Cornell International Law Journal https://cornellilj.org The preeminent source for scholarship on foreign and international law Fri, 01 Mar 2024 17:19:45 +0000 en-US hourly 1 https://wordpress.org/?v=6.4.3 The Problems of Legitimacy of the South African Magistrate Court System as a Quasi-Judicial Entity: a Historical, Statutory, and Case-Based Analysis, Vol. 56.3 https://cornellilj.org/2024/03/01/the-problems-of-legitimacy-of-the-south-african-magistrate-court-system-as-a-quasi-judicial-entity-a-historical-statutory-and-case-based-analysis-vol-56-3/ Fri, 01 Mar 2024 17:17:58 +0000 https://cornellilj.org/?p=3988 INTRODUCTION:

This article aims to complete an in-depth analysis of an often-overlooked part of the South African judicial system, the Magistrate Court system. The article will highlight the historical evolution of the Magistrates’ Courts, and the negative public perception of the Magistrates’ Courts, especially worsened by the Magistrates’ Courts’ role in perpetuating the harms of apartheid. In the post-apartheid period, the statutory construction of the Magistrates’ Courts has resulted in a restricted set of judicial obligations and powers, which renders the Magistrates’ Courts quasi-judicial in nature. Furthermore, case-analysis of maintenance cases will show that since apartheid, the South African judiciary has attempted to reinforce the legitimacy of the Magistrates’ Courts, with limited success. This historical, statutory, and case-based analysis aims to emphasize the importance of the Magistrates’ Courts and to highlight how there needs to be a reconceptualization of the quasi-judicial role of magistrates within contemporary South Africa.

  1. WHY DOES THE MAGISTRATE’S COURT MATTER?

The judiciary of South Africa often engages in complex and influential cases. The Constitutional Court of South Africa, in particular, has set precedents for the entire continent and many international human rights tribunals.

Comparatively, the Magistrates’ Courts, are self-defined on the Ministry of Justice website as “lower courts which deal with the less serious criminal and civil cases.” This is especially considered true for civil Magistrate’s Court cases, which involve the day-to-day legal complaints of citizens, from divorce and maintenance (spousal and child support), to local property disputes.

However, reflecting on the Magistrate Court system is essential to be able to understand the effectiveness of the South African judiciary system as a whole. The Magistrates’ Courts deal with 95% of the cases that come into the court system. Magistrates are also the first line of legal officers who engage with the most vulnerable members of the population. For example, maintenance claims usually involve single mothers or fathers and minor children, advocating for enough money from their spouse or partner to survive day-to-day. Many of these maintenance claims are advocated by the individual, without any lawyers advising them on their claims. Magistrates’ Courts are essential to the everyday functioning of the South African legal system.

However, magistrates remain under executive branch oversight and lack judicial independence. This has led to clear generational perceptions, noted throughout this article, that magistrates are civil servants, not judges, and cannot be seen to be granted legitimacy as members of the judicial branch. Although that characterization might have been accurate in the colonial period, Magistrates’ Courts no longer engage simply as civil servants, but as judicial officers. The simplest proof of this is that individuals going in front of the magistrates surely view them as judges. Therefore, Magistrates’ Courts, as the frontline of legal practice in South Africa, must be seen as both independent and legitimate judicial actors.

II. HISTORICAL BACKGROUND OF THE MAGISTRATE COURT SYSTEM

  1. Origins of the Magistracy in England

The Magistrate Court system emerged in England during the medieval period. As early as 1200, King John began appointing knights in each county to serve as peacekeepers when interval courts were not in session. The knights exclusively served an executive function. Around 1327, King Edward III expanded their roles to be partly judicial. He authorized newly renamed justices of the peace to arrest suspects and commit them to jail, and to bear administrative responsibilities such as providing for the poor and orphaned, and maintaining roads and bridges. He additionally formed commissions of the peace—panels composed of knights and men of higher gentry and reputation who were considered learned in the law. The commissions checked the powers of the justices.

Justices of the peace ruled the counties and were often members of England’s elite. Over time, clergymen, and then during the industrial period, middle-class capitalists, filled the bench as the elite no longer sought the justice role. Some counties, however, often the rural ones, found it necessary to appoint men of lower gentry to the bench to ensure their courts could remain open.

Although they were sometimes politically criticized, justices of the peace operated efficient and economical governments. The justices created a court of petty sessions to exercise their more important judicial powers and special sessions to carry out administrative and pretrial police work, although sessions varied greatly between counties, and courts became badly serviced over time. Resiliently, by 1851, petty sessions and special sessions were regularized.

  1. Magistrate system in England today

The contemporary English Magistrate Court system has the status of the lowest level courts in both civil and criminal cases, and, as a result, hears a substantial number of cases. They are composed of unpaid laymen or paid professional magistrates, with the courts geographically distributed. Magistrates are appointed by the Lord Chancellor and can include practicing attorneys. They serve one day every two weeks and are considered to be volunteer public servants, even though they hold huge amounts of judicial authority. Magistrates primarily judge adult criminal matters. However, they also encompass areas such as juvenile criminal matters, and licensing of businesses, as well as family law disputes. Due to the geographic limitations, magistrates are not required to recuse themselves if they know of the parties unless they have a specific bias. Appeals to a higher court are rare, due to the limited severity of the crimes, resulting in extremely restricted sentencing guidelines.

  1. South African Magistrates’ Courts as a hybrid legal system

Magistrate courts in South Africa originated in the 17th century, set up by migrant farmers of Dutch descent who emigrated along the Orange River, to cover defined geographic districts. Due to the rural nature of the farming communities, the magistrates were a physical reminder of the government. Localized Dutch Boer landdrosten courts (landdrost being the title of magistrate), assisted by heemraden courts (courts of local laymen appointed to assist the landdrost, usually the most prominent men of the community) were granted both judicial and administrative capabilities. Magistrates’ roles were extremely broad during this period, managing everything from legal sentencing, notarial witnessing and even managing the finances of their district. Their role was not only legal, it involved keeping the community functioning, including managing public works, allowing permits for all economic activity, and even the sale of liquor licenses.

Modern-day South Africa has a split bar system that merged Dutch-Roman law with British law as the British colonized South Africa, with English law taking priority. For example, civil procedure followed British law, but the Roman-Dutch practice of civil procedure to prevent the flight of arrested individuals was added to the codes of South African civil procedure. Contemporary South African law has merged both forms of law to create a hybrid system.

III. THE MAGISTRATES’ COURTS’ LACK OF LEGITIMACY AND SELF-HATING PERCEPTION

  1. British colonial period

The legal profession in South Africa was generally dissatisfied with itself during the British colonial period. Firstly, wide disparities in education and social status between different members of the Bar were prevalent. Secondly, the new British Supreme Court desired to police the profession and establish itself as being ethically superior. Lastly, there was steep competition for clients among attorneys, yet a negative perception of retainer agreements made developing client relationships extremely difficult.

Magistrates were also subject to criticism, as judges resented being associated with the magistrates due to the magistrates’ lack of professional training. Many judges took issue when the magistrates’ jurisdiction was expanded in 1917 because they considered the magistrates unfit to carry out their duties.

The magistrates did not think highly of their own work themselves. In the criminal division, they found presiding over court monotonous and punishing. As one magistrate put it, “day after day” it was the magistrates’ duty to meet with “the lowest type of humanity.” Given that cynical view, it was no wonder that prosecutors preferred to bring their charges before Magistrates’ Courts. Magistrates were notorious for dealing out harsh sentences, particularly to Black Africans.

In 1914, a group of attorneys in Johannesburg turned their frustrations with the magistracy into a complaint to the Chief Magistrate. In the complaint, they alleged that 1) there was no separation between magistrates and prosecutors in power, 2) some magistrates were indebted to lawyers who argued before their benches, creating conflicts, and 3) there was an absence of proper recordkeeping in court proceedings. In response, the Chief Magistrate blamed the lack of civil service training for magistrates.A lack of proper training was a widely recognized problem highlighted by others outside the magistracy, including the country’s Chief Justice. In continuation, however, the Chief Magistrate concluded that “inferior courts are not expected to turn out the same class of justice as Superior Courts . . . Inferior Courts are, necessarily, a compromise between justice and economy.” This position seemingly acknowledged the existence of misconduct amongst the magistrates and approved of it on the basis that quality was not a characteristic expected of the lower courts. It appeared that the magistracy had internalized the profession’s disparaging attitude.

  1. The magistracy’s self-hating perception in contemporary South Africa

One of the primary factors undermining the legitimacy of the Magistrate Court system is the perception that they lack judicial independence, because magistrates, since 1944, have been selected by the executive branch, the Minister of Justice. Today, that reputation has resulted in a conception that magistrates lack competence compared to the judges. Due to the magistrates’ connection to the executive branch, the magistracy is often viewed as being subject to the whims of the political process. This perception was best highlighted in the 2002 Van Rooyen v. The State case from South Africa’s Constitutional Court. Van Rooyen and his co-plaintiffs argued that the lack of sufficient judicial independence by the Magistrate’s Court meant that any judgments made against them during the course of criminal proceedings were invalid. The Constitutional Court stated that independence could be understood by whether a reasoned outside observer found the magistrate to be acting independently, without outside pressure. The Constitutional Court found that the appointment process of magistrates did not restrict their judicial independence.[1]

IV. THE MAGISTRACY AND THE SPECTER OF APARTHEID WORSENS ITS LEGITIMACY

  1. The role of the magistracy during the apartheid period

Magistrates during the apartheid period were not conceptualized as independent judicial officers, they were considered civil servants within the executive branch, as codified in Section 9 of the Magistrates’ Courts Act 32 of 1917 and the Public Service Act 54 of 1957.

During apartheid, the Magistrates’ Courts were central to the enforcement of the apartheid system. Their positioning as public servants meant they managed many administrative aspects of the political process, like the census and local elections, all while also overseeing trials for political prisoners. Magistrates were often hired from the ranks of the state prosecutors during apartheid. The assumption of a magistracy post required the passing of the Public Service Law exam and encompassed both judicial and administrative work. Magistrates engaged in the recording of confessions and oversaw inquests into custodial deaths. These responsibilities often clashed with the question of the independence of the magistrates. Magistrates detailed that the apartheid regime continually politically interfered with their judicial functioning, including by not allowing them to criticize police action in open court; any attempt to do so would result in sanctions for misconduct. Chief magistrates often acted as the voice of the apartheid regime, criticizing magistrates who acted against the political goals of apartheid. If the executive branch thought the magistrates were acting against apartheid, magistrates were often immediately transferred. The Inspection Services division was perceived as the “Gestapo of the Department.” Many magistrates attempted to limit the actions of the apartheid regime by engaging in a formal, in-depth review of any police application for detention without trial, by relying on the statutory language “you have to satisfy the magistrate.” White South African magistrates were often pressured to join the Broederbond, a membership that aimed to represent the white elite of the Afrikaner society and promote apartheid. It was frequently hinted that Broederbond membership would lead to a more prestigious magistracy position. As the militarization of the apartheid system developed during the 1980s, additional pressure was added to the magistracy. A famous incident occurred in Durban in 1985 when magistrates and prosecutors arrived at a meeting and security police forced them to watch clips and images of political unrest in order to influence the magistrates to support apartheid. The judiciary ultimately found that the magistrates that had been present could not oversee cases dealing with political unrest, in order to remain impartial. During this period, the security police also attempted to recruit magistrates as informers.

Interestingly, during the apartheid period, there were already concerns about the perceived independence of the magistracy. The Hoexter Commission found additional safeguards were necessary to protect the independence of the magistracy, although no changes were made during the apartheid period.

  1. The failure of the magistracy to take accountability for their role in the apartheid regime

In the immediate post-apartheid period, the Truth and Reconciliation Commission (“TRC”) engaged, through the TRC Committee on Human Rights Violations, in attempting to understand the role of legal professionals in the apartheid human rights violations. Largely, the judiciary failed to engage with the TRC, arguing it would harm their independence, set a precedent of executive oversight of judicial activity, and create tensions between judges appointed during the apartheid and post-apartheid periods. Magistrates did not participate in the TRC process in any substantive fashion and were viewed as political actors as a result. The Magistrates Commission contended they did not understand the scope of the allegations made by the TRC, including who was accused, and whether they were going to be held responsible for the actions of other parts of the legal system. According to the Commission, magistrates did not have the capacity to question apartheid-era policies and were only interested in preventing a “recurrence of governmental abuse of power”, a position which validated the perception that magistrates lacked the opportunity and capacity to engage as members of the judiciary. There was also no attempt by the Magistrates Commission to convey an apology either directly to the TRC or more generally to the South African public. Many magistrates also contended that they needed to be distinguished from the more political regional court magistrates. Only one group attempted to engage with the TRC hearings, the Judicial Officers Association of South Africa (JOASA), for its members. They apologized for their role in enforcing apartheid, both publicly supporting apartheid and by covering up or allowing human rights violations, like forced confessions and detention deaths, although they contended that many magistrates attempted to limit the abuses of apartheid.

The Judge President of the Cape High Court, G. Friedman, made a submission to the TRC in his “personal capacity.” As the most prominent member of the judiciary speaking on this issue, his voice rang particularly loudly for the entire judicial system. He stated that judiciary powers during the apartheid period were limited by the structure of the parliamentary system. He also stated that the judiciary had an obligation to apply the laws of apartheid, and could only “ameliorate the harshness of these laws if they found them to be ambiguous.” He implied that the judicial system, in most cases, could not question the security police when detainees stated the security police had assaulted them, or when the security police stated detainees died by “jumping out of a building” or “accidently fallen down the stairs,” because there was no evidence of culpability, only suspicions. He also declared that the independence of the judiciary was not affected by the apartheid government, although he stated that the Appellate Division overturning regional court decisions that favored detainees was often contrary to the law, as in the case of Rossouw v. Sachs, where a detainee was not allowed access to reading materials. Judge Friedman’s public declaration was contrary to many other judges, like Judge White from Transkei, who believed the TRC’s investigations threatened the judiciary’s high esteem and Judge Eloff of Transvaal, who described the TRC’s efforts as a “meaningless exercise.” By contrast, Justice Ackermann of the Constitutional Court, who resigned as a Constitutional Court judge in 1987 due to his opposition to apartheid, stated in his submission to the TRC that all judges should “seek out rigorously, painful as that might be, our own particular prejudices, of whatever nature.”

The creation of the 1996 constitution and the TRC hearings constituted a singular opportunity for the magistracy to take accountability for their role in the apartheid regime. Their failure to take advantage of that transformative period has likely solidified the perception of the magistracy as inferior to the judicial branch, limited their capacity for larger-scale reforms to the legal system, and harmed their overall reputation.

V. STATUTES OF THE MAGISTRATES’ COURTS REFLECT THEIR QUASI-JUDICIAL FUNCTION

  1. Magistrates’ Courts Act

South Africa’s Magistrates’ Courts Act was first enacted in 1944. Among other things, it defined the nature of the Magistrates’ Courts and outlined the requirements for appointing magistrates. Under the Act, Magistrates’ Courts are described as courts of record. Additionally, decisions issued in such courts are intended to be enforceable throughout the country. Criminal proceedings are generally to be conducted in open court, but the Act also allows for exceptions to be made “in the interest of good order and public morals,” for example, to protect the identity of minors.

Magistrates are appointed by the Minister of Justice on condition that they swear to “uphold and protect the Constitution and human rights entrenched in it.” Their qualifications, however, are quite minimal. The Act describes in one sentence that candidates must be “appropriately qualified,” of South African citizenship, and additionally, “fit and proper.”

  1. Magistrates’ Act

The Magistrates’ Act was implemented post-Apartheid in 1993. The Magistrates’ Act created the Magistrates Commission, who are appointed by the president. The Magistrates Commission is composed of a judge, an officer of the Department of Justice, two magistrates of high rank, two regional court presidents, one academic of the legal system, an attorney, and an advocate. The purpose of the Magistrates Commission is to oversee the magistrates, to protect their judicial independence, and to develop judicial training. It also very importantly has the role of being the middle ground between the magistrates and the Minister of Justice, both in terms of communication and in recommendations for appointments of magistrates. The Magistrates Commission has broad powers over magistrates to achieve its goals. The magistrates’ powers and duties are constrained by state laws, and any decisions made by the Minister of Justice are made in consultation with the Magistrates Commission. The magistrates may not, under the Magistrates’ Act, perform other paid work.

In practice, for the selection of magistrates, the Magistrates Commission engages in a shortlisting process to move magistrates from acting to permanent positions. The minimum legal experience is 5 years for entry-level and 7 years for regional courts. Considerations when determining placements can include managerial experience as well as racial and gender imbalances. For example, in Magistrates Commission v. Lawrence, the Magistrates Commission did not grant the plaintiff a permanent position because he was a white male, which is technically impermissible; the selection criteria can consider race and gender, but a magistrate cannot be excluded from the shortlist process simply because of his race and gender, without consideration of other criteria, including his experiences and skill, and no quotas are allowed. A similar issue arose in Singh v. Minister of Justice, where the plaintiff was not shortlisted for any magistrate posts because there were too many “Indian females” within Kwazulu-Natal. In that case, the Magistrates Commission did not consider the plaintiff’s disability, which the High Court contended was contrary to the Equality Act. Another concern with the process has been that magistrates are sometimes appointed without the Magistrates Commission meeting in a quorate, which is contrary to the Magistrates’ Act.  As noted by the High Court of South Africa in Amos  v. Minister of Justice, “As a constitutional state we cannot allow the process of the appointment of magistrates, who are the backbone of our legal system, to be dealt with in a haphazard or lackadaisical fashion.

VI. JUDICIAL ATTEMPTS TO LEGITIMIZE THE AUTHORITY OF THE MAGISTRATE COURT SYSTEM THROUGH MAINTENANCE CASES

Recent maintenance cases have reflected the judiciary’s desire to reinforce the role of magistrates. Maintenance cases are particularly insightful because they reflect most accurately the type of cases magistrates engage with, often vulnerable individuals, specifically single mothers and young children, who come to court as a last resort. The Magistrate’s Court is hobbled when defendants reject its decisions on the basis of lack of authority and appeal.

The Supreme Court of Appeals of South Africa, on January 21, 2022, in the case of Simon Arcus v. Jill Arcus, found in favor of the Magistrate’s Court’s authority. As part of a divorce consent in 1993, a magistrate awarded maintenance for two minor children until they became self-supporting, in 2002 and 2005, and for a wife, Jill Arcus, until her remarriage or death. Decades later, the question before the court was whether a maintenance order qualified as a (a) regular debt, with a prescription period of three years, or (b) a judgment debt, which would be subject to a 30 years prescriptive period. Simon Arcus, Jill’s former husband, did not pay maintenance prior to 2018 but started paying in January 2019, although the issue remained about arrears. He argued in 2020 that he was not obligated to pay arrears because maintenance obligations prior to 2017 were “extinguished by prescription.” His argument stated that the capacity of maintenance orders to be modified by maintenance courts rendered them unable to be qualified as judgment debts. He contended further that maintenance was for “consumption and not accumulation,” and as such, had to be enforced promptly and prescribed within the three-year period of traditional debts. According to Simon, maintenance orders were interlocutory rulings and maintenance debts were contingent on further litigation. He further claimed that maintenance orders were not civil judgments and therefore could not be judgment debts.

The court disagreed and held that maintenance court judgments were judgment debts. It explained that “maintenance orders are: (a) dispositive of the relief claimed and definitive rights of the parties, to the extent that they decide a just amount of maintenance payable based on the facts in existence at that time; (b) final and enforceable until varied or canceled; (c) capable of execution without any further proof; and (d) appealable.”

The court further found the argument that maintenance orders were interlocutory orders implausible and determined that they instead had the full force and effect of res judicata law. The court also disagreed with the contention that maintenance court orders were not civil judgments and cited the statutory language in Section 24(1) of the Maintenance Act, providing that “any order or direction made by a maintenance court under this Act shall have the effect of an order or direction of the said court made in a civil action” as support.

Lastly, the court was unpersuaded by Simon’s underlying policy argument that a 30-year prescription period for maintenance was overly burdensome and imposed unfair hardships on debtors. Instead, the court viewed prejudice to the debtor as lesser than the value to the vulnerable creditors, who were usually mothers and children.

A concurring opinion by Judges Mocumie and Kgoele additionally noted that Simon’s claims would “perpetuate the hardships suffered by the most vulnerable groups in our society: women and children.” The court found it necessary to support the enforcement of maintenance orders, and support the prior holding of the Constitutional Court in Bannatyne v. Bannatyne, a 2003 Constitutional Court case that aimed to emphasize the authority of maintenance orders on behalf of the rights of children.

The Arcus decision is similar to the lower court decision in the January 2022 case MBJ v. MBP, whereby a debtor willfully misled the court over his finances, but argued he should have nonetheless had the opportunity to appeal a willful contempt charge for failure to pay maintenance. The court refused his appeal, stating that his refusal to pay maintenance for his minor children was without acceptable explanation and he therefore should not have the opportunity to further appeal. These two maintenance cases highlight attempts by the judicial system to reinforce the authoritative power of decisions made by the Magistrates’ Court.

The question of how to deal with arrears in maintenance payments has plagued both the magistracy and the judicial systems for years. InJ v. L, the High Court of South Africa (Free State Provincial Division) heard a case whereby the respondent had not paid maintenance since 2010. In the 2019 case, the court criticized the choices of parents to force “innocent children into immature battles and power games.” Finding that the respondent was in contempt of court for his failure to pay maintenance, the court suspended his 90-day prison sentence for three years as long as he decided to follow the maintenance order. The court considered imprisonment traumatic to the child, and unhelpful to the payment of maintenance.

Comparatively, in S v. Karolus, the Western Cape Division of the High Court heard a case where the accused failed to pay maintenance from 2008 to 2018. The accused argued in his defense that he only engaged in seasonal and temporary work, was incarcerated for a period of time, and had another child to maintain. The Magistrate convicted the accused for a twelve-month period. The High Court on review contended that in order to prove the prima facie case of contempt, the state has to prove every element of the failure to pay maintenance. The High Court found that due process was not followed due to a lack of legal representation and the failure of the magistrate to subject the accused to cross-examination sufficient to prove a prima facie case, as the defendant did have valid points in his defense. The High Court overturned the accused man’s sentence and demanded a new trial on the merits. This kind of contrast in decisions reinforces judicial concern about the Magistrate’s Court’s capacity to enact common standards of judicial decision making.

These cases reflect the reality that magistrates are acting in practice as judges and are primarily submitted to judicial supervision. However, defendants continue to claim that magistrates fail to have judicial authority, and the judicial system has primarily engaged in case by case, limited decisions, to enforce magistrates’ judicial authority. These kinds of questions backlog the system and undermine the role of the Magistrates’ Courts within South Africa.

CONCLUSION:

The specific role of the Magistrates’ Courts developed within the colonial context of South Africa, as a judicial entity straddling the legal and political lines. The failure of Magistrates’ Courts to exercise independence during the apartheid or post-apartheid period has led to its characterization as a political entity with limited legitimacy. The current statutory authority of the Magistrates’ Courts only reflects that limited power and authority. Legislative changes have failed to redefine the role of the Magistrates’ Courts in contemporary matters. The judicial courts have attempted to reinforce the authority of the Magistrates’ Courts in a piecemeal fashion. Magistrates’ Court cases manage an enormous amount of caseload and are consistently engaging with citizens on a day-to-day basis. They are especially engaging with vulnerable individuals and are the first port of call for all legal activity in South Africa. The colonial perception of the Magistrates’ Courts no longer functions because magistrates are acting as quasi-judges. Discussions in the magistracy, judiciary, and in the executive branch must be had on how to redefine the role of the Magistrate Court system to grant magistrates more judicial authority and reinforce their legitimacy within the South African legal system.


[1] See, Explanatory note to TFH van Rooyen and Two Others v The State and Six Others (note that this case is not currently published). An article analyzing the decision that is of interest is C Okpaluba, Institutional Independence and the Constitutionality of Legislation Establishing Lower courts and Tribunals: Part II 29(3) Journal for Juridical Science 149-172 (2004).

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The Bounds of Bond v. United States: International Treaties and Military Prosecution of Bacteriological Murder, Vol. 56.3 https://cornellilj.org/2024/03/01/the-bounds-of-bond-v-united-states-international-treaties-and-military-prosecution-of-bacteriological-murder-vol-56-3/ Fri, 01 Mar 2024 17:15:58 +0000 https://cornellilj.org/?p=3992 Introduction

Little has been written about congressional treaty power beyond the seminal cases Missouri v. Holland, Reid v. Covert, and of course, Bond v. United States. But even with such a limited pool of information, one rule is clear: congressional power to regulate interstate commerce does not permit prosecutions for domestic crimes under statutes implementing international treaties. But does this limit extend to military prosecutors seeking to convict a soldier of murder involving internationally acquired bacteriological weapons?

This Essay discusses a recent conviction of an Army Staff Sergeant, also a Special Agent of the U.S. Army Criminal Investigation Division, who murdered his wife with a bacteriological weapon derived from pufferfish. The Staff Sergeant was convicted based on the statute executing the Biological Weapons Convention and sentenced to seventy years in prison. The Staff Sergeant appealed on grounds of religious freedom and equal protection because of the government’s use of his religion, Vodou, in its argument. But interestingly, the appeal makes no mention of the seminal treaty power case Bond v. United States, which might preempt the above charge’s applicability entirely.

  1. Bond v. United States

In 1997, President Clinton ratified the Chemical Warfare Convention. The next year, Congress codified 18 U.S.C. § 229(a). Relevant here, the statute made it unlawful to knowingly:

(1) develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon; or

(2) assist or induce, in any way, any person to violate paragraph (1), or to attempt or conspire to violate paragraph (1).

Carol Anne Bond was a microbiologist who discovered her husband’s affair after her closest friend, Myrlinda Haynes became pregnant with his child. She sought revenge against her friend. Bond stole 10-chloro-10H-phenoxarsine, an arsenic compound, from her workplace; she also ordered potassium dichromate from Amazon. Both chemicals she procured are toxic to humans with lethal potential. But Bond never intended to kill Haynes (or even harm her that much, for that matter). She merely intended for Haynes to touch the chemicals and suffer from “an uncomfortable rash.” Over the course of eight months, Bond spread the chemicals over Haynes’ car, mailbox, and doorknob, almost entirely failing to make contact. But in one instance, Haynes suffered a chemical burn on her thumb after retrieving her mail. After reporting to the U.S. Postal Inspection Service, Bond was caught opening Hayne’s mailbox, stealing an envelope, and stuffing potassium dichromate inside Hayne’s car. Along with the mail-related offenses, Bond was charged under 18 U.S.C. § 229(a) for possessing and using a chemical weapon.

The Supreme Court took issue with the federal government’s use of 18 U.S.C. § 229(a) in prosecuting Bond. The government contended that prosecuting Bond under § 229(a) was necessary and proper to execute the federal government’s power to make treaties. The Supreme Court ultimately rejected that argument, reasoning that “the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”

  1. United States v. Lindor

On September 3rd, 2018, Special Agent Lesly Lindor murdered his wife with tetrodotoxin, a deadly neurotoxin found in pufferfish. Special Agent Lindor acquired the toxin from Haiti where, on top of his use of poison, he enlisted the aid of “mystical forces” to kill her.[1] Three years later, Lindor pleaded guilty to a litany of charges, including a violation of Article 134 of the Uniform Code of Military Justice, specifically that:

“Lindor, U.S. Army, did, between on or about 29 April 2018 and on or about 26 July 2018, at or near Fort Hood, Texas, knowingly attempt[ed] to acquire and possess a biological toxin, to wit: Tetrodotoxin, for use as a weapon, an offense noncapital, in violation of Title 18, United States Code, Section 175(a).”

Lindor was sentenced to seventy years in prison in exchange for his plea, and has since appealed.. The appeal is based on religious freedom and equal protection because of the government’s use of Lindor’s religion, Vodou, in its argument. But interestingly, the appeal makes no mention of the Bond v. United States, despite the procedural similarities.

Like 18 U.S.C. § 229(a) in Bond, the federal government prosecuted Lindor with a statute enabling an international treaty. In 1974, the United States, along with over 100 other countries, signed the Biological Weapons Convention. The statute, 18 U.S.C. § 175(a), tracks the language of 18 U.S.C. § 229(a):

(a) whoever knowingly develops, produces, stockpiles, transfers, acquires, retains, or possesses any biological agent, toxin, or delivery system for use as a weapon, or knowingly assists a foreign state or any organization to do so, or attempts, threatens, or conspires to do the same shall be fined under this title or imprisoned for life or any term of years, or both.

But unlike in Bond, which presented an issue of first impression, defendants have been prosecuted under 18 U.S.C. § 175(a) post-Bond. In United States v. Chamberlain, the defendant possessed over a thousand lethal doses of abrin, a toxin which the Secretary of Health and Human Services described as a toxin with “the potential to pose a severe threat to public health and safety.” Along with the abrin, the defendant made an IED loaded with shrapnel, inferring that the defendant “intended significant harm to a large number of people.” The Chamberlain court distinguished its case from Bond by reasoning that the lover’s quarrel in Bond was locally limited, while the defendant in Chamberlain had “potential to cause mass suffering, including the possession of extremely dangerous substances with the potential to cause severe harm to many people.

Lindor falls somewhere in between Bond and Chamberlain, poising itself as a potential new chapter in treaty power jurisprudence. Like the defendant in Bond, Special Agent Lindor had one target: his wife. But he didn’t use “kitchen cupboard” supplies that Chief Justice Roberts contended was not within the reach of the federal government’s police power. Rather, like the defendant in Chamberlain, Special Agent Lindor used a biological agent, tetrodotoxin, that more so falls within the “biological weapons” which the Biological Weapons Convention intended to prevent the use of. But again, Lindor only had one target, and no evidence suggests he intended to harm “many people” like the defendant in Chamberlain.

  1. The Path Forward

The Army Court of Criminal Appeals heard oral argument for Lindor on March 1, 2023. But that hearing was limited to the issues raised in the appeal: (1) whether the government violated the Religious Freedom Restoration Act; (2) whether the government violated the free exercise clause; (3) whether the government violated the equal protection clause; (4) evidentiary issues; and (5) unreasonable post-trial delay. Unable to consider Bond, the Court affirmed Lindor’s conviction on June 14, 2023.

The United States Court of Appeals for the Armed Forces, an Article I court, is the last stop before the U.S. Supreme Court,[2] at which point Bond’s applicability could be reconsidered. That specific issue wasn’t raised on appeal, so generally the Court wouldn’t consider it.[3] But that rule isn’t stringently enforced.[4] As one scholar aptly points out, many seminal cases – including Erie R.R. Co. v. Tompkins,Mapp v. Ohio, Washington v. Davis, and Dickerson v. United States – were decided on issues not raised by the litigants. So it’s conceivable that the Supreme Court would address it in Lindor if it were to grant certiorari.

I posed the issue to Professor Michael C. Dorf, asking: (1) why Mrs. Bond wasn’t prosecuted under 18 U.S.C. § 175(a) instead of 18 U.S.C. § 229(a), given that arsenic and potassium dichromate would qualify as “biological agents” under 18 U.S.C. § 178(1) because they’re naturally occurring (at least as far as Google told me); and (2) how Lindor’s prosecutors were even able to use 18 U.S.C. § 175(a) at all, given the precedent set by Bond? As to my first question, Professor Dorf wisely retorted that while he was no expert in distinguishing biological and chemical weapons, given that biology is based on chemistry (which is, in turn, based on physics), one might think that all biological weapons are necessarily also chemical weapons but not vice-versa.

But the second question was my real critique of Lindor, and it was rooted in the Supreme Court’s deference to military courts.[5] For instance, the 2020 decision Ramos v. Louisiana held that criminal convictions must be made by a unanimous jury, indiscriminate of a federal or state court setting. But that has not been imposed on military courts. Professor Dorf suggested there might have been a successful challenge to the government’s use of 18 U.S.C. § 175(a), but that Lindor’s guilty plea rendered the argument moot. He didn’t believe that a military court would be exempt from an underlying objection to the extension of the treaty power, but he did suggest that congressional power “[t]o make Rules for the Government and Regulation of the land and naval Forces” might distinguish Lindor from Bond. I am skeptical only because the Bond decision was largely dedicated to congressional intent behind ratifying the Chemical Warfare Convention.[6] I am unsure if Congress considered active duty servicemembers committing religiously motivated murder when it ratified the Biological Weapons Convention. In fact, the stated purpose of the statute was to “protect the United States against the threat of biological terrorism.” And in the criminal code, the United States qualifies international terrorism as violent acts occurring mostly outside the territorial jurisdiction of the United States. So the exception to “mostly outside” seemingly aligns more with Chamberlain than Lindor, despite the nonexistence of a domestic terrorism statute.[7]

Conclusion

Lindor poses a discrete but important issue: does Bond’s prohibition on federal government prosecutions based on statutes executing international treaties extend to military prosecutors? But that issue itself raises two more questions: (1) if Bond doesn’t apply here, is it because of the fact-specific distinction, the elasticity of military due process, or Congress’ power to regulate the military? And (2) if Bond does apply here, why didn’t it apply in Chamberlain if the Bond court wasn’t concerned with the number of potential victims?

Despite the egregious nature of Lindor, I am not certain Bond would permit its affirmation. Only time will tell if the Supreme Court’s treaty power jurisprudence gains another chapter. I believe the issue was never raised in Lindor simply because no one thought to do so. And if the Supreme Court were to make an exception to the Party Presentation Rule, this case is ripe for it.


[1] Lindor practiced Vodou (often incorrectly referred to as “voodoo”), described as a syncretism of African religious traditions and Catholicism. See Vodou, Serving the Spirits. At Lindor’s trial, mentions of Vodou involved powders in rituals and certain beliefs that the powders can cause injury or death.

[2]See also 10 U.S.C. § 867a (“Decisions of the United States Court of Appeals for the Armed Forces are subject to review by the Supreme Court by writ of certiorari as provided in section 1259 of title 28”).

[3] (Scalia, J.) (“[t]he premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.”).

[4] See, e.g., Singleton v. Wulff, (“The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases. We announce no general rule.”).

[5] The elasticity of due process in military courts and for servicemembers generally is often called “military due process.” See, e.g.,Seymour W. Wurfel, Military Due Process: What is it?.

[6] Bond v. United States (describing a statute that “makes it a federal offense to poison goldfish” as not a “realistic assessment of congressional intent”) (internal citations omitted).

[7] One district court judge recently described this conundrum as a “donut hole in the statute . . . [allowing] the government [to] obtain search warrants in an investigation of something that is not a crime.” Matter of Search of One Apple iPhone Smartphone. But see 18 U.S.C. 2331 (defining, but not providing a penalty for, domestic terrorism).

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Can Output Produced Autonomously by AI Systems Enjoy Copyright Protection, and Should It? An Analysis of the Current Legal Position and the Search for the Way Forward, Vol. 55 https://cornellilj.org/2024/01/31/can-output-produced-autonomously-by-ai-systems-enjoy-copyright-protection-and-should-it-an-analysis-of-the-current-legal-position-and-the-search-for-the-way-forward/ Wed, 31 Jan 2024 22:49:36 +0000 https://cornellilj.org/?p=3953 The debate as to whether output produced autonomously by Artificial Intelligence (A.I.) systems can, and should, benefit from copyright protection is evolving from a topic of largely theoretical discussion to a question with which courts and legislators can no longer avoid grappling.

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The Extra-Territorial Scope of Non-Refoulement, Vol. 55 https://cornellilj.org/2024/01/31/the-extra-territorial-scope-of-non-refoulement/ Wed, 31 Jan 2024 22:43:28 +0000 https://cornellilj.org/?p=3946 The core principle at the heart of international law’s scheme for the protection of refugees is the principle of non-refoulement – that is, the obligation on the part of States not to return those with a well-founded fear of persecution to a territory where their life or freedom is threatened by reason of a protected characteristic. A broad reading of the principle that extends States’ obligations extra-territorially is consistent with the aims of the international refugee regime.

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Merger Reviews in Labor Markets: How Antitrust Merger Review Divides Labor, Vol. 55 https://cornellilj.org/2024/01/31/merger-reviews-in-labor-markets-how-antitrust-merger-review-divides-labor-vol-55/ Wed, 31 Jan 2024 22:34:59 +0000 https://cornellilj.org/?p=3941 Labor markets have historically been considered irrelevant with antitrust merger reviews. However, recent developments suggest that this may change. The complaint by the Department of Justice (the “DOJ”) against the merger between Penguin Random House and Simon & Schuster was the harbinger of such change.

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Bollywood: The Unexpected Virtue of Copying Hollywood, Vol. 55 https://cornellilj.org/2024/01/31/bollywood-the-unexpected-virtue-of-copying-hollywood-vol-55/ Wed, 31 Jan 2024 22:16:56 +0000 https://cornellilj.org/?p=3927 The name itself suggests something treading the fine line between cinematic inspiration and a Frankensteinian creation gone wrong. Bollywood coined the name following Hollywood’s success, minting the goldmine of California’s neighborhood that had become synonymous with the domestic film industry.

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North American Energy in the Crossfire, Vol. 55 https://cornellilj.org/2024/01/31/north-american-energy-in-the-crossfire-vol-55/ Wed, 31 Jan 2024 22:04:40 +0000 https://cornellilj.org/?p=3921 North America is the beating heart of global energy markets undergoing a terrible energy crisis that threatens to upend both the economy and global security. The clearest path out of this global crisis is increasing energy supplies from North America, which can restore energy security and drive a transition to cleaner energy sources.

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Call Me By [My] Name: Gender-Fair Language Under German Civil and Constitutional Law, Vol. 55 https://cornellilj.org/2024/01/31/call-me-by-my-name-gender-fair-language-under-german-civil-and-constitutional-law/ Wed, 31 Jan 2024 21:54:48 +0000 https://cornellilj.org/?p=3913 “If everyone knows that the male includes the female, what’s the harm?”

There have been many advances in gender equality over the last century; however, women and non-binary individuals still face on key disadvantage: language.

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The Current Reality of Post-Arab Spring Constitutional Reforms in Morocco and Tunisia, Vol. 56.2 https://cornellilj.org/2023/12/29/the-current-reality-of-post-arab-spring-constitutional-reforms-in-morocco-and-tunisia/ Fri, 29 Dec 2023 06:45:03 +0000 https://cornellilj.org/?p=3903
  • Introduction
  • During the 2010-2011 political uprisings in countries across the Middle East and North Africa (“MENA”), dubbed the “Arab Spring,” protestors championed constitutional reforms as a way of transforming their autocratic regimes into more democratic systems. In reality, though, there was a large gulf between the aspirations of these reforms and what they were actually able to accomplish. I argue that this discrepancy is a large part of the underlying reason why, today, the Arab Spring is largely seen as a failure, despite the movement’s optimistic beginnings and subsequent constitutional reforms over the past few years.

    In making this argument, I focus my analysis on the constitutional reforms of two countries in North Africa: Morocco and Tunisia. The 2011 Moroccan constitution is a particularly pertinent example of how the intentions and impact of the democratic reforms of this period diverged. On its face, this constitution appeared to create a more democratic government that established a form of “separation of powers.” However, in reality, even under a new constitutional model, the king retained far-reaching powers over the weaker legislative and judicial branches. Various human rights provisions, including ones related to indigenous rights, were also added to the constitution as a means of addressing the specific concerns of the Arab Spring protestors. However, although recently there have been some concrete steps taken by the Moroccan legislature to realize parts of these provisions, in truth these reforms have been slow to implement, if implemented at all.

    The divergence between the Tunisian constitution’s democratic reform aspirations and its current status is even more pronounced than in Morocco. At the time of its ratification in 2014, the Tunisian constitution was considered by some to be the most progressive in the MENA. Among a cascade of human rights and democratic reforms, the Constitution established independent executive, legislative, and judicial branches and allowed for a process of presidential removal. However, in 2021, the country appeared to slip back into authoritarian rule once more as the constitution was revised in a way that strengthened the president’s powers and eroded many of the newly established human rights provisions.

    Both examples illustrate the limits of democratic constitutional reform movements, in general, and as an outgrowth of the Arab Spring in particular, of actually making changes to governance on the ground. In making this argument, I first provide some background on the Arab Spring uprisings and the constitutional reforms that followed in Morocco and Tunisia. Then, I conduct a comparative analysis of the separation of powers and human rights provisions in these new constitutions, before concluding my argument.

    1. Overview of the Arab Spring and constitutional reforms in Morocco and Tunisia

    The “Arab Spring” was a wave of uprisings that spread across the MENA beginning in December 2010, after a Tunisian street vendor set himself on fire in protest of government authorities, lasting approximately through Spring 2011. Following Tunisia’s example, in February 2011, hundreds of thousands of Moroccan activists across the country began to take to the streets to protest the monarchy and advocate for social change and a more democratic constitution based on popular sovereignty and the separation of powers.

    In spite of its hopeful beginnings, today, the Arab Spring is generally regarded as a failure. Instead of helping bring about democracy, some scholars argue that the large-scale social movement actually further entrenched the power of corrupt leadership in the Arab world. While many of the constitutional structures implemented by these revolutionaries still remain in many countries, many reforms just exist on paper and have failed to be implemented in reality. Morocco and Tunisia are interesting exemplars of the aspirations and pitfalls that categorized this wave of constitutional reform in the MENA. In this paper, I focus my analysis on the new provisions in the 2011 Moroccan and 2014 Tunisian constitutions that pertain to the separation of powers and human rights in particular, as these were two of the dominating concerns surrounding the protests in these countries.

    The 2011 Moroccan constitutional reforms are generally regarded as having less legitimacy than the 2014 Tunisian reforms. The King of Morocco himself was the one who created a commission to redraft the Moroccan constitution in response to the protests against his regime. Although the royal commission tasked with codifying the constitutional reforms met with representatives from various political and civil society groups, most of the political parties in Morocco did not contribute significantly to key aspects of the text and the king’s own agenda drove the entire constitutional reform process.

    In contrast, Tunisia had often been considered one of the few democratic success stories of the Arab Spring, and the resulting constitutional reforms were initially imbued with a higher degree of legitimacy. After Tunisia’s authoritarian ruler was overthrown, the Tunisian National Constituent Assembly was created to devise a new constitution. The final product of the drafting process was the result of a compromise between the main political forces in the legislature and featured strong civil participation and government transparency. However, after struggling with implementing these new provisions, in 2021 the Tunisian government changed their constitution once more in a way that appears to roll back many hard-sought democratic reforms.

    1. Separation of Powers Provisions in Moroccan and Tunisian Constitutions

    Morocco created its first constitution as an independent state in 1962, establishing a constitutional monarchy in which the king reigned supreme. On its face, the 2011 Moroccan constitution democratized the government somewhat, setting up “a constitutional, democratic, parliamentary and social Monarchy…. founded on the separation, the balance and the collaboration of the powers, as well as on participative democracy of [the] citizen….” The reference to a “social Monarchy” refers to the social rights of the Moroccan people and the monarchy’s role as a protector of these rights. Article 6 declares the law “the supreme expression of the will of the Nation” and one that all people, including public officials, are bound equally by, which implies the creation of a more democratic system that holds everyone to account under the law regardless of their status.

    The new Moroccan constitution also appears to provide stronger separation of powers protections by giving increased powers and independence to the legislative and judicial branches of government. Specifically, it enlarged the legal and legislative domains of the Parliament and expanded mechanisms for government oversight. Article 108 also ensures greater independence of the judicial branch by requiring presiding judges to be irremovable save for the implementation of legal procedures.

    However, despite some of these changes, the new constitution continues to provide that political power within the government remains extremely lopsided in favor of the executive. The king remains the supreme ruler and chief executive who governs without accountability to the other two branches or legal constraints. His powers are not merely symbolic but actually maintain his predominance over the parliament. The king is the one who appoints the Head of the Government, which is not explicitly subject to a vote by the parliament, as well as the other cabinet members, per the Head of Government’s proposals. Article 52 further specifies that the king’s messages cannot be debated and under Article 96, the king has the power to dissolve one or both of the chambers of Parliament. The king also has the power to sign and ratify any treaty, but parliament is more limited in its treaty powers, as it cannot approve treaties that have political or military aspects or treaties that significantly change a law. Even the provision detailing the separate powers of the judiciary featured in Article 107 of the 2011 constitution is misleading as the king is the one who presides over and oversees Morocco’s Higher Judicial Council. Furthermore, the constitution provides that the various ambiguities contained in the new text are not left to the interpretation of an independent judiciary or legislature, but to the king himself.

    In contrast, the 2014 Tunisian constitution enacted stronger separation of powers provisions. The preamble establishes Tunisia as “a republican, democratic and participatory system” based on the “sovereignty of the people, exercised through the peaceful alternation of power through free elections, and on the principle of the separation and balance of powers….” The constitution establishes that executive authority is exercised by the president, who is the head of state, and elected for five-year terms. Constituted under this branch are also the Head of Government and government ministers, who are in charge of the more administrative and logistical tasks of governing, such as creating, changing, and dissolving ministries, secretaries of state, and public institutions.

    The Tunisian Assembly is the legislative authority in the country and is financially independent from the financial and administrative constraints of the state budget. The constitution provides that representatives of the Assembly are chosen by the people via free and fair democratic elections, to serve for five-year terms each. There are checks imposed by the executive branch on the legislature, such as the provision that only the Head of Government is “entitled to present draft laws related to the ratification of treaties and draft budget laws” and the president provides a check on the Assembly by approving or vetoing legislations.

    Title Five of the Constitution creates an independent judiciary, which includes the Supreme Judicial Council and the Constitutional Court. The Constitutional Court in particular oversees the drafting of laws by the executive and legislative branches, reviews treaties before the President signs them, and approves changes to the procedural laws that govern the legislature, among other duties.

    However, the 2021 revisions to the constitution threaten to roll back many of the substantive reforms that allowed for increased separation of powers in the country. While the 2014 version created a parliamentary-presidential system, the 2021 version reverts Tunisia to just a presidential system (sometimes referred to as a “hyper-presidential” system). In the new governmental system created by the constitution, the executive branch is empowered while the judicial and legislative branches are weakened, centralizing power in the president. Proponents of these changes rationalize that they are necessary to create a stronger presidency that will be able to guide Tunisia through its recent economic crisis. The president is now the one who

    unilaterally appoints the prime minister and the cabinet. Additionally, the new document does away with Article 88, which allows for the president’s impeachment, and it now requires a two-thirds vote to force the prime minister to resign under Article 115 (and only once a term), whereas before only a simple majority was required. The revisions also halve the legislative branch in an attempt to weaken its power. The new text also removes the ability of the constitutional court to interpret and adjudicate regarding the presidential powers, thus subsuming the judicial branch under executive control as well. In practice, these changes eliminate the processes by which Tunisia’s president can be held accountable and does not allow for another branch of government to provide a counterbalance to the executive.

    1. Human rights provisions in Moroccan and Tunisian constitutions

    Some of the big additions to the 2011 Moroccan and 2014 Tunisian constitutions included added human rights provisions that enumerated the equal rights of men and women under the law, including the freedom of expression and protection from bodily harm.

    Significantly, the preamble of the 2011 Moroccan constitution reflects these more equalizing principles in describing a more pluralistic country, with Arab-Islamist, Amazigh, and Saharan-Hassanic components and African, Andalusian, Hebraic, and Mediterranean influences. It also establishes parity between men and women and prohibits all forms of discrimination or unfair treatment. However, many of these aspirational human rights additions have been very slow to live up to their full potential and be implemented legislatively.

    Article 5 of the new Moroccan constitution has been the subject of particular scrutiny recently. This article recognizes Tamazight, the language of the indigenous Amazigh ethnic group, as an official language, a long-standing demand by indigenous human rights activists in the country. While strongly advocated for by many Arab Spring protestors, many activists still insist that this enumeration of Amazigh rights did not go far enough. In particular, although the indigenous language was given status, Arabic remains “the” official language of the state with Islam as the official religion. In fact, soon after this new constitution was enacted, a prominent Amazigh entertainer and activist posed a question to a government minister in Tamazigh, which was the first time that this language was spoken within the Moroccan parliament. While the members of parliament in the opposition praised this action and encouraged the government to include Amazigh as a working language in the building, the majority rejected this initiative. As such, despite the promises of the 2011 constitution, the official usage of Amazigh was not operationalized immediately.

    However, government sentiments towards the official usage of Tamazigh have begun to change over the years following persistent activism to implement the promises of the revised constitution. In June 2019, Moroccan lawmakers unanimously approved a bill that confirmed Tamazigh’s official status and cemented its use, alongside Arabic, by government authorities and schools, and in cultural initiatives. In January 2022 the Moroccan Ministry of Justice made a rather bolder step in signing a cooperation agreement with a Moroccan academic institution to begin integrating the language into Moroccan courtrooms and for use in litigation. This change in official policies and attitudes towards indigenous rights indicates the slow ways in which some aspects of aspirational human rights reforms within the Moroccan constitution are beginning to become practiced in reality.

    In contrast, the 2014 Tunisian constitution explicitly set forth more sweeping human rights provisions in their text than the Moroccan constitution and took bigger steps to implement these rights from the outset. Like the Moroccan constitution, the 2014 Tunisian constitution maintains the equal rights of men and women before the law and outlaws discrimination. However, the Tunisian text also enumerates and expands upon specific rights that the Moroccan constitution does not. For example: Article 26 guarantees the right of political asylum of stateless persons; Article 27 provides individuals protection from ex post facto laws; Article 38 states that health care is a right for every human being; Article 39 creates a right to free education and requires schooling for those up to 16-years-old; Article 40 enumerates the right of a safe work environment and fair wages; and Article 48 protects disabled people from discrimination.

    However, the 2021 constitutional reforms threaten the continued implementation of these human rights ideals. For example, while the 2014 Tunisian constitution emphasized the secular nature of the state, the new constitution places greater emphasis on the country’s Islamic character, a provision that human rights groups fear could be used to justify the curbing of certain rights, such as gender equality, based on extreme religious principles. In addition, while the 2014 constitution stated in Article 49 that the rights and freedoms of citizens can only be limited “for reasons necessary to a civil and democratic state,” the 2022 version has deleted this wording. In addition, although there were few changes to the main section of the constitution that lists rights and freedoms, some human rights groups claim that this new constitution merely lists these rights without actually creating and maintaining the necessary institutions and mechanisms that protect these freedoms from being infringed.

    1. Conclusion

    While initially promising in their potential for implementing democratic reform, the post-Arab Spring 2011 Moroccan and 2014 Tunisian constitutions failed to live up to their stated ideals in many respects. This is particularly true regarding the separation of powers and human rights provisions enumerated in these texts. While the Moroccan constitution declared the country a democracy, this proved to only be in name as the monarch continues to retain strong executive powers that completely overpower those of the other two branches. Although Tunisia’s 2014 revisions created much stronger government branches that held the executive to account, the 2021 constitutional revisions effectively did away with all these checks, paving the way for presidential supremacy once more. Furthermore, while both Morocco and Tunisia promoted important human rights provisions in their new constitutions as a response to the reforms called for by Arab Spring protestors, in reality, these reforms have either been slow to operationalize, in the case of Morocco, or undermined by subsequent provisions, as in the case of Tunisia. The conditions of the constitutions in both these countries are part of the reason why many consider the Arab Spring unsuccessful—while new legal doctrines often look promising on paper, the real challenge is their continued real-life implementation.

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    Some Questions About Ukrainian “Way to NATO” Constitutionality: Some Legal Aspects Which May Become the Stumbling Blocks for Ukrainian Future NATO Membership, Vol. 56.2 https://cornellilj.org/2023/12/29/some-questions-about-ukrainian-way-to-nato-constitutionality-some-legal-aspects-which-may-become-the-stumbling-blocks-for-ukrainian-future-nato-membership-vol-56-2/ Fri, 29 Dec 2023 06:20:49 +0000 https://cornellilj.org/?p=3892 Introduction 

    Following the recent official survey, almost 90% of Ukrainians want Ukraine to become a North Atlantic Treaty Organization (“NATO”) member, which is logical given Russia’s full-scale invasion in 2022. The paradox, however, is that such a way is blocked primarily because of the Russian invasion. Putin reasoned that by invading, he could halt the Ukrainian way to membership in NATO.

    After more than a year and a half after the Russian full-scale military invasion of Ukraine, the end of the war seems elusive in the near future. Nevertheless, if neither Russia nor Ukraine accomplishes a military win, they will be forced to start some type of negotiations. It is absolutely obvious that one of the critical questions during negotiations will be Ukraine’s future NATO status. The recent “scandal” with the NATO official’s statement about possibly exchanging the Ukrainian territories for NATO membership only proves that such a question is very actual and will remain so for the foreseeable future. 

    In 2019, the “way to NATO” was added to the Ukrainian Constitution through constitutional amendments enshrined in different parts, including the Preamble.

    Reviewing the Draft of the constitutional amendments (hereinafter “Draft”), the Constitutional Court of Ukraine (hereinafter “Court”) decided that the proposed changes were constitutional and corresponded with the requirements of the constitutional articles and provisions. However, a Court decision of this magnitude drew six separate opinions from the judges involved in voting. They underlined some critical aspects, objections, clarifications, and arguments that may influence Ukraine’s decision to become a member of NATO in the future. 

    It is possible that NATO opponents may use the “nuances” in the separate opinions to slow or even stop the Ukrainian movement toward NATO membership by appealing to the Constitutional Court or International organizations. Moreover, there is no guarantee that the future Constitutional Court will not use these arguments in deciding differently than their predecessors. 

    Preamble Amendment

    One of the most ambiguous amendments added by the legislators was to the Preamble. The amendment added the wording “caring for the strengthening of civil harmony on Ukrainian soil” and “confirming the European identity of the Ukrainian people and the irreversibility of the European and Euro-Atlantic course of Ukraine.” By adding new wording, the legislators changed, or possibly renewed, the reasons for adopting the Constitution. In fact, the amendments changed the Constitution’s essence and even the People’s will without consulting the People who are the one source of the State power. 

    The Ukrainian Constitution enshrines two types of amendment procedures: a stringent one for Sections I, III, and XIII, which a national referendum should approve, and a basic one for all other Sections. However, the Constitution is silent about amendments to the Preamble. Exploiting this gap and by avoiding changes to Sections I, III, and XIII, the Ukrainian Parliament approved the Draft without asking the People’s opinion. 

    In his separate opinion, Judge Oleh Pervomaiskyi astutely recognized that the Preamble contains the historical and legal prerequisites for the Constitution’s adoption, as well as constitutional values and other components of the constitutional system. Furthermore, since the Preamble’s provisions are used to understand the essence and content of the Constitution of Ukraine, Judge Pervomaiskyi noticed that the Court should state an additional legal position on this case.

    In his separate opinion, Judge Melnyk also underlined that the Constitution of Ukraine is an act of the People’s constituent power and that the People only gave the right to the Parliament to adopt the Constitution once. That is why changing the Preamble was like re-writing the historical moment of the Constitutional adoption, which is impossible in principle. This revision may influence the foundation of the constitutional order in Ukraine and guarantee the stability of the State’s Basic Law.

    Unfortunately, the Court chose the easier path by making a limited surface-level analysis within the basic constitutional amendment checking framework, instead avoiding a deep and fundamental analysis of the case. The Majority did not hear their colleagues, who were unsettled by the profoundness of the changes to the Preamble, which may be a severe problem for the Ukrainian future.  

    Basically, agreeing with the Court’s conclusions, Judge Mykhailo Gultai’s separate opinion also pointed out that the Court should have analyzed the Draft more carefully because the Constitution does not mention the procedure for changing the Preamble. Moreover, since the Preamble is a fundamental part of the Constitution, its provisions are critically essential and cannot be amended using regular procedures without further interpretation by the Court.

    Speaking more radically, Judge Oleksandr Kasminin, in his separate opinion, pointed out that the legislature cannot amend the Preamble without a constitutionally enshrined procedure. Further strengthening his position, Judge Kasminin mentioned that the Preamble is an introductory part that outlines circumstances or reasons for promulgation or adoption. With these distinctions in mind, such a core part of the Constitution cannot be amended at all.

    The Declaration of Sovereignty Provisions 

    In the author’s opinion, the second significant issue is that the  Declaration of State Sovereignty of Ukraine (hereinafter “Declaration”) bans participation in any military unions. The Court did not analyze this potential inconsistency.

    Three historical documents in Ukraine play a significant role in the founding of Ukraine as an independent sovereign state. The first one is the Declaration (1990), which proclaims “the state sovereignty of Ukraine as the supremacy, self-dependence, absoluteness, and indivisibility of the authority of the Republic within the limits of its territory and independence and equality of rights in foreign relations.” Furthermore, the Declaration enshrined that it shall be the basis for the new Constitution and shall determine the state positions during the conclusion of international treaties. The second historical document is the Act of Declaration of Independence of Ukraine (1991). It proclaimed Ukraine’s independence and noted that it implemented the Declaration’s provisions. The final document is the Ukrainian Constitution (1996), which was adopted ruling the Act of Declaration of Independence of Ukraine.

    This document trio has a strong historical and legal connection to Ukraine’s state-building process. They were adopted as a logical continuation of each other and laid the groundwork for establishing Ukraine as a nation. The Declaration proclaimed the non-aligned status of Ukraine, signaling its intention to become a permanently neutral state in the future and foreclosing participation in military blocks. 

    In our opinion, the Constitutional Court should have analyzed the Draft to prevent the opponents of the Ukraine’s way to NATO from engaging in “legal twisting,” speculation about a violation of Declaration principles, or any other damaging schemes in the future. However, by limiting its review to only formal procedural checking, the Court missed a significant opportunity to clear up these potential problems.

    The potential for problems did not go unnoticed. Judge Oleksandr Tupytskyi’s separate opinion warned that the Draft adoption would lead to a formal contradiction between two parts of the Preamble, and the legislature could not have accepted it without a national voting referendum, which could decide future participation in NATO.

    Possible Usurpation

    By voting for the Draft without a national referendum, the Parliament empowered itself with a new unconstitutional power. Since the Draft, through language in the Preamble, modifies the historical underpinnings behind adopting the Ukrainian Constitution, a “new” or updated vision was given for the People’s view of the nation and the future course of the State. As noted before, voting for such drastic proposals through a national referendum seems logical. Without this vote, Parliament can change the People’s vision whenever they wish. 

    In Judge Lytvynov’s opinion, the foundations of the Ukrainian constitutional system, enshrined in the Preamble, can be changed only by the People of Ukraine. The government’s attempt to act in another way may be a sign of usurpation of state power. In further support for a national referendum, Judge Oleksandr Kasminin mentioned that transformations proposed by the Draft would also affect the Section “General Principles.” These transformations could only be adopted after confirmation by an all-Ukrainian referendum. In Judge Gultai’s opinion, the new powers of the Parliament, the President, and the Cabinet of Ministers made by the Draft may lead to an imbalance of the mechanism of exercise of state power in violation of constitutional provisions.

    NATO Bases Ban

    Preamble problems aside, another critical question should be answered regarding the future of Ukrainian membership in NATO. Does the Draft preclude the possibility of having foreign military bases on Ukraine’s territory?

    Within the Constitution, there is a ban on any foreign military bases within Ukraine. However, there was a constitutional provision that allowed the Ukrainian Parliament to avoid the ban. By signing an international agreement, Parliament could permit foreign military formations to stay temporarily within Ukrainian territory. The paradox is that the Draft, which enshrines the Way to NATO within the Constitution, deleted Parliament’s power to avoid the constitutional ban on military bases.  

    As Judge Melnyk rightly noticed, logical questions arise in the absence of such power. Will excluding such provisions help to create the right conditions for the implementation of Ukraine’s way to NATO? Moreover, will it help in protecting the sovereignty, independence, and territorial integrity of Ukraine, especially in times of the armed aggression of the Russian Federation?

    Conclusion

    It is obvious, for now, that the Ukrainian way to NATO will not be fast, and the path is full of stumbling blocks. Given all the unsolved constitutional issues mentioned above, the Ukrainian government’s pushing the issue of NATO membership seems strange, irrational, and short-sighted. Ironically, the government could have addressed such issues before the war more easily. Now, however, any amendments and referendums are banned by Ukrainian law until the end of martial law.

    In our opinion, the Ukrainian President or MPs should ask the Constitutional Court how to solve such a problem and be prepared for a referendum shortly after the war ends.

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