The Allahabad High Court (HC) took the first step on Thursday towards the resolution of the 60-year-old Babri Masjid-Ram Janmabhoomi ownership dispute — by including all the warring parties in the process.
The HC gave its stamp of judicial approval to the Hindu belief that Lord Ram was indeed born there. The court also ruled by a majority verdict that the disputed 120 feet by 90 feet plot land be divided into three equal parts among three petitioners — Sunni Wakf Board, Nirmohi Akhara and the party representing Ram Lalla.
This also means that the court’s three-way split of the plot to the petitioners — even after dismissing their cases — has kept the window open for further talks. [...]
The court said the area under the central dome of the three-domed structure, where Lord Ram’s idol existed [and is presently kept in a makeshift temple at the same place], belonged to Ram Lala Virajman (the Ram deity). [Ed. note: previous brackets were in original]
The case is likely to remain unsettled for years if there is an appeal (as expected) to the Supreme Court. In the meantime, there are already political reverberations in Bihar, one of India’s largest states and one where voting begins in state assembly elections later this month.
The Ayodhya issue–specifically the 1992 destruction by militant Hindu nationalists of a Mosque built in Moghul times on the site Hindus claim as holy–was one that helped propel India’s main opposition party, the BJP, to prominence. One of the BJP’s partners in the National Democratic Alliance (which governed India from the late 1990s until 2004) is the JD(U), a party in Bihar that needs Muslim votes.
The Constitutional Court of Colombia has blocked the planned referendum that would have opened the path to President Alvaro Uribe running for a third term.
This is a major benchmark (so to speak) in the maturity and institutionalization of Colombian democracy. I had long thought the third term ultimately would not happen, but my confidence in that expectation had been badly shaken as the process came this close to permitting the referendum.
The new president will be elected in May (or June, if a runoff is needed). Congress is elected in March, and there will be campaigns for various parties’ presidential candidacies, some of which will be decided in primaries concurrent with the legislative elections.
Much more at PoliBlog (Steven is leaving for some field research in Colombia rather soon; great timing, Steven!).
Shame on the California Supreme Court for, by a 6-1 vote, caving. This ruling was entirely expected, of course. It was probably even constitutionally correct, which only reinforces the need we have been discussing for an entirely new constitution.
While the argument that the reversal of a Court-granted right contained in Proposition 8 amounted to a a “revision” rather than an amendment to the constitution always seemed a stretch, its failure to convince the Court reveals the deeper problem: under what model of “good government” can a majority of voters (which might be a quarter or so of registered voters) trump the highest court of the jurisdiction when the issue at hand involves the rights of minority groups?*
There was a time when this state had a reasonably well deserved reputation as progressive. Now it has fallen behind various New England states and Iowa in the most important civil rights issue of the 21st century so far. Indeed, although the Court claims that those marriages performed in the brief era between the first Court ruling and Prop. 8 remain legal, in fact they have been placed in an illogical second-class, and hence potentially vulnerable, position.
* Whereas it takes a two-thirds vote of the legislature to pass a budget.
A recent “tug-of-war,” as the Hindustan Times puts it, over judicial appointments in India reveals the superiority of nomination/appointment processes that put the executive second, rather than as initiator, in the process.
For India’s Supreme Court–one of the most active constitutional review bodies among the world’s high courts1:
Appointments and promotions of judges are done by the President on the basis of recommendations made by a panel of Supreme Court judges which are forwarded by the government.
“President” here refers to the “mostly ceremonial” head of state2 and “government” refers, of course, to the federal executive cabinet, headed by the prime minister. Note that the first mover in nominations is a judicial “panel” (the details of which are not clear to me) and the executive only responds. This sort of process has long appealed to me as a preferable reform model for the US Supreme Court. And while I am not aware of a process of this sort ever having been seriously proposed for the US Supreme Court, it is not as “foreign” to American judicial practice as it may seem. In fact, several US states have moved to broadly similar reform models in recent decades.3
Recounting the “tug-of-war,” the HT says:
The trouble started when on October 18 the Supreme Court panel, responsible for judges’ appointments and promotions, recommended the three [state] chief justices for promotion to the Supreme Court.
Hindustan Times reported on October 27 that the panel had overlooked the three senior-most high court judges in the country – Justices A.P. Shah, A.K. Patnaik and V.K. Gupta – chief justices of Delhi, Madhya Pradesh and Uttarakhand high courts, respectively.
Last month, for the first time in 15 years since the present system for appointments and promotions was adopted, the Prime Minister’s Office (PMO) refused to endorse the recommendations and sent back the file to the apex court for reconsideration.
The PMO pointed out that the three judges were junior to several other judges eligible for promotion. It also drew the panel’s attention to the fact that state and gender representation had been overlooked.
Six states — Madhya Pradesh, Jammu and Kashmir, Jharkhand, Chhattisgarh, Uttarakhand and Sikkim — are not represented in the Supreme Court. Since June 2006, the court has also been without a lady judge.
However, in a snub, the SC panel sent the same names back.
Rules say the government has the option to return the recommendations once to the Supreme Court, but had to accept them the second time. [emphasis added]
And thus did an attempt by the federal executive to shape the highest court fail.
1. Arend Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries (New Haven: Yale University Press, 1999), specifically Table 12.2 on p. 226.
2. Chosen by an electoral college made up of federal and state legislators.
3. Florida is one such case. I distinctly recall the (presumably willful) mis-characterization of the Florida Supreme Court after its ruling demanding a recount in Bush v. Gore: It was widely pointed out that the court’s majority was appointed by Democratic Governors. Technically correct, but not in the sense most American readers or listeners would understand it, for the Florida court is not appointed in an executive-initiative process like the federal one. Rather, like the Indian process, a judicial panel forwards nominees to the Governor, who may reject a proposed justice, but not initiate his preferred alternative.
It so happens that right now in Florida, there is an apparent attempt by the Governor to influence the judicial nominating process that has echoes of the Indian case.
Some years ago I coauthored some work on the concept of ‘superintendence’ agencies, understood as non-elected institutions that provide “horizontal exchange.” The agencies provide checks on the executive and legislature that go well beyond the more typical constitutionality determinations by courts (rejecting laws or decrees, for example). Instead, superintendence agencies substitute for gaps in the “vertical” relationship between voters (the ultimate principal in a democracy) and their elected agents.
The basic idea behind the design of superintendence institutions seems to be an attempt to answer the question: but what happens when the voters themselves choose “bad” agents–those who violate election laws and other constitutional and legal provisions that are meant to ensure “good government.”
There has been quite a proliferation in recent decades of such agencies, including evermore powerful electoral commissions (whose authority extends well beyond mere administration of elections), independent prosecutors, human rights ombudsmen, counter-corruption commissions, and the like. Several superintendence institutions were created in recent constitutional overhauls in Colombia (where they are operative) and Venezuela (where they mostly are not), among other countries. However, perhaps nowhere has the concept of superintendence gone so far as in Thailand’s constitutional innovations of 1997.
This is all a long set-up for a question for the readers: Can anyone identify another case where an unelected institution–other than armed forces, of course–has dismissed a sitting chief executive?This just happened in Thailand:
The Constitution Court moved with unusual speed on Tuesday to dismiss Prime Minister Somchai Wongsawat and outlaw the ruling People Power party. [...]
PPP leaders vowed to form another government under the Puea Thai party label. But it will be without Mr Somchai, who was banned from politics for five years. [...]
Also banned by the court was the venerable Chart Thai party and the Matchimatipataya, both key members of the coalition government. [...]
It is expected that the three banned parties will reunite under the Puea Thai (For Thais) party, and form a government from surviving members of parliament. [...]
The court decision banned the parties and all their executives because of cheating in the Dec 23, 2007, election. But the decision has no immediate effect on other MPs or their ability to form a government.
I covered the election at the time: click the country name in the “Planted in” line to see them.
The California Supreme Court has granted a hearing on the challenges to Prop 8, which eliminated the right of same-sex couples to marry.
Four of the seven justices voted with the majority in the original ruling overturning the state’s previous voter-enacted ban on same-sex marriage. Of these four, one voted against yesterday’s 6-1 decision to grant a review of the challenges to Prop. 8. In other words, of the six to vote to grant a review, half were in the previous ruling’s minority. That breakdown of the votes for further review is probably not good news to proponents of equal marriage rights. We won’t know till well into next year, as the hearing is scheduled for March.
Some signs suggest the State Supreme Court will grant a review of Proposition 8, which took away the right the same court granted earlier this year for same-sex couples of marry.
The case petitioners are seeking to argue before the court is that the proposition amounts to a “revision” rather than an “amendment” to the state constitution, because it strips a fundamental right. I am no legal scholar, so I won’t pretend to assess the legal value of that argument. However, with the decision so recent, and 4-3, and with California justices subject to periodic retention elections (and potentially subject to a recall-election petition), I would not put good money on their being willing to insist on their earlier decision and overturn the measure.
And then there will also be the legal question–if Prop. 8 is not overturned–of whether the marriages performed between the time of the Court’s ruling in spring and the fall election would remain valid.
Yet another interesting angle is that the state’s Attorney General, Jerry Brown, is a proponent of inclusive marriage rights, but his job title would require him to defend the state’s newly enacted constitutional amendment stripping that right if it comes before the court.
The panel of the High Court reviewing a petition from The Movement for Quality Government in Israel to demand a State Commission of Inquiry on the summer, 2006, war in Lebanon, rejected the petition in a 4-3 vote. As Haaretz reports, the Justices nonetheless criticized the government for creating a much weaker panel to review the actions leading up to and during the war, which the petitioner sought to replace with a more independent State Commission:
The High Court’s abstention does not indicate its contentment with the way in which the government made the decision, nor does it give its seal of public approval for appointing the committee…
La calificaciÃ³n presidencial del aÃ±o 2000 fue una prueba facilÃsima para el TEPJF, fue como pasar el kÃnder. Ahora, en este 2006, la calificaciÃ³n presidencial serÃ¡ para el TEPJF como su doctorado.
Indeed. (Roughly translated: In 2000, validating the election was as easy as passing kindergarten. In 2006, it will be like defending one’s doctorate.)
So, what is this body that now has the resolution of Mexico’s electoral dispute in its hands? It is a judicial body of last resort, charged with resolving election disputes and nothing else. Its Higher Chamber (Sala Superior) consists of seven magistrates who serve ten-year terms, expiring this October. (There are also five regional Salas of three members each.)
The terms of TEPJF magistrates are non-renewable. The body was established by the 1996 electoral reform (a constitutional amendment), and its members are elected by two-thirds vote of the Senate, from a terna, or list of three names (per vacancy), presented by the Supreme Court. (The Supreme Court justices themselves, since another constitutional reform in 1994, are also elected by a two-thirds vote of the Senate from a terna sent by the President, and serve for fifteen-year, non-renewable terms.)
The first TEPJ Sala Superior (which thus is the current one) was actually required to be elected by three fouths of the Senate, and in fact, all votes on these magistrates were unanimous.
In other words, the upcoming case is no Bush v. Gore.
The TEPJF itself has an English-language page that explains its role and also offers profiles of the magistrates.
It is worth noting that the Tribunal is sometimes referred to as the “TRIFE,” after the name of the tribunal that was in place in the early 1990s. The older acronym, often written Trife, is still used, presumably because “Tepjf” is not pronounceable!
UPDATE: Thanks to Steven for noting (in a PoliBlog scion grafted below) that the Democratic majority of the House delegation from Texas after 2002 was actually a reversal of the electoral majority. Republicans had 53% of the statewide votes, yet only 47% of the Texas House seats. In that sense, indeed, the 2004 outcome, despite being almost 2:1 Republican, is a more accurate reflection of the votes (58-39, or about 1.5:1 R). So, the old plan was fundamentally flawed and should have been thrown out. Nonetheless, the real thrust of my argument in this post (and as amplified in my comment below in response to Steven) was not that one partisan gerrymander was worse than another. Procedurally, the two Texas districting plans were equally bad, even if the more recent one is actually less substantively flawed. Rather, my argument was, and is, that the more recent one in Texas has the potential effect of protecting a precarious right-wing House majority from adverse national vote swings, and that was clearly its intention. And a right-wing majority on the Supreme Court has said that is just fine. Partisan assignment of voters to districts, and partisan adjudication of the process. It’s a travesty of democracy.
I don’t want to let the attention given to the Bush administration’s apparent defeat in the Hamdan case completely drown out the far more important victories that opponents of democratization and electoral reform won in two earlier Supreme Court decisions in the past week.
The other two cases both affect the fariness of elections, and thus the essence of democracy itself. They are, in that sense, vastly more fundamental than the question of military tribunals–which the executive may find ways to continue anyway–important though the latter issue is.
The striking thing about the two election-related decisions is that in one case the Court overruled a state legislature and in the other it upheld one. Thus there is no common federalism or states-rights thread here. The Court said that the legislature in Vermont over-stepped its authority in limiting campaign contributions, and thereby accepted the principle that the wealthy have “freer” speech than the rest of us. In the Texas redistricting case, on the other hand, it said that it is perfectly all right for a state legislature to produce a partisan-biased districting plan–even mid-census–and thus further entrenched the principle that politicians should choose their voters rather than the other way around.
It is obvious that the Texas legislature’s act has far more impact on those of us outside of the state in question than does the Vermont act. The Republican party would not have gained seats in 2004, despite losing votes relative to 2002 (and falling below 50%), had it not been for the Delaymandered districts in Texas. Thus the actions of the Texas legislature not only affect the representation of all Texans (something which the archaic theory of democracy apparently still prevailing in this land might permit) but ultimately affect the representation of all of us (something no theory of democracy ought to admit).
The now-overturned Vermont law, on the other hand, would have limited impact on those of outside Vermont. Sure, if it were to spread nationwide–beyond the friendly confines of the home of Bernie Sanders and Howard Dean–it would have dramatic impact, to the immense benefit of ordinary voters. The Court nipped that in the bud.
The common thread of these two cases is support for the further entrenchment of right-wing political forces in this country. If there was any doubt that the US Supreme Court is continuing to assert its role as a bulwark against the advance of democratic representation, these cases should lay such doubt to rest. It did not matter whether the justices had to act to uphold or overturn a state decision; what mattered was acting to buttress the power of those who already have it.
Regarding the Hamdan case, I can’t help but wonder if Bush-Cheney will find a way to defy or override the very institution without which they would not have had their first term in order to continue prosecuting–as they alone see fit–the “war” on which they won their second.
Balkinization has an interesting take on how the government may respond:
So what the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way.
…by requiring the President to go to Congress for authorization, it gives Congress an opportunity and an excuse for oversight, something which it has heretofore been rather loathe to do on its own motion. [emphasis in original]
Would that the Court really would force democracy, but that’s a fantasy. Nonetheless, Balkin makes a very important observation about putting the whole issue back in the hands of Congress. Is the issue of oversight of the “war” on “terror” something that will make the Party of Power sufficiently squeamish in an election year that they will not act to effectively reverse the Hamdan decision? Or will the Democrats be the squeamish ones, with the Party of Power holding yet another issue with which to drive home the claim of their own indispensibility in keeping us “safe”? The Court, with Hamdan, may have handed down a third decision in one week that will assist the right electorally.
Note: The link to the Balkinization post is actually a link to the blog itself, because when I tried it, the post permalink was not working.
New Prime Minister Stephen Harper, leading Canada’s new Conservative minority government, is on the record believing judges have assumed too much power over public-policy decisions, and had pledged to institute a public hearing for court appointees.
So, this means Canada is instituting judicial-appointment procedures like those of its neighbor to the south, right? Hardly.
In other words, unlike in the United States, a ‘conservative’ chief executive is not asserting a right to appoint partisans to the highest court. This is a consensual nominee.
The hearing was before an ad hoc committee of the lower house, rather than a standing committee of the upper house, as in the USA.
Another aspect that is different from the USA is the nominee’s age, 65. When, like the current US executive, you are packing the court with your partisans, you want your appointees to be relatively young. A more common practice in parliamentary systems, on the other hand, is to appoint relatively more senior judges to the highest court. Being older, they have a clear track record, they will not serve long (in fact, Canada has a mandatory retirement age of 75), and there is less chance that the Court will fall far behind shifting popular sentiment, as reflected in the democratic process.
On that latter point, Rothstein said in his hearing:
The important thing is that judges, when applying the Charter, have to have recognition that the statute that they’re dealing with was passed by a democratically elected legislature … and therefore they have to approach the matter with some restraint.
Of course, Alito said similar things. But no one who has been paying attention should see Alito’s remarks as anything other than a ruse.
Past Canadian practice has been for appointments to be simply by cabinet decree, with no public scrutiny. Harper’s innovation–taking a senior judge who has been vetted by both major parties, and having him answer questions in the lower house of the legislature–is a remarkably sane way to appoint a Supreme Court justice.
Go to Keeth Poole’s Voteview and scroll down to the link for “recent politics.”
The short story is that the predicted vote is 56-44. And, yes, alas, that is in favor, but note that it would be a closer vote than many of the early reported whip counts implied (60+ in favor). And, as one of the contributors to the project said to me in private communication, the closer the vote is to party-line, the less interesting is the enterprise of predicting the ultimate vote based on early announcements and knowledge of senators’ spatial-voting record! For Roberts, the model predicted 69 votes. He got 78. Eleven senators were wrongly predicted, which is not bad. The prediction for Alito is likely to be even more accurate, I suspect.
They also have a prediction for Monday’s cloture vote: 67-33.
[NOTE: I have several posts on Alito, and all of them may be viewed on one page by going to my judiciary subdomain. ]
I wholeheartedly endorse the remarks by Scott Lemieux on Sunday (in part, reiterating an earlier post of his); emphasis is mine:
First of all, Bush nominated Alito as opposed to many other well-qualified candidates because he is an exceptionally reactionary judge, and the Senate can take this into account just as much as the President can. (more…)
If by my laws you walk, and my commands you keep, and observe them,
then I will give-forth your rains in their set-time,
so that the earth gives-forth its yield
and the trees of the field give-forth their fruit.
--Vayikra 26: 3-4