflict Management, in CONFLICT AND PEACEMAKING IN MULTIETHNIC SOCIETIES

451 (Joseph V. Montville ed., 1991) [hereinafter Making ModerationPay] (articulating the
incentives view).
3. Some partial exceptions are certain regimes formed after warfare. See infra text
accompanying notes 27-29, 35-49, 102-05.

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IV. THREE PROBLEMS, THREE CONSTITUTIONAL PROCESSES

There are undoubtedly many processes by which a constitution
can be made. 1 ' Close inspection of constitutional processes would
reveal a wide variety of specific combinations and sequences of
practices that could have significant effects on outcomes. Yet it is
worth highlighting, if only in a crude way that approximates a first
cut, three general methods of proceeding that bear on the attainment of particular goals. The key is to fit the process to the
problem.
As mentioned previously, the literature on public participation
and transparency has particular relevance to states in which
distrust of the sitting regime is prevalent."' Suppose the problem
is simply the public acceptability of the deal that moves an
authoritarian state to a democratic regime. There may be indifference among the particular institutions to be chosen. After all, many
countries can live with some standard version of parliamentary or
presidential institutions. In that case, either sitting politicians and
opposition politicians or a separately elected assembly can consummate a deal more or less in the open, with a considerable level of
public input. The draft can, if necessary, be ratified by the public
in a referendum. Under these conditions, criteria of openness,
publicity, and transparency can easily be met. This might be labeled
process model number one, which responds to problem number one,
the problem of distrust of the outgoing regime.
Not all states will meet this description. If the problem is the
difficult one of crafting a set of arrangements that will enable
conflicted ethnic groups to share power in a country that needs not
only democratic government but a heavy dose of institutions for
conflict reduction, something different may be required. For reasons
already discussed, ordinary majoritarianism can lead to ethnic
exclusion, 1 2 and resort to expert advice is called for. This is a
problem faced by many states.
110. See Jennifer Widner, Constitution Writingand ConflictResolution, 94 ROUND TABLE
503 (2005) (describing a range of processes).
111. See supra Part III.
112. See supra text accompanying note 6.

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CONCILIATORY INSTITUTIONS

1241

In this case, an expert body, or expertly informed body, needs to

be commissioned and given time to study and work quietly to devise
a consistent plan that has a fighting chance of producing an
arrangement that will not yield zero-sum results among the ethnic
groups in conflict. Although there needs to be periodic public
consultation, experts also need to be consulted behind closed
doors. There are precedents for organizing such consultations. In
some cases, commissions of inquiry have been appointed to study
and deliberate, with the aid of commission staff and outside
consultants." 3 In others, specially elected constitutional assemblies
have been accorded extended periods of time to consult widely and
produce recommendations." 4 No doubt there are several other ways
of accomplishing the same thing.
However the task is organized, the goal is to produce a coherent,
consistent plan of mutually reinforcing institutions that will work
to reduce conflict. The development of that plan will entail consultation with political leaders, who, in the end, will need to confer their
assent. Yet-at least in the absence of violent conflict that requires
resolution urgently, usually on a heavily negotiated basis-it is
remarkable how a carefully conceived structure can provide the
time and space for an appropriate degree of comparative learning
and deliberation. If this is achieved, an expert or expert-influenced
draft will not be, and should not be, the last word, but it can be
accorded a starting advantage in structuring public consideration
of constitutional options. A side benefit is that such a process is also
likely to yield an end product that is far more carefully drafted than
many contemporary constitutions have been.
Leaders in severely divided states often lack basic information
about, and nearly always lack sophisticated analysis of, the full
range of available options for constitutional engineering to reduce
conflict. It is often possible to suggest ways in which their basic
interests and those of their groups can be protected without
113. The Fiji Constitution Review Commission is one such example. See supranotes 95-97
and accompanying text.
114. The Nigerian Constituent Assembly, which sat in 1978, is one such example. See
generally L. Adele Jinadu, The Constitutional Situationof the Nigerian States, PUBLIUS,
Winter 1982, at 155; see also Martin Dent, Nigeria Federalism and Ethnic Rivalry, 53
PARLIAMENTARY AFF. 157, 166-67 (2000).

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requiring them to pursue extreme strategies that produce or

exacerbate intergroup conflict. There are times when leaders are
open to such ideas, especially when the process has been engineered
in such a way that quiets the crisis atmosphere that so frequently
characterizes the first phase of democratic constitution making
after conflict and creates deliberative space.
It should be obvious that the exigencies of such a process are at
odds with the highest levels of openness and public participation,
especially during some portions of the early stages, but certainly
not with all public participation and transparency, and that the
process needs to be conceived carefully. This might be labeled
process model number two, responding to problem number two, the
problem of intergroup conflict.
There is, however, a subcategory of severely divided societies that
requires a third model. The assumption thus far has been that a
new constitution is required and all parties are open to the idea.
The only question relates to the process by which the new document
should be crafted. But suppose this assumption does not prevail.
Suppose there is a constitution that is inefficient and perhaps also
undemocratic, but that nonetheless has considerable claims to
legitimacy for some significant, defined segment of the population.
If either of the first two processes is followed, there is a risk of
exacerbating the conflict by the very process of constitutional
renovation. There is also a risk of creating a serious challenge to the
legitimacy of any constitution that emerges from the process. If
politicians try to do a deal in the open, they will fail, and fail
conspicuously, while simultaneously proving and reinforcing the
intractability of their differences. Those who represent the segment
attached to the old constitution will not agree to scrap it. If the
second process is followed, either the experts will not agree or, if
they do, the draft will fail when it is sent forward for consideration
by political leaders, because there is no way around the conflict
between the old constitution, with its loyal adherents, and whatever
is to replace it.

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CONCILIATORY INSTITUTIONS

1243

Taiwan has this problem," 5 and Indonesia has had it." 6 In each
case, a differentiated segment of the population is or was attached
to the old constitution, which, by any objective standard, is or was
ineffective and in need of thorough renovation. Taiwan has not
solved this problem, but Indonesia has.
Taiwan has a dysfunctional version of a five-branch Confucian
Constitution, drafted for the Republic of China, with the various
branches intruding into matters that might have been reserved to
other branches." 7 Superimposed on this structure is a French-style
semi-presidential arrangement, but with the prime minister
perched anomalously between the president and the Legislative
Yuan and with the directly elected president exercising much less
effective power than might be expected in a semi-presidential
system." 8 Responsibility is diffused in undesirable ways. The
combined Confucian and French features have clearly created
difficulties that demand fundamental restructuring." 9
Taiwanese nationalists would like to draft a wholly new constitution that might be designed explicitly for Taiwan, rather than for all
of China, which the Republic of China regime previously sought to
represent and wished to reclaim. 2 Some Taiwanese and most
Mainlanders-those who fled China to Taiwan when the communists took over the mainland in 1949-oppose independence for
Taiwan and so oppose a constitution that is not designated for the
Republic of China.' 2 ' Some aim ultimately at reunification with the
mainland and therefore wish to retain an explicitly Chinese
constitution rather than adopt a Taiwanese constitution.'2 2 Many
others on Taiwan do not believe that either reunification with
China or independence for Taiwan is feasible and so also oppose
115. See generally Lin, supra note 84.
116. See generally Adi Andujo Soetjipto, Legal Reform and Challenges in Indonesia, in
INDONESIA IN TRANSITION (Chris Manning & Peter van Dierman eds., 2000).
117. REPUBLIC OF CHINA CONST. Arts. 25-28 (1947) (Taiwan).
118. See John Fuh-Sheng Hsieh, Whither the Kuomintang?, 168 CHINA Q. 930, 930 n.2
(2001).
119. See Yu-Shan Wu, The ROC's Semi-Presidentialismat Work: Unstable Compromise,
Not Cohabitation,ISSUES & STUD., Sept.-Oct. 2000, at 1.
120. See Emerson M. S. Niou, Understanding Taiwan Independence and Its Policy
Implications,44 ASIAN SURV. 555, 555-56 (2004).
121. Id. at 556-58.
122. Id.

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radical changes in the status quo that would be symbolized by a

new constitution for Taiwan alone. 123 This middle group forms a
12 4
plurality on the island.
Overlapping some of these divisions are divisions over the
structure of the existing constitution, attachment to which is
greater the closer on the spectrum one moves to the pro-unification
and Mainlander camps.' 25 The Pan-Blue camp, consisting of the
Kuomintang and its allies, resists fundamental constitutional
change, while the Pan-Green camp, the Democratic People's Party
and its allies, champions exactly that kind of change.126 The issue
threatens to polarize the island further by eliminating the moderate
middle, a course that would be quite dangerous.
Indonesia confronted an analogous problem after Suharto fell in
1998. The 1945 constitution had been drafted in haste and was
intended to be temporary.'2 7 It embodied a view of state power that
left little room for human rights or the rule of law.128 It seemed to
impart lawmaking power to the president and yet referred to a
supralegislative body, the People's Consultative Assembly (MPR),
as possessing "sovereignty."' 2 9 On one reading, the president could
do as he wished, for the text provided that he "hold[s] the power of
government."' 3 For decades, Sukarno and Suharto both read it that
way.' 3 ' On another reading, the MPR was truly supreme; and, with
Suharto gone, the MPR began autonomously to assert its powers,
including the power to choose and remove the president despite his
fixed term.'3 2
123. See Keith Bradsher, In Taiwan Ballot, Ties with Beijing Seem To Be a Winner, N.Y.
TIMES, Dec. 12, 2004, at 20.
124. See Niou, supra note 120, at 558-60.
125. See id. at 560-61. It is important to note, however, that the two camps are not
identical.
126. Id.
127. Andrew Ellis, The IndonesianConstitutionTransition:Conservationor Fundamental
Change?, 6 SING. J. INTL & COMP. L. 116, 116 (2002).
128. See Nursyahbani Katya Sungkana, Exchanging Power or Changing Power? The
Problem of CreatingDemocratic Institutions,in INDONESIA IN TRANSITION, supra note 116,
at 259, 261-62.
129. UNDANG-UNDANG DASAR NEGARA REPUBLIK INDONESIA [Constitution] art. 1, 2,
amended by amend. III.
130. Id. art. 4, 1.
131. See Ellis, supra note 127, at 123-24.
132. See id. at 126-27.

2008]

CONCILIATORY INSTITUTIONS

1245

For all its faults, the 1945 constitution had a considerable base
of support even after democratic reform began in 1998. Indonesian
society is divided into several aliran, meaning currents or
streams.'3 3 A major line of division concerns religion. Secular
nationalists associated with Megawati Sukarnoputri-who won
one-third of the vote and one-third of the legislative seats in 1999,
but had more support when secular nationalists in other parties
and in the army were added-were deeply attached to the old
constitution. 134 That constitution was associated with the anticolonial struggle; 1 35 it was a product of a time when secular
nationalists were ascendant; it had been reaffirmed by Megawati's
father, Sukarno, in 1959;136 and it embodied concepts of Pancasila,
the five fundamental truths nationalists wanted the state to live
by.'3 7 Like the ROC constitution in Taiwan, the 1945 Indonesian
Constitution was a bulwark against an emerging threat to the
identity of its proponents-in this case, the threat from Islam, of
which secular nationalists are as wary as Mainlanders and their
allies are of radical Taiwanese nationalism.13 Consequently, many
in the secular-nationalist camp wanted no change in the constitution or, in any case, as little as possible.
Indonesians in the MPR were afraid of splitting the society, so
they did not adhere to a deadline in changing the constitution.
Instead, Indonesian leaders awaited a consensus on every issue of
constitutional change and took more than four years to produce a
new constitution.139 Or, rather, a new-old constitution, because they
merely amended the 1945 constitution in a way that preserved the
Pancasilapreamble and the overall form of the constitution but
changed its substance to: (1) create, for the first time, a directly
133. For Indonesia's religious cleavages, see Robert W. Hefner, Public Islam and the
Problem of Democratization,62 SOc. RELIGION 491 (2001). See also CLIFFORD GEERTz, THE
RELIGION OF JAVA (1960). For ethnic divisions, see LEO SURYADINATA ET AL., INDONESIA'S
POPULATION: ETHNICITY AND RELIGION IN A CHANGING POLITICAL LANDSCAPE (2003).

134. See Muhammad Qodari, Indonesia's Quest for Accountable Governance, J.

DEMOCRACY, Apr. 2005, at 73, 79.
135. Ellis, supra note 127, at 116-17.
136. Id. at 123.
137. See Soetjipto, supra note 116, at 271-72.
138. See Azyumardi Azra, The Islamic Factorin Post-SoehartoIndonesia,in INDONESIA
IN TRANSITION, supra note 116, at 309, 310-11.
139. See generally Ellis, supra note 127.

1246

WILLIAM AND MARY LAW REVIEW

[Vol. 49:1213

elected president, a separation of powers, and checks and balances;

(2) virtually eliminate the MPR as a supralegislature except for a
few emergency functions; (3) add a constitutional court as an
earnest of the rule of law; and (4) produce de facto federalism in a
nominally unitary state. 141 In crafting the directly elected presidency, the Indonesians borrowed a version of the Nigerian system
of election by plurality plus territorial distribution in order to create
an incentive for the president to have a pan-ethnic outlook.'
The politics of this process of constitutional renovation is much
too complex to rehearse here, but what is most interesting is that
the process was led, in significant part, by some modernist Muslims
who did not share most of the apprehensions of secular nationalists
but were eager to avoid dangerous polarization. 42 The result was
to eliminate dysfunctional institutions, all the while preserving
consensus and keeping secular nationalists attached to the process
and to the emerging constitution. All of this occurred because the
Indonesians proceeded by systematic and extensive amendment,
rather than by scrapping the 1945 constitution, which richly
deserved scrapping. A side benefit of this gradual process was that
the Indonesians had repeated opportunities to revisit previous
decisions in order to correct what they saw as errors before
interests crystallized around new institutions.
Can Taiwan accomplish a similar renovation by amendment that
will avoid the polarization that a one-shot redrafting would entail?
Taiwan's amendment process has very high hurdles. In addition to
a supermajority to pass amendments, there is a referendum
provision with steep thresholds for passage.14 This is a major
barrier to proceeding by amendment in the Indonesian way.
For states that have a type-three problem, the stakes are very
high. The constitution is likely to be bound up inextricably with core
140. For a variety of perspectives on the Indonesian process, see ARIS ANANTA ET AL.,
EMERGINGDEMOCRACYIN INDONESIA (2005); INDONESIAINTRANSITION, supranote 116; Ellis,
supra note 127; Qodari, supra note 134.
141. See UNDANG-UNDANGDASARNEGARAREPUBLIKINDONESA [Constitution] amend. III
(adding article 6A).
142. See Azra, supra note 138, at 313-14.
143. Referendum Act (enacted by Legislative Yuan, Nov. 27, 2003, promulgated by
Presidential Order, Dec. 31, 2003), art. 30, translatedin DIRECT DEMOCRACY PRACTICES IN
TAIWAN 79, 88 (Taiwan Found. for Democracy ed., 2005).

20081

CONCILIATORY INSTITUTIONS

1247

ethnic and other identity issues. Inapt resolution of constitutional

issues can shrink the moderate middle and increase the distance
between the polar extremes. The Indonesian process is worthy of
close study in such cases, because preventing polarization is always
a major, but sometimes neglected, goal of constitutional processes.
V. MATCHING PROCESSES WITH PROBLEMS

Just as there are some times that are more open to constitutional
innovation than others, there are times when choices of process are
more open. Yet there is no escaping the fact that process choices,
like the choice of institutions to be incorporated in a constitution,
are heavily colored by constraint. An example of these constraints
has already been reviewed. After civil or secessionist war, an end to
the fighting or the prevention of its resumption is likely to be
produced by bilateral negotiation that, by its nature, is conducive
to guarantees of a generally consociational sort."' Similarly, a
sitting authoritarian regime and an opposition that has shaken but
not displaced it generally engage in an exchange of commitments.
In such cases, constitutional planning, with full scrutiny of
available options, is unusual. The structure of each situation
provides the constraint that narrows the options.
It is generally after the violence has definitively ended or the
authoritarians have departed that constitutional planning can
proceed. If interim arrangements have been put in place, political
actors who benefit from them are unlikely to wish to start a wholly
new constitutional process. Interests crystallize quickly in such
settings. Of course, if the initial post-conflict settlement breaks
down, as many do, there will not be a chance to reach the stage of
constitutional planning then either.
Even if the settlement does not break down, however, and there
is receptivity to creating new institutions, there is no equivalent of
a traffic police officer to direct particular problems to the process
most appropriate for them. It is possible to enumerate processes
that might prove best for dealing with an instance of one or another
type of problem, but the determinants of the choice of one or
144. See supra Part II.

1248

WILLAM AND MARY LAW REVIEW

[Vol. 49:1213

another process are, at this stage, truly uncertain. The parties in

conflict may be exhorted to proceed in public, or to deploy expertise
in a highly deliberative process, or to proceed by gradual amendment and consensus to prevent alienation and polarization, but
these are, in the end, just exhortations. The parties may proceed by
whatever method seems expedient and consistent with their
interests.
There is, therefore, the prior question of who sets the procedural
agenda and what can motivate an agenda-setting process that sorts
problems reliably. As of now, this issue of the metaprocess-the
process that leads to the process-has no convincing answers. This
is yet another reason why, since 1989, there has been much
constitution making but much less conflict reduction or prevention
of its recurrence.

Monday, November 2, 2015

14:00 15:00
Comparative Constitutional Law, Christof Maria Fritzen
Discussion: The historic baggage of constitutions

Preambles to the Constitutions of

- Bosnia and Herzegovina
- Croatia
- Germany
- South Africa
- the United States

 
  
 
 
 
 






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   6


THE CONSTITUTION OF THE

REPUBLIC OF CROATIA
I HISTORICAL FOUNDATIONS
The millennial national identity of the Croatian nation and the continuity of its statehood,
confirmed by the course of its entire historical experience in various political forms and by the
perpetuation and growth of state-building ideas based on the historical right to full
sovereignty of the Croatian nation, manifested itself:

in the formation of Croatian principalities in the 7th century;

in the independent medieval state of Croatia founded in the 9th century;
in the Kingdom of Croats established in the 10th century;
in the preservation of the subjectivity of the Croatian state in the Croatian-Hungarian
personal union;
in the autonomous and sovereign decision of the Croatian Parliament of 1527 to elect
a king from the Habsburg dynasty;
in the autonomous and sovereign decision for the Croatian Parliament to sign the
Pragmatic Sanction of 1712;
in the conclusions of the Croatian Parliament of 1848 regarding the restoration of the
integrity of the Triune Kingdom of Croatia under the power of the Vice-Roy (Ban) on
the basis of the historical state and natural right of the Croatian nation;
in the Croatian-Hungarian Compromise of 1868 regulating the relations between the
Kingdom of Dalmatia, Croatia and Slavonia and the Kingdom of Hungary, on the
basis of the legal traditions of both states and the Pragmatic Sanction of 1712;
in the decision of the Croatian Parliament of October 29, 1918, to dissolve state
relations between Croatia and Austria-Hungary, and the simultaneous affiliation of
independent Croatia, invoking its historical and natural right as a nation, with the State
of Slovenes, Croats and Serbs, proclaimed in the former territory of the Habsburg
Empire;
in the fact that the Croatian Parliament never sanctioned the decision passed by the
National Council of the State of Slovenes, Croats and Serbs to unite with Serbia and
Montenegro in the Kingdom of Serbs, Croats and Slovenes (December 1, 1918),
subsequently proclaimed the Kingdom of Yugoslavia (October 3, 1929);
in the establishment of the Banovina of Croatia in 1939 by which Croatian state
identity was restored in the Kingdom of Yugoslavia;
in laying the foundations of state sovereignty during World War Two, through
decisions of the Anti-Fascist Council of the National Liberation of Croatia (1943), to
oppose the proclamation of the Independent State of Croatia (1941), and subsequently
in the Constitution of the People's Republic of Croatia (1947), and several subsequent
constitutions of the Socialist Republic of Croatia (1963-1990).

At the historic turning-point marked by the rejection of the communist system and changes in
the international order in Europe, the Croatian nation reaffirmed, in the first democratic
elections (1990), by its freely expressed will, its millennial statehood and its resolution to
establish the Republic of Croatia as a sovereign state.
Proceeding from the above presented historical facts and from the generally accepted
principles in the modern world and the inalienable, indivisible, nontransferable and

inexpendable right of the Croatian nation to self-determination and state sovereignty,

including the inviolable right to secession and association, as the basic preconditions for
peace and stability of the international order, the Republic of Croatia is hereby established as
the national state of the Croatian people and a state of members of other nations and
minorities who are its citizens: Serbs, Muslims, Slovenes, Czechs, Slovaks, Italians,
Hungarians, Jews and others, who are guaranteed equality with citizens of Croatian
nationality and the realization of ethnic rights in accordance with the democratic norms of the
United Nations and countries of free world.
Respecting the will of the Croatian nation and all citizens, resolutely expressed at free
elections, the Republic of Croatia is organized and shall develop as a sovereign and
democratic state in which the equality of citizens and human freedoms and rights are
guaranteed and ensured, and their economic and cultural progress and social welfare are
promoted.

 
 
 

    

 











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Tuesday, November 3, 2015

9:00 10:30
Comparative Constitutional Law, Christof Maria Fritzen
Application of constitutions

- Vertical v. horizontal application

- Social and economic guarantees in constitutions

Shelley v. Kramer, 334 U.S. 1 (1948)

Lueth case, German Cstl. Ct., 7 BVerfGE 198 (1958)
Du Plessis v. De Klerk, Constitutional Court of South Africa, 8/95, May 15, 1996
Govt of the Republic of South Africa v. Grootboom, 2000 (11)
BCLR 1169 (CC), Summary
DeShaney v. Winnebago County Dept. of Social Services, 489
U.S. 189 (1989), Syllabus
Constitution of the Republic of Croatia, III., 3. Economic, Social
and Cultural Rights
Indian Constitution, Part IV, Directive Principles of State Policy

Shelley v. Kraemer, 334 U.S. 1 (1948)

Summary
Petitioner: J.D. Shelley
Respondent: Louis Kraemer
Petitioner's Claim: That contracts preventing African Americans from purchasing homes
violate the Fourteenth Amendment.
Chief Lawyers for Petitioner: George L. Vaughn and Herman Willer
Chief Lawyer for Respondent: Gerald L. Seegers
Justices for the Court: Hugo Lafayette Black, Harold Burton, William O. Douglas, Felix
Frankfurter, Frank Murphy, Frederick Moore Vinson
Justices Dissenting: None (Robert H. Jackson, Stanley Forman Reed, and Wiley Blount
Rutledge did not participate)
Date of Decision: May 3, 1948
Decision: The Supreme Court said the Fourteenth Amendment prevents courts from enforcing
race discrimination in real estate contracts.
Significance: Shelley ended a powerful form of race discrimination in housing.
When the American Civil War ended in 1865, the United States ended slavery with the
Thirteenth Amendment. Three years later in 1868, it adopted the Fourteenth Amendment. The
Equal Protection Clause of the Fourteenth Amendment says a state may not "deny to any
person within its jurisdiction the equal protection of the laws." The main purpose of the Equal
Protection Clause was to prevent states from discriminating against African Americans.
The Fourteenth Amendment only applies to the states. It does not prevent race discrimination
by individual people. After 1868, racial prejudice led many people to continue race
discrimination on their own.
Whites Only
In 1911 there was a neighborhood in St. Louis, Missouri, where thirty-nine people owned
fifty-seven parcels of land. In February of that year, thirty of the owners signed an agreement
not to rent or sell their property to African Americans or Asian Americans. Such an
agreement is called a restrictive covenant. The owners who signed the restrictive covenant
had forty-seven of the fifty-seven parcels in the neighborhood.
In August 1945, J.D. Shelley and his wife, who were African Americans, bought a parcel of
land in the neighborhood from someone named Fitzgerald. The Shelleys were unaware of the
restrictive covenant. Louis Kraemer and his wife, who owned another parcel in the
neighborhood, sued the Shelleys in the Circuit Court of St. Louis. The Kraemers asked the
court to take the Shelleys' land away and give it back to Fitzgerald.

The court ruled in favor of the Shelleys because the restrictive covenant did not have the
proper signatures. On appeal, however, the Supreme Court of Missouri reversed and ruled in
favor of the Kraemers. The court said the restrictive covenant was legal and ordered the
Shelleys to leave their land. Determined to stay, the Shelleys took the case to the U.S.
Supreme Court.
Race Discrimination Unenforceable
With a 60 decision, the Supreme Court reversed again and ruled in favor of the Shelleys.
Chief Justice Frederick Moore Vinson wrote the opinion for the Court. Chief Justice Vinson
said the right to own property is one of the rights protected by the Fourteenth Amendment.
That means a state would not be allowed to create a restrictive covenant that discriminated
against people because of their race.
Missouri, of course, did not create the restrictive covenant that applied to the Shelleys' land.
Private owners created it in 1911. That meant the restrictive covenant itself did not violate the
Fourteenth Amendment. The only way to enforce the covenant, however, was to go to court,
as the Kraemers had done.
Chief Justice Vinson said the Fourteenth Amendment made it illegal for state courts to
enforce restrictive covenants that discriminate against people because of their race. Vinson
said, "freedom from discrimination by the States in the enjoyment of property rights was
among the basic objectives sought by the framers of the Fourteenth Amendment. The
Fourteenth Amendment declares that all persons, whether colored or white, shall stand equal
before the laws of the States."
In the end, then, the Kraemers were not allowed to take the Shelleys' land away. The decision
was an early victory for African Americans, who were struggling to protect their civil rights.
Six years later, the Court would order public schools to stop segregation, the practice of
separating blacks and whites in different schools. Such decisions gave Americans the chance
to live and go to school together in the melting pot of the United States.

Lth case (Summary), BVerfGE 7, 198; 1 BvR 400/51 of January 15, 1958

Facts:
In 1950, on the occasion of the opening of the German film Week, one of the plaintiffs, Lth,
published the following statement in his capacity as President of the Press Club of Hamburg:
"After German filmmaking lost its moral reputation during the time of the Third Reich,
certainly one man is least capable of regaining/restoring that reputation: the writer and
director of the film 'Jud S' [i.e. Veit Harlan]! May we be spared further unforeseeable
damage under the eyes of the whole world which would certainly occur if we would
make him the main representative of the German film industry. His recent acquittal in a
Hamburg state court was only a formal verdict. The court's reasoning in fact was a
moral condemnation. We now demand [that] the distribution companies and theatre
owners [show] personal and moral character."

Two film production companies, both of whom were involved with Harlan, initiated legal action in
order to prohibit Lth:
1) from discouraging German film distribution companies and theatre owners to show Harlan's
latest film, "Unsterbliche Geliebte"; and
2) from discouraging the German public to go and see the film.
Their argumentation relied on German defamation law.
A State Court granted the injunctions requested; on appeal, the injunctions were upheld. Lth then
filed a complaint with the Federal Constitutional Court, claiming a violation of his right to freedom
of expression.
Held:
The Court ruled in favour of Lth.
The Court considered two questions to be of fundamental importance: first, whether fundamental
rights applied between individuals as well as between individuals and the State; and second, the
relationship between the right to freedom of expression and the rights of others.
As to the first question, the Court held:
There is no doubt that fundamental rights primarily intend to secure individual freedom
against public action; they are defensive rights against the state ... But it is also true
that the Constitution ... has developed an order of objective moral and legal principles
and that the effectiveness of fundamental rights finds its distinct expression therein (p.
204, references omitted)

Constitutional rights must therefore be taken into account in decisions that are otherwise essentially
based in civil law or other areas of law. This led the Court to develop its so-called doctrine of
indirect effect of fundamental rights which holds that almost every court decision, be it in the field
of civil, employment or commercial law, is subject to the constitutional rights doctrine as developed
by the Federal Constitutional Court.
In deciding the second question, the Court pointed out, first, the importance of the right to freedom
of expression:
The fundamental right to freedom of expression is as a direct expression of human
personality one of the noblest human rights in society (un des droits les plus prcieux de
l'homme according to Article 11 of the Declaration of human and civil rights of 1789).
To a free and democratic state, it is essential because it facilitates continuous
intellectual controversy, the "clash of opinions" which is a free democratic state's
primary element. It is, in a way, the very basis of freedom, 'the matrix, the indispensable
condition of nearly every other form of freedom' (Cardozo). (p. 208, references omitted)
Freedom of expression could therefore be restricted only in certain circumstances:
General laws aiming at limiting freedom of expression must [be] interpreted in such a
way that the essential normative content of freedom of expression which leads to a
presumption for the freedom of speech in any field of society and particularly in public
life is secured. The reciprocal relationship between the fundamental right [to freedom of
expression] and the 'general law' limiting it therefore is not a unilateral limitation of the
effectiveness of freedom of expression but it is rather a reciprocal action and effect in
the sense that the 'general laws' may put limitations to the fundamental right provision
but must themselves be interpreted in the light of the value-setting importance of the
fundamental right provision in the free and democratic state. (p. 208, references
omitted)
Applying these general legal principles, the Court held that:
The statements made by the complainant must be interpreted in the light of his general
political and cultural-political intentions ... The film companies, having decided to
employ Harlan again, may have acted correctly in formal terms. Yet, if they have not
paid attention to the moral dimension of the case doing so, this may not have the
consequence that the action taken by the complainant may be called 'immoral' [i.e. in
accordance with 826 of the Civil Code] and his fundamental right to freedom of
expression be limited. This would significantly narrow the importance of this
fundamental right provision to the free democracy which it gains by the fact that it
preserves public discourse on topics of common interest and substantive content. As far
as the development of public opinion concerning objectives important to the common
good is concerned, private and particularly economic interests have to stand back
principally. (p. 212, references omitted)
To underline its findings, the Court referred to a public discussion in German parliament held on 29
February 1952, indicating that Lth's opinion reflected a common public opinion and therefore
could not be considered "immoral".
The Court quashed the injunctions and referred the case back to the lower court for a new decision,
ordering it to take into account the principles enunciated.

Du Plessis, D., and others v. De Klerk, G.J.F. and Wonder Air (Pty) Ltd
Cconstitutional Court of South Africa, May 15, 1996, CCT 8/95
(Excerpt)

The case arose out of a defamation action instituted before the South African Constitution came
into force by Mr De Klerk and a company (Wonder Air (Pty) Ltd) controlled by him, after they had
been identified in the Pretoria News as being implicated in the unlawful supply of arms by UNITA.
After the Constitution came into force, the defendant sought to raise the defence that the alleged
defamation was not unlawful because it was protected by the right to freedom of speech and
expression in terms of s 15 of the Constitution.
The Transvaal Provincial Division of the Supreme Court referred two issues to the Constitutional
Court: (1) [ommitted] and (2) whether Chapter 3 [Bill of Rights] of the South African Constitution
was applicable to legal relationships between private parties.

Excerpt fom the Judgement of the Court, footnotes ommitted:

.
[31]

The horizontality issue has arisen in other countries with entrenched Bills of Rights and

the parties have supplied us with a wealth of comparative material both judicial and extra-judicial,
for which we are grateful.

[32]

In the court below the learned judge, having endorsed the purposive approach to

constitutional interpretation, analysed the purpose of the Chapter on Fundamental Rights as follows
When interpreting the Constitution and more particularly the Bill of Rights it has
to be done against the backdrop of our chequered and repressive history in the
human rights field. The State by legislative and administrative means curtailed the
common law human rights of most of its citizens in many fields while the Courts
looked on powerless. Parliament and the executive reigned supreme.
It is this malpractice which the Bill of Rights seeks to combat. It does so by laying
down the ground rules for State action which may interfere with the lives of its

citizens. There is now a threshold which the State may not cross. The Courts guard
the door.

Having considered the interpretation of entrenched Bills of Rights in the Constitutions of other
countries, he concluded that in general, fundamental rights are protected against state action only.
Horizontal protection, he said,
sometimes occurs to a limited extent but when it is intended over the broad field of
human rights, it is expressly so stated

Horizontal application of Chapter 3 would in his view create an undesirable uncertainty in private
legal relationships which could not have been intended by the framers of our Constitution. After an
analysis of certain provisions of the Constitution he held that the fundamental rights set out in
Chapter 3 were of vertical application only, and that the contrary conclusion of Van Schalkwyk J in
Mandela v Falati was clearly wrong. .

[33]

There can be no doubt that the resolution of the issue must ultimately depend on an analysis

of the specific provisions of the Constitution. It is nonetheless illuminating to examine the solutions
arrived at by the courts of other countries. The Court was referred to judgments of the courts of the
United States, Canada, Germany and Ireland.

I would not presume to attempt a detailed

description, or even a summary, of the relevant law of those countries, but in each case some broad
features are apparent to the outside observer. A comparative examination shows at once that there is
no universal answer to the problem of vertical or horizontal application of a Bill of Rights. Further,
it shows that the simple vertical/horizontal dichotomy can be misleading.

Thus under the

Constitution of the United States the First to Tenth Amendments (the Bill of Rights) and the
Fourteenth Amendment, insofar as they confer rights on individuals, would at first sight appear to
be vertical, in the sense of being directed only against state power. Yet the courts of that country
have in some cases at least reached what is effectively a horizontal application of constitutional
rights by holding that the judicial power is a state power against which constitutional protections
may invoked.

[34]

So, in Shelley v. Kraemer an African-American couple had bought property which was

subject to a restrictive covenant under which the seller had undertaken to sell only to whites.
Owners of restricted property in the same neighbourhood sued to prevent the couple from taking
possession of the property. The United States Supreme Court reiterated earlier holdings that the
Fourteenth Amendment did not reach private conduct, however discriminatory, but held that official
actions by state courts and judicial officials were subject to the Fourteenth Amendment, with the
result that the discriminatory covenant could not be enforced by the courts. Vinson CJ said ... state action in violation of the Amendments provisions is equally repugnant to
the constitutional commands whether directed by state statute or taken by a judicial
official in the absence of statute.

It was on this principle that the United States Supreme Court was able to hold in New York Times
Co. v. Sullivan, an action between private litigants, that the law of defamation of the State of
Alabama was an unconstitutional impairment of the right of freedom of speech. A complex case
law suggests that the rule in Shelley v. Kraemer, supra n47, is not invariably available in private law
disputes. The reasoning behind the decision has also been cogently criticised. It may nonetheless
be accepted that by identifying some state involvement in private transactions (sometimes with
great ingenuity) United States courts have found a way of enforcing fundamental constitutional
rights in disputes between private litigants.

[35]

Irish cases indicate that in some instances at least, constitutional rights have been directly

applied in private disputes so as to override a rule of common law. An example is C.M. v T.M. in
which Barr J held that the common law doctrine that a wifes domicile was dependent on that of
her husband was inconsistent with the principles of equality before the law and equality between
husband and wife embodied in Articles 40 and 41 of the Irish Constitution.

[36]

Very different models of constitutional adjudication are to be found elsewhere. There is a

valuable comparative overview of the application of constitutional rights in the private law of a
number of countries in Constitutional Human Rights and Private Law, a work by Justice A. Barak,
of the Supreme Court of Israel, from which it appears that there are several jurisdictions which
reject the horizontal application, or at least the direct horizontal application of constitutional rights.
I propose to confine my further consideration of the comparative material to the Canadian and
German position, particularly as argument on these two systems was specifically addressed to us.

[37]

The leading Canadian case is Retail, Wholesale & Department Store Union, Local 580 et al.

v. Dolphin Delivery Ltd. a judgment of the Supreme Court (to which I shall refer hereafter as
Dolphin Delivery). That case arose from a labour dispute, in which the defendant trade union
threatened to picket the plaintiffs premises unless it ceased to do business with another company
with which the union was in dispute. A trial judge found that the defendants conduct constituted
the tort of inducing a breach of contract and granted an injunction restraining the threatened
picketing. The union appealed on the ground that the injunction infringed its Charter right of
freedom of expression. In dismissing the appeal the court held (among other grounds) that while
the Charter applied to common law as well as statute law, it did not apply in litigation between
private parties in the absence of any reliance on legislation or governmental action. McIntyre J,
who gave the leading judgment, based his judgment on the terms of section 32 of the Charter which
expressly provide that the Charter applies to the Parliament and government of Canada and to
the legislature and government of each province. By government, he held, was meant the
executive and administrative branch of government. An order of court was not to be equated with
governmental action.

[38]

The essence of the courts conclusion is to be found in the following passage from the

judgment of McIntyre J -

It is my view that s. 32 of the Charter specifies the actors to whom the Charter will
apply. They are the legislative, executive and administrative branches of
government. It will apply to those branches of government whether or not their
action is invoked in public or private litigation. It would seem that legislation is the
only way in which a legislature may infringe a guaranteed right or freedom. Action
by the executive or administrative branches of government will generally depend
upon legislation, that is, statutory authority. Such action may also depend, however,
on the common law, as in the case of the prerogative. To the extent that it relies on
statutory authority which constitutes or results in an infringement of a guaranteed
right or freedom, the Charter will apply and it will be unconstitutional. The action
will also be unconstitutional to the extent that it relies for authority or justification
on a rule of the common law which constitutes or creates an infringement of a
Charter right or freedom. In this way the Charter will apply to the common law,
whether in public or private litigation. It will apply to the common law, however,
only in so far as the common law is the basis of some governmental action which, it
is alleged, infringes a guaranteed right or freedom.

What follows from this is - (a) if a party to private litigation founds a claim or defence on some
piece of legislation (whether an act of Parliament, a by-law or regulation) or on some executive act,
(such as the issue of a licence) its constitutionality under the Charter is an issue which may properly
be raised; (b) in litigation between private parties no inconsistency between the common law and
the Charter may be relied on; but (c) the Charter applies to the common law in a dispute between
government and a private litigant - for example where the government relies on a common law
prerogative. (In a subsequent case the Canadian Supreme Court has held that the Charter applies to
the state even in respect of activities which are contractual or commercial in nature).

The

Defendants in the present case point to differences in wording between the Charter and our own
Constitution, and deny that Dolphin Delivery provides any assistance in interpreting the latter. They
have also referred us to the academic criticisms of Dolphin Delivery noted by Friedman JP in
Baloro and Others v University of Bophuthatswana and Others. I shall return to Dolphin Delivery
later in this judgment.

[39]

The German jurisprudence on this subject is not by any means easy to summarise, especially

for one who does not read German. There are, however useful, accounts of the German approach in
some of the South African literature, as also in the work of Justice Barak, which I have mentioned
above. I have also had the benefit of reading an extensive article entitled Free Speech and Private
Law in German Constitutional Theory by Professor Peter E. Quint, to which I am much indebted.

[40]

The German model may be described as the indirect application model. The rights of

individuals entrenched in the Basic Law are directly available as protection against state (including
legislative) action, but do not directly apply to private law disputes. The values embodied in the
Basic Law do, however, permeate the rules of private law which regulate legal relations between
individuals. A constitutional right may override a rule of public law, but it is said to influence
rather than to override the rules of private law. Private law is therefore to be developed and
interpreted in the light of any applicable constitutional norm, and continues to govern disputes
between private litigants. Private law rules are not completely superseded. This approach was
authoritatively laid down by the German Constitutional Court in the leading case of Lueth, a case
concerning the right of free expression under Article 5 of the Basic Law. Later cases, such as the
Mephisto case in 1971, and the Deutschland-Magazin case in 1976, established that it was for the
ordinary courts to apply the constitutional norms to private law. This was likely to involve a
balancing of constitutionally protected interests against one another (for example the right of free
expression against the right of human dignity under Article 1) or against established private law
rights such as confidentiality or privacy. The facts of the particular case are also to be taken into
account in the balancing process. The German Constitutional Court will exercise, if necessary, a
power of review, but it will do so with restraint - usually only when it is satisfied that the ordinary
courts have proceeded on a seriously wrong interpretation of the basic constitutional rights under
Basic Law. Quint makes two comments of particular interest. One is that the deference of the
Constitutional Court to the ordinary courts on questions of private law stems from the fact that,
unlike the United States Supreme Court, its basic function is to decide constitutional questions only.
This consideration may prove in due course to have some relevance to the practical application of
section 35(3) of our own Constitution. The second is that in some cases the impact of the German
Basic Law upon private law under the indirect doctrine may be stronger than that of the United
States Constitution on American common law under the state action doctrine, precisely because

the ordinary German courts are entitled and obliged to take the Basic Law into account without
searching for an element of state action.

[41]

The doctrine of the application of the norms of the Basic Law in the field of private law

(Drittwirkung) is subtle and is the subject of considerable debate in Germany itself.

The

analyses of Justice Barak and Professor Quint might not command universal acceptance, still less
my own brief interpretation of the doctrine. It is not, however, my purpose to provide a definitive
statement of German law, even if I were competent to do so. The purpose of this perhaps overlong
account of constitutional adjudication elsewhere is to see what guidance it might provide in the
interpretation of the South African Constitution. In my opinion there is at least one positive lesson
to be learnt from the Canadian and German approaches to the problem before us. Both Canada and
Germany have developed a strong culture of individual human rights, which finds expression in the
decisions of their courts. Yet, after long debate, both judicial and academic, in those countries, the
highest courts have rejected the doctrine of direct horizontal application of their Bills of Rights. On
this issue, as on the retrospectivity issue, the example of these countries seriously undermines the
Defendants contention that anything other that a direct horizontal application of Chapter 3 must
result in absurdity and injustice.

[42]

As I have already indicated the issue of horizontal or vertical application of Chapter 3 has

been hotly debated in the South African legal literature. Arguments of substance have been
deployed on both sides of the debate. I have read much of this literature, I hope with advantage. It
is not out of any disrespect to the authors that I refrain from listing all those to be found on each
side of the controversy, or from analysing their respective arguments. I propose instead to turn
without further delay to consider what I take to be the relevant provisions of the Constitution.

[43]

In relation to the application of Chapter 3 of the Constitution there are, as Professor Cockrell

has explained, two inter-related but nonetheless different questions to be considered. The first is to
what law the Chapter applies - does it apply to the common law, or only to statute law? The second
question is what persons are bound by the Chapter - do the rights give protection only against
governmental action or can they also be invoked against private individuals? There are, of course,
subsidiary questions, such as what bodies can be considered to be organs of government, and
whether executive action in the private law sphere is governmental.

[44] The plain answer to the first question emerges from section 7(2) of the Constitution, which
states This Chapter shall apply to all law in force and all administrative decisions taken
and acts performed during the period of operation of this Constitution.

.
[45]

The second question too seems to have a plain answer. Section 7(1) states This Chapter shall bind all legislative and executive organs of state at all levels of
government.

Entrenched Bills of Rights are ordinarily intended to protect the subject against legislative and
executive action, and the emphatic statement in section 7(1) must mean that Chapter 3 is intended to
be binding only on the legislative and executive organs of state. .
.
[49]

To recapitulate, by reason of the sections to which I have referred a)

Constitutional rights under Chapter 3 may be invoked against

an organ of government but not by one private litigant against
another.

b)

In private litigation any litigant may nonetheless contend that

a statute (or executive act) relied on by the other party is

invalid as being inconsistent with the limitations placed on

legislature and executive under Chapter 3.

c)

As Chapter 3 applies to common law, governmental acts or

omissions in reliance on the common law may be attacked by
a private litigant as being inconsistent with Chapter 3 in any
dispute with an organ of government.

.
[57]

The limitation of the jurisdiction of this Court to constitutional matters, and the preservation

of the role of the Appellate Division as the final court of appeal in other matters also appear to me to
lead inexorably to the conclusion that Chapter 3 is not intended to be applied directly to common
law issues between private litigants. Section 101(5) of the Constitution statesThe Appellate Division shall have no jurisdiction to adjudicate any matter within
the jurisdiction of the Constitutional Court.

Numerous provisions of Chapter 3 could and would be invoked in private litigation if direct
horizontal application of the Chapter were permitted. .
.
[60]

Fortunately, the Constitution allows for the development of the common law and customary

law by the Supreme Court in accordance with the objects of Chapter 3. This is provided for in
section 35(3) In the interpretation of any law and the application and development of the
common law and customary law, a court shall have due regard to the spirit, purport
and objects of this Chapter.

I have no doubt that this sub-section introduces the indirect application of the fundamental rights
provisions to private law. I draw attention to the words have due regard to in section 35(3). That
choice of language is significant. The lawgiver did not say that courts should invalidate rules of
common law inconsistent with Chapter 3 or declare them unconstitutional. The fact that courts are

to do no more than have regard to the spirit, purport and objects of the Chapter indicates that the
requisite development of the common law and customary law is not to be pursued through the
exercise of the powers of this Court under section 98 of the Constitution. The presence of this subsection ensures that the values embodied in Chapter 3 will permeate the common law in all its
aspects, including private litigation. .

Government of the Republic of South

Africa. & Ors v Grootboom & Ors 2000 (11)
BCLR 1169. (CC)
Country:
South Africa/Sudfrica
Thematic Focus:
Children's Rights
Forum and Date of Decision:
Constitutional Court of South Africa
2012-06-21
escr-just@yahoogroups.com
Nature of the Case:
Challenge to failure of governments to provide adequate housing under s.26 (right to adequate
housing) and s.28 (Children's right to shelter) of the South African Constitution; Failure of
housing programme to address needs of those in desperate situations; Reasonable measures
and allocation of resources; Whether there is a right to minimum shelter; Minimum core
content of right to housing; Extent of judicial deference to government policy choice;
Appropriate remedy.
Summary:
A community of squatters, evicted from an informal settlement in Wallacedene had set up
minimal shelters of plastic and other materials at a sports centre adjacent to Wallacedene
community centre. They lacked basic sanitation or electricity. The group brought an action
under sections 26(the right of access to adequate housing) and 28 (children's right to basic
shelter) of the South African Constitution for action by various levels of government. The
High Court, relying on the principles of judicial deference outlined by the Constitutional
Court in the Soobramoney case, found that the respondents had taken reasonable measures
within available resources to achieve the progressive realisation of the right to have access to
adequate housing as required by s. 26(2) of the Constitution. However, because the right of
children to shelter in article 28 was not subject to available resources, the High Court held that
the applicants were entitled to be provided with basic shelter. On appeal to the Constitutional
Court the Court found no violation of s. 28 but found instead a violation of the right to
adequate housing in s.26. The Court held that article 26 obliges the state to devise and
implement a coherent, co-ordinated housing programme and that in failing to provide for
those in most desperate need the government had failed to take reasonable measures to
progressively realize the right to housing. The Court ordered that the various governments
devise, fund, implement and supervise measures to provide relief to those in desperate need.
The South African Human Rights Commission agreed to monitor and if necessary report on
the governments' implementation of this order.
Enforcement of the Decision and Outcomes:
The decision had a major impact on housing policy in South Africa. Most municipalities put
in place a "Grootboom allocation" in their budgets to address the needs of those in desperate
need. The applicants were provided with basic amenities as a result of a settlement reached

prior to the hearing of the case by the Constitutional Court, but the results of the decision for
the community have been disappointing. Further legal action was taken to enforce the remedy
against the local government.
Significance of the Case:
This is probably the most cited ESC rights case, laying the foundation for subsequent
successful ESC rights claims in South Africa and elsewhere. The Court lays the foundation
for the justiciability of the obligation to progressively realize ESC rights, which the Court will
review on the basis of the reasonableness test, and exercise deference, where appropriate,
at the stage of remedy. The ruling places the adjudication of ESC rights within a familiar
framework to courts in all jurisdictions and modifies the rationality review standard adopted
in the earlier Soobramoney case.

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Wednesday, November 4, 2015

9:00 10:30
Comparative Constitutional Law, Christof Maria Fritzen
Judicial review
- Bases for judicial review
- Scope of judicial review
- Standards of judicial review
- Limits to judicial adjudication by constitutional courts
- The counter-majoritarian difficulty

Bases:
- U.S.: Marbury v. Madison, 1 Cranch 137 (1803)
- Germany: Art. 93 German Cst.
- South Africa: Art 38 SA Cst.
Scope:
- Campbell v. Clinton, 203 F.3d 19, 340 (2000)
- International Military Operations (Germany participation) case, German Cstl.
Ct. (1994)
Standards:
- United States v. Carolene Products Co., 304 U.S. 144 (1938)
- Kalkar Case I, German Cstl. Ct., 49 BVerfGE 89 (1978)
The counter-rmajoritarian difficulty:
- Alexander Bickel, The Least Dangerous Branch, 2nd ed. 1986, 14-23
(optional)

Basic Law for the Federal Republic of Germany (Grundgesetz, GG)

Article 93 [Federal Constitutional Court: jurisdiction]
(1) The Federal Constitutional Court shall rule:
1. on the interpretation of this Basic Law in the event of disputes concerning the extent of the
rights and duties of a supreme federal body or of other parties vested with rights of their own
by this Basic Law or by the rules of procedure of a supreme federal body;
2. in the event of disagreements or doubts respecting the formal or substantive compatibility
of federal law or Land law with this Basic Law, or the compatibility of Land law with other
federal law, on application of the Federal Government, of a Land government, or of one third
of the Members of the Bundestag;
2a. in the event of disagreements whether a law meets the requirements of paragraph (2) of
Article 72, on application of the Bundesrat or of the government or legislature of a Land;
3. in the event of disagreements respecting the rights and duties of the Federation and the
Lnder, especially in the execution of federal law by the Lnder and in the exercise of federal
oversight;
4. on other disputes involving public law between the Federation and the Lnder, between
different Lnder, or within a Land, unless there is recourse to another court;
4a. on constitutional complaints, which may be filed by any person alleging that one of his
basic rights or one of his rights under paragraph (4) of Article 20 or under Article 33, 38, 101,
103, or 104 has been infringed by public authority;
4b. on constitutional complaints filed by municipalities or associations of municipalities on
the ground that their right to self-government under Article 28 has been infringed by a law; in
the case of infringement by a Land law, however, only if the law cannot be challenged in the
constitutional court of the Land;
5. in the other instances provided for in this Basic Law.
(2) The Federal Constitutional Court shall also rule on such other matters as may be assigned
to it by a federal law.

Constitution of the Republic of South Africa, 1996

38. Enforcement of rights
Anyone listed in this section has the right to approach a competent court, alleging that a right
in the Bill of Rights has been infringed or threatened, and the court may grant appropriate
relief, including a declaration of rights. The persons who may approach a court are a.
b.
c.
d.
e.

anyone acting in their own interest;

anyone acting on behalf of another person who cannot act in their own name;
anyone acting as a member of, or in the interest of, a group or class of persons;
anyone acting in the public interest; and
an association acting in the interest of its members.

















 
   


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Opinion for the Court filed by Circuit Judge SILBERMAN.

Separate concurring opinion filed by Circuit Judge SILBERMAN.
Separate opinion concurring in the judgment filed by Circuit Judge RANDOLPH.
Separate concurring opinion filed by Circuit Judge TATEL.

SILBERMAN, Circuit Judge:

A number of congressmen, led by Tom Campbell of California, filed suit claiming that the
President violated the War Powers Resolution and the War Powers Clause of the Constitution
by directing U.S. forces' participation in the recent NATO campaign in Yugoslavia. The
district court dismissed for lack of standing. We agree with the district court and therefore
affirm.

I.
On March 24, 1999, President Clinton announced the commencement of NATO air and cruise
missile attacks on Yugoslav targets. Two days later he submitted to Congress a report,
"consistent with the War Powers Resolution," detailing the circumstances necessitating the
use of armed forces, the deployment's scope and expected duration, and asserting that he had
"taken these actions pursuant to [his] authority . . . as Commander in Chief and Chief
Executive." On April 28, Congress voted on four resolutions related to the Yugoslav conflict:
It voted down a declaration of war 427 to 2 and an "authorization" of the air strikes 213 to
213, but it also voted against requiring the President to immediately end U.S. participation in

the NATO operation and voted to fund that involvement. The conflict between NATO and
Yugoslavia continued for 79 days, ending on June 10 with Yugoslavia's agreement to
withdraw its forces from Kosovo and allow deployment of a NATO-led peacekeeping force.1
Throughout this period Pentagon, State Department, and NATO spokesmen informed the
public on a frequent basis of developments in the fighting.
Appellants, 31 congressmen opposed to U.S. involvement in the Kosovo intervention, filed
suit prior to termination of that conflict seeking a declaratory judgment that the President's use
of American forces against Yugoslavia was unlawful under both the War Powers Clause of
the Constitution and the War Powers Resolution ("the WPR"). See 50 U.S.C. 1541 et seq.
The WPR requires the President to submit a report within 48 hours "in any case in which
United States Armed Forces are introduced . . . into hostilities or into situations where
imminent involvement in hostilities is clearly indicated by the circumstances," and to
"terminate any use of United States Armed Forces with respect to which a report was
submitted (or required to be submitted), unless the Congress . . . has declared war or has
enacted a specific authorization for such use of United States Armed Forces" within 60 days.
Appellants claim that the President did submit a report sufficient to trigger the WPR on March
26, or in any event was required to submit a report by that date, but nonetheless failed to end
U.S. involvement in the hostilities after 60 days. The district court granted the President's
motion to dismiss, see Campbell v. Clinton,52 F.Supp.2d 34 (D.D.C.1999), and this appeal
followed.
II.
The government does not respond to appellants' claim on the merits. Instead the government
challenges the jurisdiction of the federal courts to adjudicate this claim on three separate
grounds: the case is moot; appellants lack standing, as the district court concluded; and the
case is nonjusticiable. Since we agree with the district court that the congressmen lack
standing it is not necessary to decide whether there are other jurisdictional defects.

U. S. v. Carolene Products Co., Case Brief

Summary of U. S. v. Carolene Products Co.
S. Ct. 1938
Regulation of Business Designed to Protect Public Health/Safety Rational Basis:
Relevant Facts: The Carolene Products Company was indicted for shipping a compound of
condensed skimmed milk and coconut oil made in imitation or semblance of condensed milk
or cream.
Legal Issue(s): Whether the Filled Milk Act of Congress which prohibits the shipment of
skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or
cream, violates the 5th or 14th Amendments?
Courts Holding: The prohibition of shipment of appellees product does not violate the
5th or 14th.
Procedure: The case was brought here on appeal under the Criminal Appeals Act. Judgment
sustaining a demurrer to the indictment, and the United States appeals. Reversed.
Law or Rule(s): A statute enacted where the facts would show or tend to show that a statute
deprives life, liberty, or property is a denial of due process, unless rationally based on to
the health and welfare of the public evidenced by the legislators experience and knowledge.5th 14th.
Court Rationale: The equal protection clause of the Constitution does not compel state
Legislatures to prohibit all like evils or none, but permits the Legislatures to hit at an abuse
which they have found, even though they fail to strike at another. -14th In twenty years
evidence has steadily accumulated of the danger to the public health from the general
consumption of foods which have been stripped of elements essential to the maintenance of
health. The regulation of filled milk, in the absence of proof discrimination or arbitrary
application to a member of a class, is reserved for Congress to legislate, so long as the statute
remains consistent with the Const.
Plaintiffs Argument: (Appellant) Foods that have been stripped of elements essential to the
maintenance of health, and pose a danger to the public health should be regulated.
Defendants Argument: (Appellee) The statute denies to it equal protection of the laws, and
in violation of the 5ht Amendment, deprives it of its property without due process of law,
particularly in that the statute purports to make binding and conclusive upon appellee the
legislative declaration that appellees product is an adulterated article of food, injurious to the
public health, and its sale constitutes a fraud on the public.
[Epithets titles or designations]
[Opprobrious heinous or bad]
TEST The existence of facts supporting legislative judgment is presumed. Regulatory
legislation affecting ordinary commercial transactions is not deemed unconstitutional unless

the facts disclose the character of the statute is not based upon a rational basis. Experience
and knowledge of legislators.

Footnote 4 to U.S. v. Carolene Products Co.:

There may be narrower scope for operation of the presumption of constitutionality when
legislation appears on its face to be within a specific prohibition of the Constitution, such as
those of the first ten amendments .
It is unnecessary to consider now whether legislation which restricts those political processes
which can ordinarily be expected to bring about repeal of undesirable legislation is to be
subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth
Amendment than are most other types of legislation.
Nor need we enquire whether similar considerations enter into the review of statutes directed
at particular religious or national or racial minorities, whether prejudice against
discrete and insular minorities may be a special condition, which tends seriously to curtail the
operation of those political processes ordinarily to be relied upon to protect minorities, and
which may call for a correspondingly more searching judicial inquiry.

Wednesday, November 4, 2015

14:00 15:00
Comparative Constitutional Law, Christof Maria Fritzen
Continuation of the morning session

Thursday, November 5, 2015

9:00 10:30
Comparative Constitutional Law, Christof Maria Fritzen
Religious freedom
- School prayers
- Freedom of establishment
- Crosses in classrooms
- Christian religious symbols or pieces of interior decoration?

Engel v. Vitale, 370 U.S. 421 (1962)

School Prayer case, German Cstl. Ct., 52 BVerfGE 223 (1979)
W. Cole Durham, General Assessment of the Basic Law, An American View, p. 4749
Lautsi and others v. Italy, European Court of Human Rights, judgment of March 18,
2011



 
 














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2

Friday, November 6, 2015

9:00 10:30
Comparative Constitutional Law, Christof Maria Fritzen
Abortion

Roe v. Wade, 410 U.S. 113 (1973

Abortion case I, German Cstl. Ct., 39 BVerfGE 1 (1975)
Patrick Glenn, The Constitutional validity of Abortion Legislation: A Comparative
Note, 21 McGill L. J. 673 (1975)

Roe v. Wade, 410 U.S. 113 (1973)

(Summary)
Jane Roe was an unmarried and pregnant Texas resident in 1970. Texas law made it a felony to
abort a fetus unless on medical advice for the purpose of saving the life of the mother. Roe filed
suit against Wade, the district attorney of Dallas County, contesting the statue on the grounds that it
violated the guarantee of personal liberty and the right to privacy implicitly guaranteed in the First,
Fourth, Fifth, Ninth, and Fourteenth Amendments. In deciding for Roe, the Supreme Court
invalidated any state laws that prohibited first trimester abortions.

Key excerpts from the majority opinion:

MR. JUSTICE BLACKMUN delivered the opinion of the Court. Chief Justice Burger and Justices
Douglas, Brennan, Stewart, Marshall and Powell joined the opinion.
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion
controversy, of the vigorous opposing views, even among physicians, and of the deep and
seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's
exposure to the raw edges of human existence, one's religious training, one's attitudes toward life
and family and their values, and the moral standards one establishes and seeks to observe, are all
likely to influence and to color one's thinking and conclusions about abortion.
The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a
right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant
would discover this right in the concept of personal "liberty" embodied in the Fourteenth
Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be
protected by the Bill of Rights or its penumbras.
The Constitution does not explicitly mention any right of privacy. [T]he Court has recognized
that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under
the Constitution. This right of privacy, whether it be founded in the Fourteenth Amendment's
concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District
Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to
encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the
State would impose upon the pregnant woman by denying this choice altogether is apparent.
Specific and direct harm medically diagnosable even in early pregnancy may be involved.
Maternity, or additional offspring, may force upon the woman a distressful life and future.
Psychological harm may be imminent. Mental and physical health may be taxed by child care.
There is also the distress, for all concerned, associated with the unwanted child, and there is the
problem of bringing a child into a family already unable, psychologically and otherwise, to care for
it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed
motherhood may be involved. All these are factors the woman and her responsible physician
necessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici argue that the woman's right is
absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and
for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas
either has no valid interest at all in regulating the abortion decision, or no interest strong enough to
support any limitation upon the woman's sole determination, are unpersuasive. The Court's
decisions recognizing a right of privacy also acknowledge that some state regulation in areas

Abortion case I, German Constitutional Court,

39 BVerfGE 1 (1975)
A contrast to Roe v. Wade
The German Supreme Court tackled the issue of abortion two years after
Roe v. Wade, affirming that the unborn have a right to life guaranteed by the
constitution, that abortion is "an act of killing", and that the unborn child
deserves legal protection throughout its development. The decision is an
instructive contrast to Roe because it cuts across the usual categories, and
cannot be described as "liberal" or "conservative".
Notably, it said that the state has a duty to use "social, political, and welfare
means" to foster developing human life, and that these are preferable to
penal measures (though the latter are not ruled out). The decision came
several years after decisions in the U.S. and Britain legalized abortion. It
struck down a law that legalized some abortions in the first three months.
The decision considered the full range of arguments for abortion, both early
(legalization had been a topic of debate in Germany since the turn of the
century) and recent (used in other countries such as the United States and
Britain that legalized abortion several years before). In particular, it
specifically rejected the main points of reasoning in Roe v. Wade as well as
its "term solution" as inconsistent with the constitutional guarantee of the
right to life.
The part of the German constitution referred to in the decision, Article 1,
Paragraph 1, says that "Everyone has the right to life", but does not
specifically mention the unborn.
The decision was confirmed after the reunification of Germany, striking
down East German laws which permitted abortions under most
circumstances.
It should be noted that the decision does not make all abortions illegal. The legislature
implemented a system of mandatory counseling which has as one of its goals to present the case
that the developing unborn child is an independent human life. However, no legal sanction is
applied in the first 3 months of pregnancy if the counseling is completed and the abortion is
performed. Despite some of the reasoning contained in the decision, this system has not been
found by the court to conflict with the constitution. Some abortions are therefore de facto legal. A
significant number still occur, but the incidence per capita is about one-fifth that of the United
States.

protected by that right is appropriate. As noted above, a State may properly assert important
interests in safeguarding health, in maintaining medical standards, and in protecting potential life.
At some point in pregnancy, these respective interests become sufficiently compelling to sustain
regulation of the factors that govern the abortion decision. The privacy right involved, therefore,
cannot be said to be absolute.We, therefore, conclude that the right of personal privacy includes
the abortion decision, but that this right is not unqualified, and must be considered against important
state interests in regulation.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its
effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting
its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways
that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of
human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in
appropriate medical judgment, for the preservation of the life or health of the mother.
This holding, we feel, is consistent with the relative weights of the respective interests involved,
with the lessons and examples of medical and legal history, with the lenity of the common law, and
with the demands of the profound problems of the present day. The decision leaves the State free to
place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those
restrictions are tailored to the recognized state interests. The decision vindicates the right of the
physician to administer medical treatment according to his professional judgment up to the points
where important state interests provide compelling justifications for intervention. Up to those
points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and
basic responsibility for it must rest with the physician. If an individual practitioner abuses the
privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional,
are available.

Extracts from the decision

"Abortion is an act of killing"

The interruption of pregnancy irrevocably destroys an existing human life. Abortion is an act of
killing. The description now common, "interruption of pregnancy," cannot camouflage this fact.
No legal regulation can pass over the fact that this act offends against the fundamental
inviolability and indisposability of human life protected by Article 2, Paragraph 2, Sentence 1, of
the Basic Law.
.
The security of human existence against encroachments by the state would be incomplete if it did
not also embrace the prior step of "completed life," unborn life.
.

Right to Life implies state's duty to foster life

The State's duty to protect forbids not only direct state attacks against life developing itself, but
also requires the state to protect and foster this life.
.
The guiding principle of the precedence of prevention over repression is also valid particularly
for the protection of unborn life. It is therefore the task of the state to employ, in the first
instance, social, political, and welfare means for securing developing life. The primary concern is
to strengthen readiness of the expectant mother to accept the pregnancy as her own responsibility
and to bring the child [in the womb] to full life. Regardless of how the state fulfills its obligation
to protect, it should not be forgotten that developing life itself is entrusted by nature in the first
place to the protection of the mother. To reawaken and, if required, to strengthen the maternal
duty to protect, where it is lost, should be the principal goal of the endeavors of the state for the
protection of life. Of course, the possibilities for the legislature to influence are limited. Measures
introduced by the legislature are frequently only indirect and effective only after completion of
the time-consuming process of comprehensive education and the alteration in the attitudes an
philosophies of society achieved thereby.
.

Prevention is preferable to punishment

The legislature is not prohibited, in consideration of the points of view set out above, from
expressing the legal condemnation of abortion required by the Basic Law in ways other than the
threat of punishment. The decisive factor is whether the totality of the measures serving the
protection of the unborn life, whether they be in civil law or in public law, especially of a sociallegal or of a penal nature, guarantees an actual protection corresponding to the importance of the

legal value to be secured. In the extreme case, namely, if the protection required by the
constitution can be achieved in no other way, the lawgiver can be obligated to employ the means
of the penal law for the protection of developing life. The penal norm represents, to a certain
extent, the "ultimate reason" in the armory of the legislature. According to the principle of
proportionality, a principle of the just state, which prevails for the whole of the public law,
including constitutional law, the legislature may make use of this means only cautiously and with
restraint. However, this final means must also be employed, if an effective protection of life
cannot be achieved in other ways.
.

Legal norms and respect for life

The legislature, by repealing the punishability of abortions during the first twelve weeks,
deprives prenatal life in the future of the socio-ethical appreciation of its value among people.
That penal norms possess power to form the standards of socio-ethical judgment for the citizenry
corresponds to proven findings of legal sociology.
.
The term solution [as in Roe v. Wade] would lead to the disappearance of the general awareness
of the worthiness of protection of unborn life during the first three months of pregnancy. It would
lend support to the view that the interruption of pregnancy, in any case in the early stage of
pregnancy, is as subject to the unrestricted right of disposition of the pregnant woman as the
prevention of pregnancy.
.

Protection of unborn life is in contrast to Nazi legal reasoning

The express incorporation into the Basic Law of the self-evident right to life -- in contrast to the
Weimar Constitution -- may be explained principally as a reaction to the "destruction of life
unworthy of life," to the "final solution" and "liquidations," which were carried out by the
National Socialistic Regime as measures of state. Article 2, Paragraph 2, Sentence 1, of the Basic
Law, just as it contains the abolition of the death penalty in Article 102, includes "a declaration of
the fundamental worth of human life and of a concept of the state which stands in emphatic
contrast to the philosophies of a political regime to which the individual life meant little and
which therefore practiced limitless abuse with its presumed right over life and death of the
citizen."
.

Not only an individual matter

The condemnation of abortion must be clearly expressed in the legal order. The false impression
must be avoided that the interruption of pregnancy is the same social process as, for example,
approaching a physician for healing an illness or indeed a legally irrelevant alternative for the
prevention of conception. The state may not abdicate its responsibility even through the
recognition of a "legally free area," by which the state abstains from the value judgment and
abandons this judgment to the decision of the individual to be made on the basis of his own sense

of responsibility.
.

Abortion and the right to privacy

The obligation of the state to take the life developing itself under protection exists, as a matter of
principle, even against the mother. Without doubt, the natural connection of unborn life with that
of the mother establishes an especially unique relationship, for which there is no parallel in other
circumstances of life. Pregnancy belongs to the sphere of intimacy of the woman, the protection
of which is constitutionally guaranteed through Article 2, Paragraph 1, in connection with Article
1, Paragraph 1, of the Basic Law. Were the embryo to be considered only as a part of the maternal
organism the interruption of pregnancy would remain in the area of the private structuring of
one's life, where the legislature is forbidden to encroach. Since, however, the one about to be
born is an independent human being who stands under the protection of the constitution, there is
a social dimension to the interruption of pregnancy which makes it amenable to and in need of
regulation by the state. The right of the woman to the free development of her personality, which
has as its content the freedom of behavior in a comprehensive sense and accordingly embraces
the personal responsibility of the woman to decide against parenthood and the responsibilities
flowing from it, can also, it is true, likewise demand recognition and protection. This right,
however, is not guaranteed without limits -- the rights of others, the constitutional order, and the
moral law limit it. A priori, this right can never include the authorization to intrude upon the
protected sphere of right of another without justifying reason or much less to destroy that sphere
along with the life itself; this is even less so, if, according to the nature of the case, a special
responsibility exists precisely for this life.
.
A compromise which guarantees the protection of the life of the one about to be born and permits
the pregnant woman the freedom of abortion is not possible since the interruption of pregnancy
always means the destruction of the unborn life. In the required balancing, "both constitutional
values are to be viewed in their relationship to human dignity, the center of the value system of
the constitution". A decision oriented to Article 1, Paragraph 1, of the Basic Law must come
down in favor of the precedence of the protection of life for the child [in the womb] over the
right of the pregnant woman to self-determination. Regarding many opportunities for
development of personality, she can be adversely affected through pregnancy, birth and the
education of her children. On the other hand, the unborn life is destroyed through the interruption
of pregnancy. According to the principle of the balance which preserves most of competing
constitutionally protected positions in view of the fundamental idea of Article 19, Paragraph 2, of
the Basic Law, precedence must be given to the protection of the life of the child about to be
born. This precedence exists as a matter of principle for the entire duration of pregnancy and may
not be placed in question for any particular time.

HeinOnline -- 21 McGill L. J. 673 1975

HeinOnline -- 21 McGill L. J. 674 1975

HeinOnline -- 21 McGill L. J. 675 1975

HeinOnline -- 21 McGill L. J. 676 1975

HeinOnline -- 21 McGill L. J. 677 1975

HeinOnline -- 21 McGill L. J. 678 1975

HeinOnline -- 21 McGill L. J. 679 1975

HeinOnline -- 21 McGill L. J. 680 1975

HeinOnline -- 21 McGill L. J. 681 1975

HeinOnline -- 21 McGill L. J. 682 1975

HeinOnline -- 21 McGill L. J. 683 1975

HeinOnline -- 21 McGill L. J. 684 1975

Friday, November 6, 2015

14:00 15:00
Comparative Constitutional Law, Christof Maria Fritzen
Disccussion: EU Law and national law

M. v. Germany, European Court of Human Rights, December 17, 2009

European Convention of Human Rights and Fundamental Freedoms, Art. 5 1, Art 7

Title:
M. v. Germany
Application No: 19359/04
Respondent:
Germany
Referred by:
Date of reference
by Commission:
Date of reference
by State:
Date of
17-12-2009
Judgment:
Articles:
5-1
Conclusion:Violation of article 5-1
7-1
Violation of article 7-1
41
Compensation awarded
Keywords:
LAWFUL ARREST OR DETENTION / NULLA POENA
SINE LEGE
Summary:
(Press release)
The applicant is a German citizen, who was born in 1957 and is currently
detained in the Schwalmstadt Prison. After a long history of previous
convictions, the Marburg Regional Court convicted him of attempted murder
and robbery and sentenced him to five years' imprisonment in November 1986.
At the same time it ordered his placement in preventive detention
(Sicherungsverwahrung), relying on the report of a neurological and psychiatric
expert, who found that the applicant had a strong tendency to commit offences
which seriously harmed his victims' physical integrity, that it was likely he
would commit further acts of violence and that he was therefore dangerous to
the public. After having served his full prison sentence, the applicant's repeated
requests between 1992 and 1998 for a suspension on probation of his preventive
detention were dismissed by two regional courts, respectively relying on an
expert report and taking into consideration the applicant's violent and aggressive
conduct in prison. In April 2001 the Marburg Regional Court again refused to
suspend on probation the applicant's preventive detention and ordered its
extension beyond September 2001, when he would have served ten years in this
form of detention. This decision was upheld by the Frankfurt am Main Court of
Appeal in October 2001, finding, as had the lower court, that the applicant's
dangerousness necessitated his continued detention.
Both Courts relied on Article 67 d 3 of the Criminal Code, as amended in
1998. Under that provision, applicable also to prisoners whose preventive
detention had been ordered prior to the amendment, the duration of a convicted
person's first period of preventive detention could be extended to an unlimited
period of time. Under the version of the Article in force at the time of the
applicant's offence and conviction, a first period of preventive detention could

not exceed ten years. In February 2004 the Federal Constitutional Court
dismissed the applicant's constitutional complaint against these decisions in a
leading judgment, holding that the prohibition of retrospective punishment under
the German Basic Law did not extend to measures such as preventive detention,
which had always been understood as differing from penalties under the
Criminal Code's twin-track system of penalties on the one hand and measures of
correction and prevention on the other.
The applicant complained under Article 5 1 that his continued preventive
detention violated his right to liberty. In particular he alleged that there was not
a sufficient causal connection between his conviction in 1986 and his continued
detention after the completion of ten years in preventive detention. He further
complained under Article 7 1 that the retrospective extension of his detention
from a maximum of ten years to an unlimited period of time violated his right
not to have a heavier penalty imposed on him than the one applicable at the time
of his offence.
Article 5 1
The Court first confirmed that the applicant's preventive detention before expiry
of the ten-year-period was covered by Article 5 1 (a) as being detention "after
conviction" by the sentencing court.
As regards his preventive detention beyond the ten-year period, however, the
Court found that there was no sufficient causal connection between his
conviction and his continued deprivation of liberty. When the sentencing court
ordered the applicant's preventive detention in 1986 this decision meant that he
could be kept in this form of detention for a clearly defined maximum period.
Without the amendment of the Criminal Code in 1998 the courts responsible for
the execution of sentences would not have had jurisdiction to extend the
duration of the detention.
The Court moreover found that the applicant's continued detention had not been
justified by the risk that he could commit further serious offences if released, as
these potential offences were not sufficiently concrete and specific so as to fall
under sub-paragraph (c) of Article 5 1. Furthermore, the applicant could not
have been kept as a "person of unsound mind" within the meaning of Article 5
1 (e). The Frankfurt am Main Court of Appeal had found that he no longer
suffered from a serious mental disorder, which had been established earlier by
the lower courts.
The Court therefore unanimously concluded that the applicant's preventive
detention beyond the ten-year period amounted to a violation of Article 5 1.
Article 7 1
The Court principally had to determine whether preventive detention was to be

qualified as a penalty for the purpose of Article 7 1. Like a prison sentence,

preventive detention entailed a deprivation of liberty. In practice in Germany,
persons subject to preventive detention were detained in ordinary prisons. There
were minor alterations to the detention regime, but no substantial difference
could be discerned between the execution of a prison sentence and that of a
preventive detention order. Moreover, pursuant to the Execution of Sentences
Act both forms of detention served the aim of protecting the public and helping
the detainee to become capable of leading a responsible life outside prison.
The Court further noted, agreeing with the findings of the Council of Europe's
Commissioner for Human Rights and the European Committee for the
Prevention of Torture about preventive detention in Germany, that there was
currently no sufficient psychological support specifically aimed at prisoners in
preventive detention that would distinguish their condition of detention from
that of ordinary long-term prisoners.
As to the severity of preventive detention, the Court noted that following the
change in law in 1998 the measure no longer had a maximum duration and that
the condition for its suspension on probation - there being no danger the
detainee would re-offend - was difficult to fulfil. The measure was therefore
among the severest which could be imposed under the German Criminal Code.
The Court therefore concluded that preventive detention was indeed to be
qualified as a penalty.
The Court was further not convinced by the Government's argument that the
extension of the applicant's detention merely concerned the execution of the
penalty imposed on the applicant by the sentencing court. Given that at the time
of the offence the applicant could have been kept in preventive detention only
for a maximum of ten years, the extension constituted an additional penalty
which had been imposed on the applicant retrospectively.
The Court therefore unanimously concluded that there had been a violation of
Article 7 1.
Article 41
The Court awarded the applicant 50,000 euros in respect of non-pecuniary
damage.

M. v. Germany, ECtHR, Strasbourg, December 17, 2009, timeline

1986

1992

1998

M. sentenced to
- imprisonment 5y
- prev. detention,
max 10 y

M.s repeated requests for

suspension on probation
of prev. detention, refused

2001

2004

2009

April, Marburg Court:

prev. detention
extended beyond
Sep 2001, no limit

Fed. Cstl. Ct:

M. cstl. complaint
against Frankfurt
Ct. of Appeals
dismissed

ECtHR:
M.s complaint
accepted:
violation of
Art. 5-1, 7-1,
compensation

Frankfurt Ct of App:
Confirmed

Change of German
Criminal Code,
sec 67 d 3:
no max time for
detention

Federal Constitutional Court - Press office Press release no. 31/2011 of 4 May 2011
Judgment of 4 May 2011
Preventive Detention I
2 BvR 2365/09, 2 BvR 740/10
Preventive Detention II
2 BvR 2333/08, 2 BvR 1152/10, 2 BvR 571/10

Provisions on Preventive Detention Unconstitutional

Today, the Federal Constitutional Court pronounced its judgment on the

constitutional complaints lodged by four detainees under preventive
detention. They object to their placement in preventive detention being
continued after the expiry of the ten-year maximum period provided by
the former legislation (Preventive Detention I case) and respectively,
to preventive detention being imposed retrospectively (Preventive
Detention II case).
Information on the facts of the cases is given in Press Release no.
117/2010 of 16 December 2010. It can be accessed on the Federal
Constitutional Courts website (in German).
The Second Senate of the Federal Constitutional Court decided that all
provisions of the Criminal Code (Strafgesetzbuch) and of the Juvenile
Court Act (Jugendgerichtsgesetz) on the imposition and duration of
preventive detention are not compatible with the fundamental right to
liberty of the detainees under preventive detention from Article 2.2
sentence 2 in conjunction with Article 104.1 of the Basic Law
(Grundgesetz GG) because the provisions do not satisfy the
constitutional requirement of establishing a distance between preventive
detention and prison sentences (Abstandsgebot).
Furthermore, the Federal Constitutional Court held that the provisions
on the retrospective prolongation of preventive detention beyond the
former ten-year maximum period and on the retrospective imposition of
preventive detention in criminal law relating to adult and to juvenile
offenders infringe the rule-of-law precept of the protection of
legitimate expectations under Article 2.2 sentence 2 in conjunction with
Article 20.3 GG.
The Federal Constitutional Court ordered the continued applicability of
the provisions that were declared unconstitutional until the entry into
force of new legislation, at the latest until 31 May 2013. In essence,
it made the following transitional arrangements:
1. In the so-called old cases, i.e. cases in which preventive detention
continues beyond the former ten-year maximum period, and in cases of
retrospective preventive detention, placement in preventive detention or
its continuance may only be imposed if a high risk of the detainees
committing most serious crimes of violence or sexual offences can be
inferred from specific circumstances of the detainees person or conduct
and where the detainee suffers from a mental disorder within the meaning
of 1.1 no. 1 of the Therapy Placement Act
(Therapieunterbringungsgesetz). The executing courts must immediately

examine whether these prerequisites of continued preventive detention

exist; where they do not exist, the courts are to order the release of
the detainees under preventive detention affected until 31 December 2011
at the latest.
2. In the transitional period, the other provisions on the imposition
and duration of preventive detention may only be applied subject to the
proviso of a strict review of proportionality; as a general rule,
proportionality is only respected where there is a danger of the person
affected committing serious crimes of violence or sexual offences in the
future.
The Senate rescinded the court rulings challenged by the constitutional
complaints and based on the unconstitutional provisions because they
infringe the complainants fundamental right to liberty and their
constitutional concerns relating to the protection of legitimate
expectations and referred the matters back to the non-constitutional
courts for new rulings.
In essence, the decision is based on the following considerations:
I. Interpretation of the Basic Law in a manner that is open to
international law
1. The final and binding effect of the Federal Constitutional Courts
decision of 5 February 2004 (2 BvR 2029/01), which declared the
elimination of the ten-year maximum period for preventive detention that
had applied previously and the application of the new legislation to the
so-called old cases constitutional, does not constitute a procedural bar
against the admissibility of the constitutional complaints. This is
because the decisions of the European Court of Human Rights (ECtHR),
which contain new aspects for the interpretation of the Basic Law, are
equivalent to legally relevant changes, which may lead to the final and
binding effect of a Federal Constitutional Court decision being
transcended.
This is the case here with regard to the judgment of the ECtHR of 17
December 2009 by which the Court held that the retrospective
prolongation of preventive detention infringes the right to liberty from
Article 5 of the European Convention on Human Rights (ECHR) and the ban
on retrospective punishment provided in Article 7 ECHR.
2. It is true that at national level, the European Convention on Human
Rights ranks below the Basic Law. However, the provisions of the Basic
Law are to be interpreted in a manner that is open to international law
(vlkerrechtsfreundlich). At the level of constitutional law, the text
of the Convention and the case-law of the European Court of Human Rights
serve as interpretation aids for the determination of the contents and
scope of the fundamental rights and of rule-of-law principles enshrined
in the Basic Law.
An interpretation that is open to international law does not require the
Basic Laws statements to be schematically aligned with those of the
European Convention on Human Rights but requires its valuations to be
taken on to the extent that this is methodically justifiable and
compatible with the Basic Laws standards.
II. Liberty right infringement distance requirement
The serious encroachment upon the right to liberty which preventive
detention constitutes can only be justified if it is subject to a strict
review of proportionality and if strict requirements placed on the

decisions on which it is based and on the organisation of its execution

are satisfied. The existing provisions regarding preventive detention do
not satisfy the constitutional (minimum) requirements with regard to the
arrangement of the execution of preventive detention.
Due to the fundamentally different objectives and bases of legitimation
of prison sentences and preventive detention, the deprivation of liberty
effected by preventive detention must keep a marked distance from the
execution of a prison sentence (so-called distance requirement
(Abstandsgebot)). While a prison sentence serves the retribution of
culpably committed offences, the deprivation of liberty of a detainee
under preventive detention solely pursues preventive objectives, namely
the prevention of criminal offences in the future. It is exclusively
based on a prognosis of future dangerousness and in the interest of the
general publics safety it imposes a special sacrifice, so to speak, on
the person affected. Therefore, preventive detention is only justifiable
if with regard to its arrangement, the legislature takes due account of
the special character of the encroachment that it constitutes and
ensures that further burdens beyond the indispensable deprivation of
external liberty are avoided. This must be taken account of by a
liberty-oriented execution aimed at therapy which clearly shows to the
detainee under preventive detention and to the general public the purely
preventive character of the measure. What is required for this is an
overall concept of preventive detention with a clear therapeutic
orientation towards the objective of minimising the danger emanating
from the detainee and of thus reducing the duration of the deprivation
of liberty to what is absolutely necessary. The placement in preventive
detention must be visibly determined by the perspective of regaining
liberty. The liberty-oriented adherence to the distance requirement also
takes account of the valuations made by the European Court of Human
Rights with regard to Article 7.1 ECHR, which already held in its
judgment of 17 December 2009 that preventive detention was a penalty by
its nature due to its lack of distance from the execution of prison
sentences, and emphasised the necessity of special individual support of
the detainee under preventive detention.
The distance requirement, which is enshrined in constitutional law,
binds all state authority and is primarily directed at the legislature,
which is required to develop an overall concept of preventive detention
in line with this requirement and to lay it down in corresponding
legislation. The legislation must at minimum comprise the following
aspects: preventive detention may only be ordered and executed as the
ultima ratio. Where therapeutic treatment is necessary, it must begin so
early during the preceding execution of the prison sentence, and must be
carried out so intensively, that it will be terminated, whenever
possible, before the end of the prison sentence. At the beginning of the
execution of preventive detention at the latest, an examination with a
view to treatment must be conducted which complies with state-of-the-art
scientific requirements; on the basis of the examination, an execution
plan is to be drawn up and intensive therapeutic care of the detainee by
qualified personnel must be conducted which opens up a realistic
perspective of release. The cooperation of the person concerned in this
process is to be encouraged by targeted motivational work. To take
account of the preventive detentions character of special crime
prevention, life in preventive detention must be adapted to the general
living conditions to the extent that there are no conflicting security
concerns. This does not require the complete spatial detachment of
preventive detention from the execution of prison sentences; detainees
under preventive detention must, however, be accommodated separately
from the prison regime in special buildings and wards which comply with
the therapeutic requirements, in which family and social contacts with
the outside world are possible and which have sufficient personnel

resources. Moreover, the legal concept of preventive detention must

contain standards for the relaxation of the execution rules and for the
preparation of release. Furthermore, the detainee must be granted an
effectively enforceable legal claim to the measures reducing his
dangerousness being implemented. Finally, the continuation of the
preventive detention is to be judicially reviewed at least once a year.
The present provisions on preventive detention, and consequently their
actual execution, do not satisfy these requirements. Instead, the
legislature has expanded preventive detention more and more without
taking into account the distance requirement, which was put into
concrete terms by the Federal Constitutional Courts judgment of 5
February 2004. Without complying with the distance requirement, the
institution of preventive detention on the whole cannot be reconciled
with the fundamental right to liberty of the detainees under preventive
detention. The Federal and the Land (state) legislatures together are
under the duty to develop a liberty-oriented overall concept of
preventive detention aimed at therapy which does not leave decisive
issues to the executives and the judiciarys decision-making power but
determines their action in all relevant areas.
III. Infringement of the principle of the protection of legitimate
expectations
Furthermore, the provisions regarding the retrospective prolongation of
preventive detention beyond the former ten-year maximum period and
regarding the retrospective imposition of preventive detention infringe
the rule-of-law principle of the protection of legitimate expectations
under Article 2.2 sentence 2 in conjunction with Article 20.3 GG.
The provisions contain a serious encroachment on the confidence of the
group of persons concerned in preventive detention ending after ten
years (regarding the so-called old cases) or in preventive detention not
being imposed (regarding the cases in which preventive detention was
imposed retrospectively). In view of the serious encroachment on the
right to liberty involved with preventive detention, the concerns
regarding the protection of legitimate expectations affected carry
particular weight under constitutional law, which is further increased
by the valuations of the European Convention on Human Rights. According
to the valuation of Article 7.1 ECHR, the result of the insufficient
distance of the execution of preventive detention from that of prison
sentences is that the weight of the confidence of the persons affected
comes close to an absolute protection of legitimate expectations.
Furthermore, the valuations of Article 5 ECHR are to be taken into
account on the part of the persons affected who are placed in preventive
detention. According to this provision, and taking into account the
case-law of the ECtHR, in the cases of preventive detention having been
prolonged or ordered retrospectively that are at issue here, a
justification of the deprivation of liberty can only be considered in
practice if an unsound mind within the meaning of Article 5.1 sentence 2
lit e ECHR exists. The provision requires the existence of a mental
disorder that has been reliably ascertained and is continuing. The legal
provisions must provide the diagnosis of such disorder as an explicit
constituent element. Furthermore, to be justified, the deprivation of
liberty requires that the placement in preventive detention of the
person affected be organised in a way that takes into account the fact
that the person is under preventive detention due to a mental disorder.
Taking these valuations into account, and with a view to the
considerable encroachment on the confidence of the detainees under
preventive detention whose right to liberty is affected, the legitimate
legislative objective of the challenged provisions, namely to protect

the general public from dangerous offenders, to a large extent takes

second place to the confidence, protected by fundamental rights, of the
group of persons affected. A deprivation of liberty through preventive
detention which is ordered or prolonged retrospectively can therefore
only be regarded as still proportionate if the required distance from
punishment is kept, if a high danger of most serious crimes of violence
or sexual offences can be inferred from specific circumstances of the
detainees person or conduct and if the requirements of Article 5.1
sentence 2 ECHR are satisfied. Only in such exceptional cases can a
predominance of public safety interests still be assumed.
The provisions at issue here do not satisfy these requirements. They
also cannot be interpreted in such a way that they are still
constitutional.
IV. Transitional arrangement
To avoid a "legal vacuum", the Federal Constitutional Court did not
declare the unconstitutional provisions void but ordered their continued
applicability for a limited period of time. This is because the
declaration of nullity of the relevant provisions would have the
consequence that a legal basis for continuing preventive detention would
be lacking; all persons placed in preventive detention would have to be
released immediately, which would cause almost insoluble problems to the
courts, the administration and the police.
With a view to the extent of the overall concept of preventive detention
which must be developed by the legislature, to the necessary creation of
additional personnel resources and to the implementation of the measures
necessary to spatially separate preventive detention and imprisonment,
continued applicability must be ordered for a period of two years.
However, with regard to the encroachment on fundamental rights resulting
from preventive detention, a transitional arrangement is required to
ensure that the minimum constitutional requirements are satisfied.
Regarding the provisions that are incompatible with the requirement of
the protection of legitimate expectations (III.), the Therapy Placement
Act, which entered into force on 1 January 2011, must be drawn upon for
this. With this Act, the German legislature, taking into account the
special requirements of the European Convention on Human Rights, has
created another category for the placement of persons with mental
disorders who are potentially dangerous due to their criminal offences
which focuses on the present mental situation of the persons affected
and their dangerousness resulting therefrom.

This press release is also available in the original German version.

European Convention of Human Rights and Fundamental Freedoms

ARTICLE 5 - Right to liberty and security
1.
Everyone has the right to liberty and security of person. No
one shall be deprived of his liberty save in the following cases and
in accordance with a procedure prescribed by law:
(a)
the lawful detention of a person after conviction by a
competent court;
(b)
the lawful arrest or detention of a person for noncompliance
with the lawful order of a court or in order to secure the
fulfilment of any obligation prescribed by law;
(c)
the lawful arrest or detention of a person effected for
the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed
an offence or when it is reasonably considered necessary
to prevent his committing an offence or fleeing after
having done so;
(d)
the detention of a minor by lawful order for the purpose
of educational supervision or his lawful detention for
the purpose of bringing him before the competent legal
authority;
(e)
the lawful detention of persons for the prevention of the
spreading of infectious diseases, of persons of unsound
mind, alcoholics or drug addicts or vagrants;
(f)
the lawful arrest or detention of a person to prevent his
effecting an unauthorised entry into the country or of a
person against whom action is being taken with a view
to deportation or extradition.
..

ARTICLE 7 - No punishment without law

1.
No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a criminal
offence under national or international law at the time when it
was committed. Nor shall a heavier penalty be imposed than
the one that was applicable at the time the criminal offence was
committed.
2.
This Article shall not prejudice the trial and punishment of
any person for any act or omission which, at the time when it was
committed, was criminal according to the general principles of
law recognised by civilised nations.