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101. Inclusive constitution making in fragile and conflict-affected states

Author:
Clare Castillejo
Publication Date:
05-2018
Content Type:
Working Paper
Institution:
Norwegian Centre for Conflict Resolution
Abstract:
Support for constitution making is an important element of international engagement in countries emerging from conflict or political transition. This support often focuses on promoting inclusive constitution making, recognising that this can help establish a more inclusive state and social contract, and address exclusion-related drivers of fragility. However, such support is frequently based on an incorrect assumption that an inclusive constitution-making process leads automatically to inclusive content and outcomes. This report examines key elements required to promote inclusion in the constitution-making process, the constitutional text, and in terms of outcomes from the new constitution. It argues that constitution making in fragile and conflict-affected states must be understood as part of wider political settlement bargaining that shapes the opportunity structures for promoting inclusion at every stage. Finally, the report examines both the important role international actors can play in supporting inclusive constitution making and the challenges they face in doing so.
Topic:
Constitution, Fragile States, State Violence, and Armed Conflict
Political Geography:
Global Focus

102. American Constitutional Theory and History: Implications for European Constitutionalism

Author:
Roger Pilon
Publication Date:
10-2018
Content Type:
Journal Article
Journal:
The Cato Journal
Institution:
The Cato Institute
Abstract:
It is perhaps not impertinent to suggest that American constitutional theory and history, owing to the longevity of the document that is their subject, hold lessons for constitutionalism everywhere, but especially for European constitutionalism—the more recent and ever evolving treaties that serve as a “Constitutional Charter” for the European Union. An American constitutionalist looking east today, seeing everything from Brexit to Grexit plus the reactions in European capitals, must be struck by the tension in the EU between exclusion and inclusion in its many forms, including individualism and collectivism. Those themes underpin my discussion here. The issues surrounding them are universal. They are at the heart of the human condition.
Topic:
Markets, History, European Union, and Constitution
Political Geography:
Europe, North America, and United States of America

103. Theocracy vs Constitutionalism in Japan: Constitutional Amendment and the Return of Pre-war Shinto Nationalism

Author:
Naoko Kumada
Publication Date:
05-2018
Content Type:
Working Paper
Institution:
Centre for Non-Traditional Security Studies, S. Rajaratnam School of International Studies
Abstract:
This paper offers an understanding of the scope, nature, and context of constitutional change being proposed in Japan today, in internal terms rather than through external reconstruction. Rather than being a mere reaction to “external circumstances”, as portrayed by its apologists and by “realist/rational-reconstructionist” analysis, the movement to amend and replace the Constitution is a project with a history, underpinned by a worldview and driven by an ideology that provide it with its own momentum. The most overlooked aspect of the movement is religion. From the Meiji Restoration until the end of the War, Japan was governed through a religio-political system based on a newly invented State Shintoism. The scope and intent of today’s movement to amend/replace the Constitution cannot be understood without this background in mind. Failure to account for the ideological, cultural, historical, and indeed the constitutional dimensions of the issue seriously underplays the stakes for Japan and its neighbours. The constitutional movement is part of a multi-generational project to restore what its leaders declare to be the “true shape of Japan”, with the pre-war religious ideology and constitutional form that they deem to have been unjustly replaced by the US occupation administration after Japan’s defeat.
Topic:
Imperialism, Reform, Constitution, and Domestic Politics
Political Geography:
United States, Japan, Asia, and Asia-Pacific

104. From coup to constitution: The impact of Turkey’s attempted coup on the constitutional referendum – a series on Turkish constitutionalism, part 2

Author:
Mason Hill
Publication Date:
01-2018
Content Type:
Journal Article
Journal:
Harvard Journal of Middle Eastern Politics and Policy
Institution:
The John F. Kennedy School of Government at Harvard University
Abstract:
This is the second in a three part series on Turkish constitutionalism one year after the 2017 constitutional referendum. At Erdoğan’s election in 2002, he appeared to be the latest in a line of populists elected to office. Initially, his success seemed the result of an ability as an Islamist to appease the concerns of the secular establishment. This was bolstered by his stated commitment to Turkey’s accession to the European Union. While in the 1990s Islamist reformers failed to pass institutional reforms aimed at decreasing military control of Turkish politics, the military allowed Erdoğan the space to pursue institutional reform that would enhance Turkey’s chances of becoming a member of the European Union. This attempt by the Justice and Development Party (AKP) to reimagine Turkish democracy for the 21st century took the form of a general push for constitutional reform.
Topic:
Politics, Governance, Law, Elections, Constitution, Recep Tayyip Erdoğan, and Coup
Political Geography:
Turkey and Middle East

105. Remembering 1962: The Turkish constitutional referendum in context a series on Turkish constitutionalism, part 1

Author:
Mason Hill
Publication Date:
01-2018
Content Type:
Journal Article
Journal:
Harvard Journal of Middle Eastern Politics and Policy
Institution:
The John F. Kennedy School of Government at Harvard University
Abstract:
This is the first in a three part series on Turkish constitutionalism one year after the 2017 constitutional referendum. Constitutions are nations’ mission statements, and articulate pre-political commitments that turn residents into citizens, and borders into a nation. In Turkey, generations of political leaders have used constitutional reform as an opportunity to set their political agenda and highlight their priorities. The 2017 referendum must be understood in the context of a democracy where voters have experienced successive constitutional reforms aimed at complementing the mission each new generation of leaders gives itself. A view of modern Turkish history reveals the tendency of leaders to use constitutional reform to address deficiencies in their respective administrations, and reflects the latent tension between populism, military intervention, and constitutional integrity.
Topic:
Politics, History, Law, Reform, and Constitution
Political Geography:
Europe, Turkey, and Middle East

106. Turkey’s constitutional referendum, one year later – a series on Turkish constitutionalism, part 3

Author:
Mason Hill
Publication Date:
01-2018
Content Type:
Journal Article
Journal:
Harvard Journal of Middle Eastern Politics and Policy
Institution:
The John F. Kennedy School of Government at Harvard University
Abstract:
This is the third in a three part series on Turkish constitutionalism one year after the 2017 constitutional referendum. the 2017 Constitutional Referendum have only entrenched that reality. Erdogan’s dominance in Turkish politics should not obscure the fact that the individual office holder rather than an ideologically-grounded bloc is now the fulcrum upon which Turkish politics shifts. The Justice and Development Party (AKP) that came to power promising reform, religious pluralism and market-friendly economic policies has become a vehicle for Erdoğan’s personal ambition. After the Gezi Park protests and amid allegations of his son’s corruption, Erdogan became an increasingly polarizing personality in Turkish politics who weighed down the AKP brand in the 2015 parliamentary elections. Yet Erdoğan’s popularity returned during the pivotal moment of the 2016 coup attempt, when he appeared in a live interview with a reporter via Facetime. By the time 2017 referendum campaign, Erdoğan personally rather than AKP parliamentarians was the medium around which responses were polarized. The extension of Erdoğan’s personal control over the levers of power was particularly apparent in the referendum’s changes to the structure of the legislative and judicial branches of the Turkish government, granting legal justification to Erdoğan’s de facto force of personality regime. Developments over the past year have made clear that Turks are increasingly casting votes for and against candidates rather than parties.
Topic:
Politics, Elections, Constitution, Recep Tayyip Erdoğan, and Coup
Political Geography:
Europe, Turkey, and Middle East

107. The Legal Regime and Political Economy of Land Rights Of Scheduled Tribes in the Scheduled Areas of India

Author:
Namita Wahi and Ankit Bhatia
Publication Date:
03-2018
Content Type:
Special Report
Institution:
Centre for Policy Research, India
Abstract:
Context: India holds the unique distinction of being both the world's largest constitutional democracy and also one of its fastest growing economies. Critical to the process of India's economic development is state acquisition of land for infrastructure and industrial development. Creating a legal framework that ensures equitable and efficient acquisition of land by the state, through processes that are socially inclusive and politically feasible, has proved challenging. While the Indian Constitution guarantees property rights to all, it enshrines special protections for land rights of ‘Scheduled Tribes’, vis-a-vis the state and other communities, in geographically demarcated tribal majority areas known as ‘Scheduled Areas’ under the Fifth and Sixth Schedules of the Constitution. The currently designated Fifth Scheduled areas are in the states of Andhra Pradesh, Telangana, Gujarat, Jharkhand, Chhattisgarh, Himachal Pradesh, Madhya Pradesh, Maharashtra, Orissa, and Rajasthan. The currently designated Sixth Schedule areas are in the north-eastern states of Assam, Meghalaya, Tripura, and Mizoram. The Scheduled Tribes (STs) or adivasis consist of a number of heterogeneous tribal groups that have historically self-identified and been identified by the British colonial and independent Indian states, as lying outside the mainstream of Hindu society, partly because of their ’distinctive culture and way of life as a group’, and partly because of their ‘geographical isolation’. Currently, there are 750 tribes in 26 states and 6 union territories of India. The Constitution guarantees special protections for land rights of Scheduled Tribes in Scheduled areas because land is not only the most important source of tribal livelihoods, but it is also central to their community identity, history and culture. Many non-Scheduled area states have also created legal protections for protecting land rights of tribals. However, CPR Land Rights Initiative research shows that despite these special protections, Scheduled Tribes remain one of the most vulnerable, most impoverished, and most displaced of all groups in India. 47.1% of all STs in rural areas are below the poverty line as compared to 33.8% for the national average, whereas 28.8% of all STs in urban areas are below the poverty line as compared to 20.9% for the national average. Inspite of being the only group with constitutional protections for their land rights, 9.4 % of STs are landless compared to 7.4% for the national average. While STs constitute only 8.6% of the total population, it is estimated that they constitute 40% of all people who have been displaced during the period 1951 to 1990, some more than once, due to the construction of dams, mines, industrial development, and the creation of wildlife parks and sanctuaries. Only 24.7% of ST population that was displaced during this period was rehabilitated. Therefore, it is clear that these groups have disproportionately borne the burden of economic development. Why is this so? The CPR Land Rights Initiative report on ‘The legal and political economy of land rights of Scheduled Tribes in the Scheduled Areas of India’, offers some preliminary answers to these questions. Through a review of constitutional provisions, laws, and policies, governing the rights of Scheduled Tribes and the administration of Scheduled Areas, and the financial and administrative structures that effectuate these protections, the Report delineates a conflicting regime of protective and displacing laws, as well as conflicting policy narratives underlying these laws which facilitate the displacement of Scheduled Tribes and their corresponding landlessness. The Report also contains extensive primary data on the current mapping of Scheduled areas, and the current distribution of dams, forests, and mining activity, in the Scheduled areas. Key findings: Extent of geographical area, and distribution of forests, dams, and mining activity in Scheduled Areas: The Report establishes for the first time that as much as 13% of India’s geographical area is in the Scheduled Areas. Further, the Report finds that both the concentration of forest cover, and the concentration of dams, is significantly higher in Scheduled area districts (a little over two and a half times) as compared to non-Scheduled area districts. Finally, we find that 90% of all mineral wealth generated in India comes from states that have Scheduled Areas. Fragmented constitutional protections for Scheduled Tribes: The Report concludes that despite the centrality of land to the identity, economy, and culture of the Scheduled Tribes, the constitutional protections for Scheduled Tribes and Scheduled Areas are fragmented and contradictory. The creation of these fragmented protections was in turn a product of two factors. First, even at the time of drafting of the Constitution, many tribal communities were no longer located within the geographically isolated scheduled areas, while many non-tribal communities were resident there, some for several generations. The Constitution makers created safeguards both for tribal people resident in Scheduled areas and those that were residing outside Scheduled Areas, but these fragmented protections failed to fully safeguard the rights of STs. Second, they arose from an inherent contradiction in creating geographically protected areas for Scheduled Tribes, while at the same time imposing no restrictions on the movement of tribals outside those areas, or on the movement of non tribals to those areas. This enabled more dominant non-tribal communities to settle in scheduled areas and in practice displace STs. Special constitutional and legal protections for ST land rights negated by contrary laws: The Report concludes that special constitutional and legal protections for land rights of STs have been diluted by a contrary legal framework comprised of forests, mining, and land acquisition laws. While state land alienation prohibition laws prohibit transfer of land from tribals to non tribals, there is no prohibition on the state acquiring land in Scheduled Areas for its own purposes in the exercise of its power of eminent domain or assertion of its rights over forestland. State led lawfully sanctioned development in the form of dams, mines, industrial development, and wildlife parks and sanctuaries, has historically been the biggest displacer of STs. This is corroborated by data on the intensity of dams and mining activity in the Scheduled Areas as outlined in the Report. Fundamental contradictions between ‘identity based isolation’ and ‘development through integration’ policy narratives of the British and Indian states: The Report finds a fundamental contradiction between two narratives that have characterised the policies of the British colonial state and the independent Indian state. The first narrative, that the Report calls the ‘identity based isolation’ narrative, identifies the tribals as a ‘distinctive group outside mainstream Hindu society’ both in terms of their ‘cultural traits’ and ‘geographical isolation’, and argues that they are keen to preserve their distinctiveness and their isolation. The second narrative called the ‘development through integration’ narrative identifies the tribal way of life as backward, compared to mainstream Indian population and seeks to improve their economic and social indicators to ‘integrate’ or ‘assimilate’ them with the mainstream population. The Report concludes that while both the ‘identity based isolation’ and ‘development through integration’ narratives, characterised the drafting of constitutional protections for STs, post-independence policy making was guided primarily by the latter. STs have however, rejected the ‘development through integration’ narrative as paternalistic and patronising, alleging that it fails to capture their aspirations to ‘develop according to their own genius.’ Meagre financial allocations for ST welfare: Translating policy and legal protections into reality needs financial resources. Even though the Constitution envisages a centralised framework for the administration of tribal areas under the aegis of the President and Governors of states, the responsibility of financing the costs of progressive change increasingly vests with the states. The Report computes significant shortfalls in Planning Commission recommended financial allocations made by both central and state governments in Scheduled area states under the tribal sub plan. Misguided expenditure of allocated funds compounds the problem of shortfall of funds for tribal development.
Topic:
Political Economy, Law, Economies, Constitution, Ethnicity, and Land Rights
Political Geography:
South Asia, India, and Asia

108. The Human Rights Movement in Morocco: The Dialectic of Influence

Author:
Mohamed Outahar
Publication Date:
07-2018
Content Type:
Working Paper
Institution:
Arab Reform Initiative (ARI)
Abstract:
The relationship between the human rights movement and the state in Morocco has gone through two major stages since the movement appeared in the 1970s. The first phase (1970s–1990s) was antagonistic in the broader ferocious political conflict that lasted from independence till the 1990s. Civil and political rights were routinely violated, and members of the opposition were incarcerated in secret detention centres. The state oppressed or ignored human rights activists or tried to contain them during that stage. This came to a gradual end in the early 1990s. The ruling regime changed the way it viewed the human rights movement and human rights themselves. Political detainees benefited from an amnesty and a process of reconciliation evolved as the state opened up the dark files of repressive practices such as arbitrary arrests, torture and enforced disappearances. The second phase, which began in the mid-1990s, came after the ruling regime had created and stabilized state institutions and the modalities of governance. It was then able to begin a calculated political opening bolstered by various internal and external forces. This, however, did not change the essentially contentious nature of the relationship between the human rights movement and the state. The conflict became subtle and more refined. The state attempted to turn the dark page of human rights’ violations within a process of transitional justice. Despite harsh criticism, this process heralded in some way the end of systematic torture, forced disappearance and detentions without fair trials. The scope and spread of human rights organizations and activists expanded in the following two decades, particularly after the movement of 20 February 2011, leading to the adoption of a new constitution that explicitly acknowledged the supremacy of international treaties and human rights laws and legislation. This paper reviews the history of the state’s relationship with the whole paradigm of human rights as it relates to society and politics and with human rights defenders in particular.
Topic:
Human Rights, Torture, United Nations, Constitution, and Repression
Political Geography:
Africa, North Africa, Morocco, and Rabat

109. Tunisia: Human Rights Organizations, Political Islam and its Groups

Author:
Mohamed Sahbi Khalfaoui
Publication Date:
09-2018
Content Type:
Research Paper
Institution:
Arab Reform Initiative (ARI)
Abstract:
How can we understand the relation of political Islam in Tunisia with the human rights system in its indivisibility and universality? Since the establishment of the Tunisian Islamic Movement in the early seventies, it has worked extensively to articulate public positions addressing issues of human rights and freedoms. This relationship sprang from a dual position which juxtaposed full hostility to personal freedoms such as sexual rights and a relatively positive interaction with public freedoms. Then came the deliberations and process of ratification of the 2014 Constitution which was special in its emphasis on equality between women and men, freedom of belief, and criminalization of accusation of blasphemy. The repression of Islamists in Tunisia in the 1980s and 1990s was the most important factor that defined their position, views, and engagement with human rights principles. After the fall of former Tunisian President Zine El Abedine Ben Ali in 2011, the return of the Islamist Ennahda (Renaissance) Movement to public activity was one of the most important features of the new political phase in the country. The Tunisian society was split between supporters and opponents of such a development. With the return of Ennahda and the emergence of other Islamist groups, especially the Salafis, the debate resumed over the position of Islamists towards human rights. While they attempted to include Islamic law (Sharia) as the main source of legislation in the constitution, Islamists continued to declare their belief in human rights principles. Some analysts were optimistic concerning a transformation in the Islamist ideology, while others insisted that Islamists were duplicitous, waiting until they are empowered enough to impose their project, which is inherently hostile to human rights. This paper is an attempt to review the Islamists’ positions on human rights and how they changed over time.
Topic:
Human Rights, Islam, Constitution, and Islamism
Political Geography:
Africa, North Africa, Tunisia, Mediterranean, and Tunis

110. Indispensable Remedy: The Broad Scope of the Constitution’s Impeachment Power

Author:
Gene Healy
Publication Date:
09-2018
Content Type:
Special Report
Institution:
The Cato Institute
Abstract:
Presidential impeachments are vanishingly rare in American constitutional history: in the 230 years since ratification, only three presidents have faced serious attempts to remove them from office. And yet, as President Donald J. Trump’s tumultuous tenure continues, it seems increasingly plausible that we’ll see a fourth.
Topic:
International Affairs, Democracy, and Constitution
Political Geography:
America