As you may have seen, the German Constitutional Court affirmed the dissolution of parliament last month, and as a result, the early-term general elections will go ahead on September 18.
I intend at some point to say something about the dispute itself in the case before the Constitutional Court, though that is hampered by lack of ability to read German. The short story is that the Chancellor, Gerhard Schroeder, sort of engineered his own defeat in a confidence vote in order to go to the elections (which his party surely will lose). Aside from the party just being desperate to get out of government for a bit before its popularity slides any further, an underlying political reason for the no-confidence vote was Schroeder’s lack of support for his government’s policies from within his own party.
But rather than go in detail into the interesting constitutional issues this case has raised, I wanted to just rant for a moment about one thing that bugs me, and that I see a lot in coverage of European news. Here is a line from today’s LA Times article:
The chancellor’s term was to expire next year, but he called for a new poll after Social Democrats lost control of a key state and it became apparent that liberals in his party would not back his economic and social reforms.
The emphasis is mine. Now, what is wrong with this? Well, the conflation of ‘liberal’ and ‘left.’ This is done all the time in the US, which is bad enough. But when reporting on a European country, where ‘liberal’ has a very distinct meaningâ€”that is, distinct from ‘left’â€”this conflation just fails to inform people about what the political controversy is.
For the record, in Germany the party known conventionally as ‘liberals’ is the Free Democratic Party, which will form part of the next government, if it and the center-right Christian Democrats can win a majority of seats. (It is not a sure thing, but that is another story.)
Those “economic and social reforms” that Schroeder is trying to pursue are liberal: opening markets, reducing government protection and streamlining labor policy. Those within the Social Democratic Partyâ€”Schroeder’s partyâ€”who are balking are not liberals. They are, well, social democrats. Sort of makes sense, right? Some of the more committed social democrats in the Social Democratic Party do not like the fact that their leader is pushing liberal reforms in their name. (Greens, in coalition with the Social Democrats, generally do not like the reforms, either; Greens are also not liberals, at least on the dimension of economic policy.)
Well, at least it makes sense if you do not assume (even implicitly) that all market-oriented reforms are ‘conservative’ and opposition to them is therefore ‘liberal,’ as this Times reporter (and no doubt, many an American newspaper reader) seems to assume.
Well, I have been searching every story I can find on the draft constitution since Monday, and no one has even adressed Article 153, in which the constitution is said to come in to force when passed in a “general referendum.”
So, maybe I am beating a dead horse here, and, frankly, I really hope I am wrong.
But I still believe that because it does not mention (apparently) the qualification, by which three provinces can block ratification if their elecorates vote no by 2/3, that the qualification is not binding.
Of course, techinically the ratification is supposed to be governed by the Transitional Administrative Law, which does have this qualification spelled out.
But Article 153 sure looks to me like a potential “escape clause” from the TAL’s qualification provision.
This is a little more complete than what was in the AP translation I was working with in my entries on this topic up to now.
After 1/3 of a province’s council members or 1/10 of its electorate have petitioned to be included in a region, the process is:
a) a general referendum is to be held by the residents of the designated provinces referred to in “First” of this article [i.e. those that would form a given region--Ed]. The referendum takes place when the provincial councils are in session, and requires a simple majority.
b) the referendum is not be repeated, unless 2/3 (two thirds) of each of the provincial council members, or 1/4 (a quarter) of the province’s residents, request that.”
I am unsure if this “general referendum” means a majority in the entire propose region, or concurrent referenda in each province. One would hope it is the latter, but it is not clear. Even if it is province-by-province, the minority within a province that might be opposed to accession to a region has a high hurdle to cross.
I can’t link to the above, because I got it off Lexis-Nexis, but here is the citation:
The Associated Press
August 24, 2005, Wednesday, BC cycle
SECTION: International News
HEADLINE: Key issues in dispute during deliberations over Iraq’s constitution
Steven Taylor today notes that the general fear of Sunnis regarding the form of ‘federalism’ in the constitutional draft is not unfounded or irrational. (I would reiterate that it would be irrational of them to oppose federalism in principle, but it is not irrational of them to oppose the bastardized so-called federalism of this draft.)
He suggests that the smarter thing for them to have done, rather than be obstructionist, would have been to work towards a federalism that:
would not have allowed the potential for large autonomous regions, but rather a collection of smaller ones.
Indeed, this is what I meant the other day by “balanced federalism.” However, I wonder if it would have mattered. First, there is the legitimacy problem that these co-opted Sunni negotiators have, on account of their not having an electoral mandateâ€”something the constitutional committe chair specifically referred to in public remarks (please see this post). It is kind of hard to correct that now, other than by letting the deadline lapse and holding new National Assembly elections, which the majority appears not disposed to do. Second, it just looks to me as if the Kurds and Shiites, who hold a large majority of the Assembly, decided to push through a very majoritarian constitution, even if they label it with the nice word ‘federal’ (though not a nice word to the Sunnis, which is ironic, given their regionalized status within Iraq).
Of course, fear that this is exactly what would happen is in no small part behind the Sunni boycott of January’s elections, and while that boycott might not have seemed the most rational strategy from a Western democratic perspective, I do not think it was irrational. The Shiites and Kurds would still have had a sufficient majority in the Assemblyâ€”even with full Sunni participationâ€”to have pushed through pretty much the same constitution they are pushing through now. It seems to me that the onus all along has been on the majority to restrain its majoritarianism, rather than on the minority to go along with it. And, once the decision was made to have a single national district for the Assembly election, rather than districted proportional representation, Sunnis could be sure of being underrepresented because such an electoral system meant turnout would be determinative of representation. That is, even had Sunni leaders agreed to run in the elections, turnout (and hence representation under the rules in use) was sure to be lower among their constituency simply because these were the regions where another form of fearâ€”that caused by armed guerrillas and often heavy-handed US counterinsurgency tacticsâ€”was most widespread, and also where the problem of recently war-displaced residents was greatest.
In other words, I believe Sunnis would not have been better off politically today had they participated in January.
Steven further elaborates:
Further, the bottom line is that if it is in the cards (and I am not convinced that it is) that the future of Iraq is dissolution, the fact that the constitution isnâ€™t federal in nature isnâ€™t going to stop such a schism.
About this I am not so sure. While I can think of secessionist movements within unitary statesâ€”the Tamil Tigers in Sri Lanka, for exampleâ€”I do not think there are many cases of actual secession that did not originate within federations. From the US Confedaracy in our Civil War to more recent cases like the USSR, Yugoslavia, and Czechoslovakia, it seems as though a pre-existing sovereign subnational government was a precondition for an entity to become fully sovereign by leaving the federation altogether. This is also true of a number of close calls that have not (so far) led to separation: Quebec in (federal) Canada, Biafra in (federal) Nigeria, Chechnya in (federal) Russia, and so on.
I am sure there is a literature in political science on this, and I am sorry to say that I am not aware of it.
Here I offer further reflections and a synthesis of some of the things I have said in recent days about the draft constitution (please go to the “Iraq” or “Constitutional Design” categories at the side), but this time I want to make a specific point:
Iraq’s draft is not meaningfully federal, except for the benefit of the existing national majority.
Which means, simply put, this is not a federal constitution.
The draft constitution submitted on Monday states that Iraq is ‘federal.’ But a federation is not defined by mere words in the preamble or definition of the state. As James Madison well understood, it is defined by the institutions that the constitution itself establishes, and the relationships among them.
I define federal in a way close to how most political scientists do:
A system of two overlapping levels, each with independently constituted governments:
National (i.e. the ‘federal’ government)
Subnational (i.e. an intermediate level between the municipalities and the national, commonly known as states, provinces, republics, or regions)
Each level has ‘sovereignty‘; i.e. the right to make final decisions in important policy areas.
The assignment of these rights across policy jurisdictions to the different levels of the federation is at least broadly defined in the constitution, and is typically subject to ongoing bargaining between the levels, and usually also by the case law developed by an independent judicial system.
The key here is that the national (or federal) level can make final decisionsâ€”unlike in a confederation, where it cannot. But so can the intermediate (state/provincial/regional) levelâ€”unlike in a unitary system, where it cannot. Both levels have independent authority and final-decision rights, and thus each must bargain with the other because neither can impose its will on the other.
Now, the Iraqi draft submitted on August 22, is federal in one sense (apart from the existence of the word in the preamble and in the definition of the state in Article Two):
It specifically defines a levelâ€”in this case, intermediate between the national and provincial governmentsâ€”of regions, each of which will have its own constitution (Article 118), legislative and executive branch (Articles 117 and 119), a right to raise its own revenues (128), and a right to provide for its own police forces (129; but it also says “region guards”â€”what does this mean?).
However, there is one article that appears to my reading (and an Arabic speaker tells me the translation appeared correct) to override all of that. Article 118, which states:
The National Council of the region drafts the region’s constitution and issues laws, which must not contradict this constitution and Iraq’s central laws.
If this article ended without those last four words that I put in Italics, I would say it was no problem. In no federation can a subnational constitution supercede the federal one. However, this specifically says no regional constitution can supercede (‘contradict’) a central law. This implies that a law, passed by the majority of the national parliament, takes precedence over a regional constitution.
Now, that would be less a problem if there was a way to ensure subnational participation in the formation of these central laws. The obvious way to do that is with an upper house that has co-equal legislative authority with the lower house (at least areas defined somehow as important to the regions) and that at least somewhat over-represents the less populated regions (it need not beâ€”and often in federations is notâ€”equal, regardless of population, as it is in the US Senate). It is the existence of such an upper house that provides the primary forum for the inter-level bargaining at the national level that I referred to above.
However, there is (apparently) no upper house for Iraq. So, these central laws, which regional constitutions may not contradict, will be passed by the national majority.
In other words, this is not federal at all. The national level is supreme.
Except in one respect, and this is a huge one: The regional governments will control the revenue from new (although not current) oil and gas wells. Or at least this apepars to be what Articles 109 and 110 say.
So, what do we have here? Regions with oil will have lots of revenue, but their laws and constitutions can be superceded by national law.
Whom does this protect?
Any group that can form, concurrently, its own region and the national majority.
In other words, the Shiite south.
It is less clear to me why the Kurds accepted this central-law supremacy provision. But we know they will have oil, especially if they can incorporate Kirkuk into their region. And they probably can incorporate Kirkuk, because the constitution says that one third of a provincial council or 10% of a province’s electorate is sufficient to petition for incorporation into a larger region, but is silent on how such incoporation is finalized. (A referendum in the whole proposed region, perhaps?) And if the provision in Article 129 for “regional guards” refers to milita forces like the Peshmerga, then they have something even better than a constitutional guarantee. (Institutionally, it is also possible that the Kurds expect to remain in the national government for a while, given possible schisms among Shiite parties.)
Thus, federalism, properly understood, gives regionally concentrated majorities the right to rule themselves, and not be subject to the laws of the national majority in the policy areas assigned to the subnational level.
Iraq’s draft constitution provides this protection of federalism only to the region consisting of the national majority. That is not federalism.
In other words, I started out thinking this was a reasonably good constitution. Upon further reflection, I believe the Sunnis are right to want it rejected. But, as I have said in previous posts, I do not think they can, because I think Article 153 has eliminated the veto rights of any three provinces wherein 2/3 vote “no.”
I have heard that some amendments have been agreed to. But it would be quite a late capitulation by Iraq’s majority if these anti-federal provisions have been changed in any meaningful way.
Today’s Orange County (California) Register has an editorial decrying a recent decision by the Federal Elections Commission that has significant implications for Porposition 77 on this fall’s California special election ballot.
Prop. 77 would take the process of re-drawing state legislative and US House districts in the state out of the hands of the California legislature and governor and put an indepdendent commission in charge of the process.
It seems the FEC has ruled that McCain-Feingold restrictions on individual contributions do not apply to members of Congress making contributions to a statewide initiative campaign. Two members of the California delegationâ€”conveniently, one from each major partyâ€”had asked whether federal law “applied to a statewide initiative that is not connected to them or their re-election.”
No connection? This may not be literally congressional campaign spending, but the iniative most certainly is connected to their own re-election.
Prop 77, which Governor Schwarzenegger supports, would end the racket by which politicians get to choose their voters. Perhaps quaintly, some of us citizens think it ought to be the other way around. Members of Congress are now free to spend as much as they want to keep the racket alive.
Thanks to Rick Hasen’s election law blog for the heads up.
The apple on the left is a ‘Cinnamon Spice’ and the one on the right is a ‘Strawberry Parfait.’ I just harvested both on a foggy morningâ€”today. And, yes, their names really do describe the flavors. Cinnamon Spice has a very mild cinnamon character, and is a great, cripy apple. Strawberry Parfait has a really intense berrylike flavorâ€”some might even find it too intense, although I like it and Merry loves it, and she is not even much of a fan of apples, ordinarily.
This is one of the great pleasures of home orchard experimentation: The vast range of flavors you can get out of fruit is a constant source of amazement, as well as taste pleasure.
Now, I can hardly wait for my first ripe apple off this tree, growing on my apple espalier fence:
It is called Freiburg, and is said to have a distinct anise flavor.
(In the background of that photo you can see a little bit of the Ladera Frutal grapefruit grove.)
Oh, and about that foggy morning. Turned out it was a prelude to a pretty hot dayâ€”86 degrees.
Paul Brewer was kind enough to welcome this blog to the ‘sphere. But he also made the following observation about Fruits and Votes:
So far, the votes seem to be winning over the fruits
Well, he is quite right. I had envisioned this blog (and actually still do) as a nexus between my fruit-growing interests here at Ladera Frutal, and my interests in constitutional design and elections. (They are not as unrelated as they might seem, but that is a topic for a future post, if you can take the suspense.) [UPDATE: The suspense is no more! See "The Mission of F&V" link beneath the blog's banner for an overview. Also the "I like hybrids" post that I linked below. More coming later, no doubt.]
Sure enough, events have focused my mind on the institutions (“votes”) side of things. No posts on fruits, unless one counts my post on lambic, which maybe one should.
So, here is the fruit post you have been waiting for.
Yesterday I harvested the season’s last pluot:
If you do not know what a pluot is, well, you are missing one of the real fruit sensations of our time. These are quite new hybrids by Floyd Zaiger, who is a modern-day Luther Burbank of fruit hybridization. And, yes, he does it the old fashioned way, as did Burbank; these are not gentically modified. This is painstaking controlled transfer of pollen from one variety’s flower to that of another, plant the seed, and see what you get. In fact, pluots are such complex hybrids that it takes generations of waiting for your seedlings to mature to fruiting age, and then repeating the cycle, in order to get the desired hybrid.
A pluot is roughly 3/4 plum and 1/4 apricot. There are now several crosses in the nursery trade, and some of them are having commercial success as well.
The fruit pictured above is a ‘Dapple Dandy.’ It was the last fruit on the tree, and you can see here the lengths I go to in order to protect fruit on the trees. Notice the netting around the fruit (keep birds and, less reliably, mice, away), and the silvery tape haning on the left side of the picture (scares birds, though it does best when it is windy so the thing twists and flashes).
And here is the beautiful 2.5-year-old tree from which that pluot came.
If you look closely at the base of the trunk, you will see yet another layer of defenseâ€”sheet metal. This makes it harder (nothing would ever make it impossible) for squirrels to climb the tree and steal the fruit. (Squirrels can easily rip right through that bird netting.)
This tree has four different varieties of pluot grafted on to it. Only two of them have fruited so far: The ‘Flavor King’ as well as the ‘Dapple Dandy.’
Both are incredibly richly flavored. These are fruits that, especially when tree-ripened, have the kind of complex layering of flavors that can be described by the kinds of phrases wine-tasters (or should I say, tasters of the finest ales, like lambics) use. In fact, the ‘Flavor King’ does almost taste like a wine!
Because the fruits are so complex and sweet, they can be harvested well before fully ripe and still be acceptable. In fact, eventually they may largely replace plums in the supermarkets for exactly that reason. But tree-ripened, they are in a league of their own.
Now, I wonder, when Paul wrote
…but the avocados have not yet begun to fight
did he know that Ladera Frutal includes a couple of acres of Hass avocados? Or was that just a lucky guess?
It has been getting incresingly clear since Monday’s announcement of a three-day period for final consideration of a draft constitution that the Shiiteâ€“Kurdish majority intends to just go ahead and push their draft through, regardless of Sunni objections.
Asked how to break the impasse, [Humam] Hammoudi [chairman of the drafting committee] said “the Iraqi people will rule” and suggested that the elected parliament could debate the issues and take a decision.
He then goes on to say, in a very interesting phrase:
Those who are representing the brother Sunni Arabs are not elected. Therefore, who can say that they really represent the people on the street … therefore the Sunnis have to express their opinion.
Of course, he has a point here. The Sunnis on the committee are co-opted members, and don’t represent anyone in the strict electoral sense.
However, how likely is that these members are acting outside of what is acceptable to most of their community leadersâ€”by which I mean those who would have headed an elected Sunni delegation to the assembly had Sunnis participated in large numbers?
Not very, I would imagine.
So, what Hamoudi is really saying is that the Iraqi MAJORITY (i.e. its Shiite and Kurdish communities) will approve the constitution over the objection of the Sunni minority.
Juan Cole has an interesting discussion that was posted earlier today.
I want to heartily endorse this comment of his, regarding what he sees as deficiencies in AP’s translation of the draft:
News organizations ought to hire bilingual lawyers as free-lancers for this sort of task– translating a constitution is a tricky thing and many technical terms can be deceiving, especially if you have technical terms drawn from both civil and religious law!
One specific provision that he cites is this one, drawing from the same AP translation I quoted from in a previous post:
1. Islam is a main source for legislation.
a. No law may contradict Islamic standards.
Now, here is how Cole translates these same passages from the original Arabic version, along with his comments (i.e. the bracketed text is Cole’s, not mine):
Para. 1: Islam is the official religion of state, and is a fundamental source for legislation. [Note: It is not THE source of legislation, though being A FUNDAMENTAL one may amount to much the same thing.]
a) No law may be legislated that contravenes the essential verities of Islamic law. [Note: The TAL and earlier drafts said that law may not contravene the verities of Islam. By specifying ISLAMIC LAW-- ahkam al-Islam-- this text enshrines the shariah or Islamic canon law quite explicitly in the constitution and would allow religious jurists to question secular legislation.]
Cole also shares my skepticism that the Sunnis can muster the 2/3 “no” vote in more than two provinces, though apparently does not share my conclusion, based on the phrase in AP’s translation regarding approval in a “general referendum,” that this provincial-veto provision may have been dispensed with.
Cole does, however, share my fear that the majority is declaring itself soverign and not bound by the transitional instruments. He even goes so far as to say, “The rule of law is no longer operating in Iraq,” and to say that the decision for this most recent three-day delay amounts to a “coup” by the transitional executive.
As of today, the San Diego Padres lead the National League West by four games over the Arizona Diamondbacks. But the Padres have a record that is below .500, at 61-63. They have not been above .500 for more than a day here and there for much of the second half of the season.
Baseball needs a rule under which if a division leader ends the season below .500, the division forfeits its right to a representative in the playoffs in favor of the runner-up in the wild-card race. No reason to reward mediocrity.
While the Padres are below .500, every team in the NL East is over .500; in fact, over .516 (64-60).
It has never happened in baseball that a playoff team has finished its regular season below .500. It might have happened in 1994, when the players’ strike ended the season with the Texas Rangers below .500, but there were still some 50 games to play that year, so we can’t say.
Moreover, 1994 was in the old “balanced” schedule, by which the division you played in had no bearing on the opposition you faced: you faced every team in your league the same number of times, regardless of division. Now the schedule is “unbalanced,” meaning teams play more games against each of their division rivals than they play against any each extra-divisional team.
That means the Padres are really quite mediocre, at best, as is the entire West division.
The Padres currently have the eighth best record in the league. Yet only three of those seven teams with better records would go to the playoffs if the season ended today:
St. Louis Cardinals–the Central division leader by 12 games, with a .632 record.
Atlanta Braves–the East division leader by 4.5 games, with a .568 record.
Houston Astros–the curtent Wild Card leader as the best second-place team in the league, clinging to a 1/2 game lead over Florida and Philadelphia.
I have heard a lot about what a great wild-card race the NL has this year. Oh, sure, there is a big fight among six teams–including every team in the NL East–to see who gets the Wild Card. Meanwhile, more than one of the ‘losers’ will have a better record than the Padres, even if San Diego manages to get its head above the surf before the season ends.
Let me say this clearly: If the Padres remain below .500, it will be a travesty. It will be even more a travesty if they beat the Braves, against whom they are 5-1 this season, in the first postseason round.
Some thoughts on the portions of the draft that are posted by the Guardian.
First of all, while the name is simply “The Republic of Iraq” (Article One), both the preamble of the draft constitution, and Article Two define Iraq as “federal.” This is contrary to the stated wishes of Sunni leaders, though, as I argued, not contrary to the objective interests that these leaders represent. Still, it looks like a recipe for intensified Sunni rejectionism, notwithstanding the rather weak nature of the federal provisions (more on that point shortly).
Article Two also states that “Islam is a source for legislation” (my emphasis).
I do not see anything in what the Guardian has posted about the powers of the president and the relationship of the cabinet and prime minister to the president. Nor do I see anything about whether the president is single or collective (like the interim presidency is). However, it appears that the presidency is relatively weak, because Article Two includes “parliamentary” in its definition of the state. The president is evidently elected directly, not appointed by parliament, though it is not clear. Assuming an elected presidency and a more-powerful prime minister responsible to parliament, this would be a ‘sem-presidential’ or ‘premier-presidential’ system.
Now, on federalism more specifically. The mechanism of creating federal units reads pretty much like what I advocated when I suggested that the constitution could “set up a process by which pairs (or more) of provinces could unify into larger entities.” Here is the text from the draft of Article 114:
A region consists of one or more provinces, and two or more regions [provinces?--Ed] have the right to create a single region.
I am not sure that last part (after the comma) was rendered correctly in the Guardian’s translation, but the other parts of Article 114 go on to speficy mechanisms by which provinces may initiate joining together into regions, and the process may be initiated either by 1/3 of the councils of the province in question, or by petition of 1/10 of the voters. (The rest of the process is not spelled out in these excerpts.)
This is good, and is similar to the process that Spain placed into its constitution after Franco, and by which Autonomous Communities have been created, some of which (e.g. the Basque lands) have combined several existing provinces, while others comprise a single province.
There is, however, no limit on the extent of the national population that any one Region can encompass, as I also suggested in my just-referenced entry.
It is also not clear to me whether parliament is bicameral or unicameral. I get the impression there is no upper house, but it is not clear. If there is not, then that undercuts the federal dimension, although in principle a federation could have a unicameral parliament (none do, unless one counts tiny Micronesia or Chavista Venezuela), as long as there are other mechanisms to prevent the center from taking over the soverignty of the regions. (It is worth noting that many federations have upper houses, but very weak ones–notably Belgium and Spain. The US model of co-equal houses and equal representation of the subnational entities is far from typical of federations.)
Regions will have their own constitutions, but these “must not contradict this constitution and Iraq’s central laws,” which implies that there is not, in the end, much subnational sovereignty after all. (And if that is the case, how is it ‘federal’?)
On the contentious issue of resources, Article 109 states:
Oil and gas are the property of all the Iraqi people in regions and provinces.
OK, well that is clear, isn’t it? Article 110 elaborates a bit, though still rather vaguely:
The central government administers oil and gas extracted from current wells, along with governments of the producing regions and provinces, on the condition that revenues are distributed in a way that suits population distribution around the country.
All of what I have seen on federalism leads me to the conclusion that this constitution is ony weakly federal. In some ways that is for the good, such as the provisions that appear to require oil revenues to be distirbuted based on population, not on where the oil was extracted. In some ways it is not so good, such as the apparent subordination of regional constitutions to central law (which I take to mean more than just the central constitution itself).
On political parties, Article Two continues the ban on the Baathist Party “and its symbols under any name.”
Finally, on ratification, the real kicker is in Article 153:
This law is considered in force after people vote on it in a general referendum
With the caveat that I have not read a complete draft (and the draft has not been formally accepted yet by the assembly) I would take this to mean that the provision for veto by 2/3 votes in three or more provinces has been eliminated, as I sort of predicted yesterday, in the last paragraph of my entry on Why the Sunnis might not be able to veto the constitution.
Bottom line: From what I can see, this is a quite majoritarian constitution that will empower the central government, but with some limited autonomy for regions that sets of provinces will be free to create.
Now the really hard part begins: Making it work in the context of what is probably already a civil war, and with the probable Sunni opposition to the constitution.
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