Tag Archives: constitutional law

Canada

Canada’s dysfunctional Senate becomes top campaign issue

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You might think it’s hard to imagine any legislative chamber more dysfunctional than the US Senate, with its arcane rules, political polarization and virtual requirement that all legislation survive by a filibuster-proof majority.Canada Flag Icon

But Canada’s upper-chamber Senate actually surpasses its American counterpart for ineffectiveness — and as Canadians begin to focus on the October general election, a scandal involving expenses that implicates prime minister Stephen Harper’s chief of staff and Harper’s belated push for Senate reform could play a pivotal role in the campaign.

Unlike U.S. senators, Canadian senators aren’t (typically) elected. Instead, they are appointed by the governor-general, the mostly ceremonial representative of Canada’s even more ceremonial head of state, Queen Elizabeth II. In practice, though, Senate appointments are made upon the prime minister’s recommendation, and he (or she) typically advances candidates on a political basis. Often, prime ministers appoint former MPs and party grandees who have actually lost elections, further emphasizing the undemocratic nature of the Senate.

The Senate’s 105 seats are allotted by province — but not in any way proportional to Canada’s population in the 21st century — Ontario and Québec have 24 each, Nova Scotia and New Brunswick 10 each and British Columbia, Alberta, Manitoba, Saskatchewan and Newfoundland each have six. Prince Edward Island, with a population of around 150,000, has four senators — that’s two-thirds the allotment for British Columbia, which is home to over 4.6 million Canadians. Senators essentially serve for life, though a 1965 reform instituted a mandatory retirement age of 75.

Senate approval is required to enact Canadian legislation. In practice, however, the upper chamber proves a far less contentious chamber than the U.S. Senate, functioning more like the British House of Lords. Bills almost exclusively originate in the lower chamber, the House of Commons. It’s usually a big deal when the Senate blocks legislation — its opposition to the 1988 free trade bill sparked a snap election over NAFTA, and in 2010, it rejected a bill (supported by every party except the Tories) that committed Canada to sharp reductions in carbon emissions by 2020. Generally, though, its activity is limited. Given that its members aren’t elected representatives, that’s probably a reasonable outcome.

Though Harper originally came to power in 2006 on promises to find a constitutional fix, he too eventually appointed his own senators — 59 of them — between 2009 and March 2013, three of which were elected in Alberta under an experimental scheme to elect their own senators.  Continue reading Canada’s dysfunctional Senate becomes top campaign issue →

Venezuela

Show us the long-form, Nicolás! (In which ‘birtherism’ comes to Venezuela.)

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So birtherism isn’t limited to the United States and the tea party movement’s nutty claim that US president Barack Obama was actually born in Kenya and not in the US state of Hawaii. Venezuela Flag Icon

As it turns out, Venezuelan president Nicolás Maduro is taking some heat over accusations that he was actually born in Colombia, not in Caracas, the capital of the country that he leads.

Maduro’s government is sinking under the weight of power outages, a return to expropriation (including a local toilet paper factory) and continued shortages of basic goods due to inefficient foreign currency exchange and a gap between the real and official value of the Venezuelan bolívar, which has led to ridiculous means to game the Venezuelan currency — one story earlier this week demonstrated how flights out of Venezuela are nearly 100% booked for months in advance as a way to arbitrage the difference in the official and actual rates.

Maduro, whose country is essentially locked out of conventional global debt markets, went to Beijing earlier this week (pictured above) to procure another $5 billion in financing (and $14 billion in development of Venezuela’s oil-rich Orinoco belt) from the Chinese government.  He picked another odd fight with the United States and came up with a truly nutty excuse for skipping the UN General Assembly meeting this week, which follows the possible implication of Venezuela’s government in the brazen attempt to transport 1.3 tones of cocaine from Caracas to Paris on an Air France flight earlier this month.

Rumors have swirled over the past months about Maduro’s birthplace and his nationality, but his chief rival in the April presidential election, Henrique Capriles, the governor of Miranda state, is ratcheting up the pressure.  Capriles and Walter Márquez, an opposition member of Venezuela’s Asamblea Nacional (National Assembly), took up the claim yesterday that Maduro was born in Bogotá:

Márquez claimed that he has documents and testimonies attesting to Maduro’s dual nationality.  “Nicolás Maduro lived in the Carora neighborhood, in Cúcuta (Colombia). There are testimonies of people who spent time with him. We found the record of the birth certificate of Nicolás Maduro’s mother. She was born in Cúcuta. I contacted people who can testify that Maduro was born in Bogotá,” Márquez stressed.

Márquez added that so far the supporting documents attesting that Maduro’s father is a Venezuelan have not been found. “We have a copy of the marriage certificate of his (Maduro’s) parents, and the birth certificate of his older sister. Later on, I will disclose documental and testimonial evidence proving Maduro’s Colombian nationality,” he stressed.

Maduro’s doing a pretty good job of discrediting himself these days, so further discrediting Maduro (instead of chavismo more generally) won’t by itself do much good for the opposition — and it could backfire against them.  By pursuing a ‘birther’ strategy, the opposition is giving the Venezuelan military or rivals within the chavista elite, such as National Assembly president Diosdado Cabello, an opportunity to remove Maduro and start anew once Venezuela’s basketcase economy truly hits rock bottom.

Even if Márquez and Capriles somehow had smoking-gun proof that Maduro was somehow ineligible for the Venezuelan presidency, it’s also pretty clear that Maduro could claim that he renounced his Colombian citizenship or he could do so and still remain eligible for the presidency.  But even if he didn’t, does anyone think that a chavista-dominated court system would even entertain removing Maduro from office?  It’s hard to see just why the opposition is pursuing this strategy, because it telescopes to the Venezuelan electorate that Capriles and the opposition are less interested in making their lives better than scoring political points — or even plotting a strategy that could win power.

But under the constitutional process for nationality in Colombia and Venezuela, it’s easy to see how Maduro might wriggle out of any ‘birther’ scandal, even without leaning on Venezuela’s corroded state institutions.

Article 41 of Venezuela’s ‘Bolivarian’ constitution — promulgated by late president Hugo Chávez in 1999 — states that only Venezuelans by birth who have no other nationality shall be permitted to hold the offices of President: Continue reading Show us the long-form, Nicolás! (In which ‘birtherism’ comes to Venezuela.) →

Germany

As U.S. awaits DOMA decision, Germany’s constitutional court weighs in on gay rights

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By the end of June, the U.S. Supreme Court will render decisions in two of the most important legal cases to affect same-sex marriage in the United States: Hollingsworth v. Perry, which could result in the repeal of California’s Proposition 8, a ballot measure that overturned the state legislature’s enactment of same-sex marriage, and United States v. Windsor, which could strike down the U.S. Defense of Marriage Act.  DOMA, a 1996 law that prohibits same-sex couples from federal benefits of marriage, has been struck down by lower U.S. courts as a violation of the ‘equal protection’ clause of the 14th amendment of the U.S. constitution.  Others have argued that it violates the right of states to determine their own marriage laws and the ‘full faith and credit’ clause of the U.S. constitution that requires states to recognize the law, rights and judgments of the other U.S. states. Germany Flag Icon

Both decisions are among the most highly anticipated opinions of the Court’s summer rulings.

But Germany’s top constitutional court, the Bundesverfassungsgericht, got out in front of the U.S. Supreme Court last week with a landmark decision of its own that in many ways mirrors what proponents of same-sex marriage hope will be a harbinger of the U.S. decision on DOMA.

In a decision that could place pressure on chancellor Angela Merkel in advance of Germany’s federal election in September, the constitutional court ruled that same-sex couples in registered civil partnerships are entitled to the same joint tax filing benefits as those in opposite-sex marriages, exactly the rights that DOMA was originally enacted to prohibit in the United States.  The decision put the fight for German same-sex marriage on the front page of European newspapers in a summer when the parliamentary battles to enact same-sex marriage in the United Kingdom and France have otherwise dominated headlines.

It’s surprisingly in many ways that France and the United Kingdom have been more progressive on same-sex marriage rather than Germany.  Although polls show nearly two-thirds of the British and the French support same-sex marriage, a February 2013 poll showed that three-fourths of Germans support same sex-marriage.  Moreover, UK prime minister David Cameron is the center-right leader of a Conservative Party that faces its most pressing political pressure today from the right, not from the center, and the virulent anti-marriage rallies in France and the widespread opposition to same-sex marriage on France’s center-right means that French president François Hollande’s push for marriage equality, a policy that he campaigned on in 2012, has met significant turbulence.

But Germany’s evolutionary approach to marriage equality has taken a more subdued path through the constitutional court in Karlsruhe as much as through the Bundestag, Germany’s parliament.  Former chancellor Gerhard Schröder and his coalition partner Volker Beck successfully pushed for the enactment of the Life Partnership Act in 2001 when the Sozialdemokratische Partei Deutschlands (SPD, Social Democratic Party) controlled the government in coalition with Beck’s Bündnis 90/Die Grünen (the Greens).  Following the German constitutional court’s blessing of the law in 2002, the Bundestag followed up in 2004 with revisions to the law that increase the rights of registered life partners, including rights to adoption, alimony and divorce, though not parity with respect to federal tax benefits.

Since taking power in 2005, chancellor Angela Merkel has not pushed additional rights for same-sex couples, which puts her at awkward odds with her coalition partners, the Freie Demokratische Partei (FDP, Free Democratic Party), which supports marriage equality and whose former leader Guido Westerwelle (pictured above with Merkel), Germany’s foreign minister and its vice-chancellor from October 2009 to May 2011, is openly gay.

Both Merkel’s Christlich Demokratische Union Deutschlands (CDU, Christian Democratic Party) and the CDU’s sister party in Bavaria, the more socially conservative and Catholic-based Christlich-Soziale Union in Bayern (CSU, the Christian Social Union in Bavaria), have been traditionally opposed to gay marriage, and as recently as March, the CDU and the CSU reaffirmed their opposition to extending tax benefits to same-sex partners, even though the February 2013 poll showed that two-thirds of CDU-CSU supporters favored same-sex marriage outright.

Despite parliamentary inactivity in Berlin, last week’s decision by Germany’s constitution court, however, is just the latest decision from Karlsruhe that has edged same-sex registered partnerships ever closer to full marriage equality.  Continue reading As U.S. awaits DOMA decision, Germany’s constitutional court weighs in on gay rights →

Pakistan, Somalia, United States, Yemen

U.S. justice department memo justifies targeted killings of U.S. citizens abroad

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In 2002 and 2003, assistant U.S. attorney general John Yoo, at the U.S. department of justice, authored now-infamous ‘torture memos’ providing legal justification for ‘enhanced interrogation’ techniques, which the administration of U.S. president George W. Bush would proceed to employ against ‘unlawful combatants,’ and in violation of the Geneva Conventions, according to many legal scholars (outside the Bush administration, at least).USflagPakistan Flag Iconsomaliayemen flag

Although we don’t know who wrote it or when it was written, there’s some parallelism in the ‘white paper’ from the justice department of U.S. president Barack Obama, made public today by NBC News, offering up the legal justification for the targeted killing of U.S. citizens who are senior operational leaders of al Qaeda or an associated force of al Qaeda.

Kudos to NBC News for obtaining the memo, which requires that any such U.S. citizen must be an ‘imminent’ threat, capture of the U.S. citizen must be ‘infeasible,’ and the strike must be conducted according to ‘law of war principles.’  Each of those is defined in a manner that’s not exactly narrow — for example, as Michael Isikoff at NBC notes:

“The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo states.

Instead, it says, an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”

The United States, first under the Bush administration, but at a vastly accelerated pace under the Obama administration, has used unmanned drones to attack targets in Yemen, Somalia and Pakistan (to say nothing of what we don’t know about their use in more conventional military theaters, such as Iraq, Afghanistan and Libya over the past decade) — it seems reasonable to believe that drones could soon be used in Afghanistan after U.S. troops leave that country next year, and U.S. capability for drone use in Mali or elsewhere in north Africa would likewise not be a difficult task.

The leaked memo comes day before Congressional hearings on John Brennan’s appointment as Obama’s new director of the Central Intelligence Agency.

There’s not much I can add to what others have already said about the Obama administration memo, though it may well come to define this administration’s unique ‘addition’ to the expanding nature of executive power in the United States, to the detriment of U.S. constitutional civil liberties and even international law.

In September 2011, the United States attacked two U.S. citizens, Anwar Awlaki and Samir Khan, in a drone attack in Yemen and, more perhaps troubling, killed Awlaki’s 16-year old son, Abdulrahman, also a U.S. citizen, in a subsequent attack.

Glenn Greenwald, writing for The Guardian in a long and thoughtful takedown of the leaked memo, takes special offense with the lack of due process for accused targets:

The core distortion of the War on Terror under both Bush and Obama is the Orwellian practice of equating government accusations of terrorism with proof of guilt. One constantly hears US government defenders referring to “terrorists” when what they actually mean is: those accused by the government of terrorism. This entire memo is grounded in this deceit….

This ensures that huge numbers of citizens – those who spend little time thinking about such things and/or authoritarians who assume all government claims are true – will instinctively justify what is being done here on the ground that we must kill the Terrorists or joining al-Qaida means you should be killed. That’s the “reasoning” process that has driven the War on Terror since it commenced: if the US government simply asserts without evidence or trial that someone is a terrorist, then they are assumed to be, and they can then be punished as such – with indefinite imprisonment or death.

In contrast, Jameel Jaffer, the deputy legal director of the American Civil Liberties Union has written a quick reaction that’s subdued in contrast to Greenwald’s response:

My colleagues will have more to say about the white paper soon, but my initial reaction is that the paper only underscores the irresponsible extravagance of the government’s central claim. Even if the Obama administration is convinced of its own fundamental trustworthiness, the power this white paper sets out will be available to every future president—and every “informed high-level official” (!)—in every future conflict. As I said to Isikoff, that’s truly a chilling thought.

Although the memo itself could well stand as an important turning point in the Obama administration’s controversial justification for executing U.S. citizens without due process, what seems even clearer is that as Obama’s second term unfolds, we can expect the continuation and proliferation of the use of drone attacks.  Given the zeal with which U.S. policymakers are apparently pursuing U.S. citizens in Yemen, Pakistan and Somalia, it seems certain that the Obama administration is even more audacious in its approach to the protection of non-U.S. citizens.

Will Wilkinson at The Economist has recently argued that the Obama administration’s drone program as a whole fails the Kantian principle of ‘universal law’ — i.e., that the United States might not enjoy being on the receiving end of its own logic:

The question Americans need to put to ourselves is whether we would mind if China or Russia or Iran or Pakistan were to be guided by the Obama administration’s sketchy rulebook in their drone campaigns. Bomb-dropping remote-controlled planes will soon be commonplace. What if, by another country’s reasonable lights, America’s drone attacks count as terrorism? What if, according to the general principles implicitly governing the Obama administration’s own drone campaign, 1600 Pennsylvania Avenue turns out to be a legitimate target for another country’s drones? Were we to will Mr Obama’s rules of engagement as universal law, a la Kant, would we find ourselves in harm’s way? I suspect we would.

As such, stunning as today’s news is, it’s worth pausing to consider the effects on each of the three countries where the Obama administration is known to be operating drones — as critics note, the drone attacks could ultimately backfire on long-term U.S. interests by antagonizing Muslims outside the United States and potentially radicalizing non-U.S. citizens into supporting more radical forms of terrorism against the United States in the future.

Continue reading U.S. justice department memo justifies targeted killings of U.S. citizens abroad →