Category: Judiciary

Functions of Constitutions

In a response to a story that I blogged about yesterday, New Yorker Magazine Senior Editor, Hendrik Hertzberg, takes issue with the claim that the US Constitution has become increasingly irrelevant as a model for constitution-builders worldwide. Hertzberg writes:

The problem is that the study focusses almost exclusively on rights—the individual and civil rights that are specified in written constitutions. But it almost totally ignores structures—the mundane mechanisms of governing, the nuts and bolts, which is mainly what constitutions, written and unwritten, are about, and which determine not only whether rights are truly guaranteed but also whether a government can truly function in accordance with democratic norms. Or function at all with any semblance of efficiency, effectiveness, and accountability.

In Chapter 6 of the Dyck text, we learn that there are five main functions of any constitution, the first one of which “to define the structure of major institutions of government.” Other major functions are:

  • To divide powers and responsibilities among the various institutions of government
  • To regulate relations between the citizen and the state (this is where rights–civil, legal, political, sometimes economic, social and cultural–are enumerated)
  • To serve as a political symbol
  • To specify a method for amending the constitution

What does the study in question say about whether the US Constitution is being used as a template in these other areas? You’ll have to wait until the study is published in June of this year to find out.

 

 

Rwandan Journalists Jailed for Stirring up Ethnic Tensions

Last week in IS 302, we addressed the issue of how governments should approach the existence of ethnic division in a post-conflict setting. We saw that Rwanda and Burundi have chosen different approaches. Burundi’s leaders have decided to address ethnic grievances via assuring ethnic balance in important institutions such as the military. Rwanda’s government has chosen a different approach, endeavouring to make the society as ethnicity-blind as possible. As such, there has been a zero-tolerance policy with respect to any demonstration or acknowledgement of ethnic particularism. As a recent Amnesty International report states unequivocally:

Rwanda’s laws banning “genocide ideology” and “sectarianism” are vague and sweeping, and have been used to silence legitimate dissent. The laws were designed to encourage unity and restrict speech that could lead to hatred. However, they have had dangerous and chilling effect on Rwandan society.”

The most recent example of this “dangerous and chilling effect on Rwandan society” is news of the conviction of two Rwandan journalists of having “stirred up ethnic divisions.” As this BBC article makes clear, it seems highly likely that President Paul Kagame has been using the role of “hate media” during the Rwandan genocide to silence legitimate opposition:

Editor Agnes Nkusi was sentenced to 17 years, while reporter Saidath Mukakibibi was imprisoned for seven. Among several articles, the judge referred to one saying some Rwandans were unhappy with the country’s rulers. Prosecutors said this was “meant to stir [up] hatred and fury against the government”.

President Paul Kagame came to power in 1994, ending the genocide in which some 800,000 ethnic Tutsis and moderate Hutus were slaughtered. He has recently been accused of intolerance and harassing anyone who criticises him. His government defends its tough media laws, pointing to the role of “hate media” ahead of the genocide.

The newspaper was suspended for six months last year, just ahead of elections which saw Mr Kagame re-elected by a landslide. Nkusi was found guilty of disrupting state freedom, propagating ethnic division, genocide revisionism and libel.

Failed States and the Fund for Peace’s Failed States Index 2010

On Thursday, September 23rd we will begin to analyse the exceptionally important concept–the state. It will become strikingly obvious that a strong state is a necessary–but not sufficient–condition for political stability, political and personal liberty, democracy, and economic well-being. Conversely, citizens living in weak, failing, or failed states face lives of economic destitution, personal insecurity (think of Hobbes’ state of nature, where life is nasty, brutish, and short), and lack of basic rights and freedoms. The Fund for Peace publishes an annual index of failed and failing states. A quick look at the results over the last decade or so finds that the same dozen or so states are continually at the top of the list of failed/failing states. Here is a map depicting the results of the most recent index:

Notice the geographical concentration of failed states (in red). Why are the vast majority of the world’s failed states found in central Africa and southwest Asia?

What are the characteristics of failed states that distinguish them from more stable states? Maybe this video of life in Somalia will provide some clues:

India–an “exceptional” Country with Democratic Deficit

In comparative politics, there are two countries that are truly exceptional–the USA and India.  By “exceptional”, I mean just that; they are both exceptions to general rules that have solid support, empirically and theoretically.  For example, when looking cross-nationally there is a strong negative relationship between religiosity and economic development.  That is, the richer a country, the less religious (ceteris paribus) are its residents.  Except for the United States.  The USA is exceptional in many regards; i.e., it doesn’t behave like all other advanced industrial democracies.

India is also exceptional, but in different ways from the US.  For example, there is strong support for hypotheses about democracy and social (ethnic/religious) heteroeneity, which suggest that there is no way that India should still be (after more than 60 years) a fairly well functioning democracy.  Many observers keep waiting for the other shoe to drop as India’s democracy has lurched from crisis-to-crisis, and has to contend with endemic levels of corruption, particularly in its judiciary (as we see in this excerpted report–written by the Asian Human Rights Commission and which I found at the Human Security Gateway, a great source for information about security issues in world politics).  Somehow, though, India’s democracy hangs on.

By recommending the impeachment of a High Court judge, the Chief Justice of India has revived a dead debate concerning the Indian judiciary. On August 2, 2008 in a letter addressed to the Prime Minister, the Chief Justice recommended the impeachment of judge Soumitra Sen of Calcutta High Court. Judge Sen is accused of having been involved in financial misappropriation before he was appointed as a judge. It is reported that in 1984 while judge Sen was practising as a lawyer he was appointed as the receiver in a dispute concerning the Steel Authority of India. It is alleged that in the capacity of the receiver he misappropriated a sum of INR 2,500,000 [USD 59523], which judge Sen reportedly paid back on orders from the court. Later, he was appointed a judge at the Calcutta High Court in 2003. A judge accused of corruption facing impeachment, a process by which a sitting judge could be removed from service in India, is nothing special. A corrupt public servant is not worthy of continuing in service and is least desirable to serve as a judge in a court of law, a public office that demands scrupulous impartiality and untainted personality. Anyone accused of a crime must be prosecuted and the crime investigated into. The fact that the accused is a judge must not provide the person with any immunity. Judge Sen being the first person recommended for impeachment by a Chief Justice of India does not mean that the judiciary is immune from corruption and other vicious practices. There are similar allegations against some judges in India. But not a single judicial officer was impeached so far. The only exception was the case of judge V. Ramaswami who faced impeachment in 1991, an attempt that failed due to the absence of a political consensus. It is expected that history will not be repeated. If it is repeated it would be a shame upon the Indian judiciary and its accountability. The accountability of judges, particularly in the context of increasing allegations of malpractices resorted to by judges is a grave concern in India. As of now there is no open process for the selection, promotion and if required the dismissal of High Court or Supreme Court judges in the country. The entire process is retained within the whims of the Supreme Court. All attempts so far to enforce accountability on the judiciary were vetoed by the judiciary itself. There is also the absence of a political consensus over this issue.