SIMPLE TEMPLATE CREATION
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
1/39
JUDICIAL INDEPENDENCE DA
Impacts – Judicial Independence
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
2/39
NOTES ON THE DA
So this is another bad court disad. The concept is similar to that of a Federalism DA. Right now, the judiciary doesn’t have a lot of independence, but the plan overturns a ruling which revives its independence. This can be bad for a lot of reasons. A ton of them involve international modeling of our judicial system. The module in the 1NC is China, but the others range from everything from more country scenarios, to local things like corruption and the environment, to the farfetched, like the devolution of the Securities and
Exchange Commission and an increase in Military Tribunals.
In short this is a DA meant to catch the other team off guard, and then use the amendment counterplan as a sledgehammer to drive this stake into the coffin of their shitty courts aff.
Now… if the aff has done their research, they will IMPACT TURN THE SHIT out of this DA, but, you have enough impacts, and hopefully answers to most of their modeling scenarios, so have fun and sew the seeds of destruction and prove to that courts team why you don’t mess with the amendment counterplan and its shitty net benefits.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
3/39
JUDICIAL INDEPENDENCE 1NC 1/2
A. Judicial independence low now
Iowa Judicial Branch 20 09 http://www.judicial.state.ia.us/Public_Information
Americans want independent courts that are fair and impartial, accountable only to the law and the Constitution. Yet, these values are under attack. Around the nation there are forces working to undermine judicial independence, a principle that has served the people well for over two hundred years. Iowa's far-sighted constitutional merit selection process ensures that we have high caliber judges of utmost integrity, who are selected based upon their professional qualifications—not ideologies. Judicial independence ensures that our judges base their decisions on the law and the Constitution and nothing else. Ultimately, however, the preservation of our fair, impartial, and independent court system requires more than the integrity and fortitude of individual judges, it requires the fervent and steadfast support of the people.
B. Plan overturns precedent increasing judicial independence
Karlan, law professor @ Standford, ‘98
(Pamela S. Karlan, law professor @ Stanford “TWO CONCEPTS OF JUDICIAL INDEPENDENCE” www.usc.edu/dept/law/symposia/judicial/pdf/karlan.pdf)
Until this point, I have been discussing judicial independence from constraints that exist outside the judicial process. But the process itself constrains judges in a variety of ways. Subject-matter and personal jurisdiction rules, venue provisions, and doctrines like ripeness, mootness, and the case or controversy requirement all limit what judges can do. Most obviously, precedent exercises a constraining force. Precedent takes some potential outcomes completely off the table: when the law is clear, parties may not even litigate and this denies judges even a ready opportunity to consider particular issues. In other cases, the press of judicial business means that following precedent is the path of least resistance; it may be easier to claim that the instant case is "controlled" by some prior decision than to figure out from scratch what the right answer should be. Finally, the doctrine of stare decisis "compels" judges to follow precedents absent weighty justification; stare decisis really only matters when it constrains judges who affirmatively disagree with prior decisions. And yet there is little argument that Article III or stare decisis threaten judicial independence. Why? In part, perhaps, we take the most formal "structure" of all -- the allocation of judicial power under Article III or state constitutions -- as an exogenous definition of the sphere within which judicial action and judicial independence can operate. In this light "judicial" serves as a restrictive modifier of independence. Another possible answer is defini- tional. As I have already suggested, if one thinks of judicial independence as involving the autonomy of the judiciary from external control, rather than as consisting in the ability of individual judges to "conceiv[e] goals and policies of
[their] own and realiz[e] them," 49 then stare decisis is no threat at all. The judiciary as a corporate entity creates the precedents that then constrain its individual members. Indeed, Berlin's characterization of positive liberty as self-governance and adherence to "law" consisting of "the rules which reason prescribes" 50 may mean that an orderly judicial process is more "free" than a non-hierarchical one.
C. The Reformed China Judiciary Models The U.S.
Lee 05 (Tahirih V., Associate Professor of Law at Florida State University College of Law and J.D. from Yale Law School,
"Exporting Judicial Review from the United States to China" Columbia Journal of Asian Law, Spring/Fall, volume 152, issue 19,
Lexis)
Is the American model of judicial review transplantable to China? As top American judges call for the export of American judicial review and the topic of judicial review is widely debated in legal circles in China, this question demands thorough exploration by today's legal community. Deans at China's leading law schools also lecture and write on the subject, even though it represents a departure from their scholarly specialties. In October of 1997, the PRC's central government launched a program to reform the judiciary. n1 Since then, and particularly since 2001, when the [*153] Supreme People's Court took a bold step toward reviewing constitutional questions, Chinese judicial reform has been a hot topic in legal academia and, indeed, in the broader legal community.
A focus on the American model is not foremost in these Chinese discussions, but it does appear among frequent references to judicial review outside China, some of which explicitly discuss the United States. However, such a focus is important in light of assertions by
United States Supreme Court Justices Sandra Day O'Connor and Stephen Breyer that American-style judicial review can be and, indeed, should be transplanted anywhere. n2 The implication of O'Connor's and Breyer's arguments is that the United States' judicial review system should be the model for every other country's court system because, in some essential way, it is the most robust version of judicial review.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
4/39
JUDICIAL INDEPENDENCE 1NC 2/2
D. The judiciary could go either way.
IHT (International Herald Tribune) 11-28-2005. [A young judge tests China's legal system, p. www.iht.com/articles/2005/11/28/news/judge.php]
But within days, the Luoyang Middle Court's discipline committee contacted her. Henan Province officials had angrily complained that the ruling contained a serious political error. Faced with a conflict between national and provincial law, Li had declared the provincial law invalid. In doing so, she unwittingly made legal history, setting in motion a national debate about judicial independence in China's closed political system.
In many countries, a judge tossing out a lower-level law would scarcely merit attention. But in China, the government, not a court, is the final arbiter of law. What Li had considered judicial common sense, the People's Congress of Henan Province considered a judicial revolt. And their initial response was to try to crush it. Li, who had less than three years on the bench, feared her career might be finished.
E. Perception of an independent judiciary would destabilize the CCP.
Providence Journal 12-1-2005. [Rule of law in China? P. Factiva]
Ever since Deng Xiao-peng started reforming China's economy, three decades ago, but left the Communist Party in political control, China has had a fundamental contradiction: between its liberalized and, in many respects, capitalist economy, on the one hand, and on the other, the party-controlled state. Generally, the contradiction has been resolved in favor of the party, because
China has no independent judiciary. Most court decisions are subject to review, and can be overturned by the party; judges can be fired for rulings that offend party officials.
This placement of the party and its allies above the law has inevitably fueled massive corruption. And the lack of legal protections for property rights and investment have hurt China's economic development. Foreigners who acquire property in China, for example, are often puzzled when they cannot obtain a deed.
But Chinese courts may finally be gaining some independence. As described in Monday's New York Times, a case regarding the pricing of seeds in China's Henan province may have established a precedent that could challenge the Communist Party's grip on the country's courts, with far-reaching effects.
Instead of acquiescing meekly in the decision of party officials, who said that a young judge's ruling two years ago was wrong, the judge, Li Hui-juan, appealed to legal reformers, scholars and lawyers across China, and they have rallied to her cause. Her ruling, in which she resolved a conflict between provincial and national law in favor of the latter, has now become a test case for a more autonomous legal system.
As China becomes less isolated and more Chinese people are exposed to Western law and justice, the prerogatives of the
Communist Party become harder to sustain. The country has many idealistic legal professionals, eager to see China adopt a judicial system more in line with international standards. For its part, the party is keen to keep things as they are. An independent judiciary would surely threaten the party, by establishing legal rights for ordinary Chinese citizens -- rights that they currently lack.
Nuclear war
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
5/39
UNIQUENESS – NO INDEPENDENCE
Judicial independence low now
Pappas, President Michigan bar 5/9
(Edward Pappas, “Judicial independence in crisis, part one” Michigan bar journal May 2009
Today , there is an ever-increasing con- cern that the principle of an independent, fair, and impartial judiciary is being threatened and undermined in both federal and state courts . In fact, Margaret H. Marshall chief justice of the Supreme Court of Massa chusetts, goes so far as to say that our “state courts are in crisis.” She offers three basic reasons for the crisis:
“inadequate funding an inability to provide adequate access fo all, and the politicization of state judiciaries. This column will address the irst reason— inadequate funding for the judiciary—which applies to both state and federal courts. Nex month’s column will address the other rea sons cited by Chief Justice Marshall.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
6/39
LINK – OVERRULE
Overturning precedent makes the court truly independent
The Washington Times ‘5
(The Washington Times “Supreme Court as a rigged game” October 2, 2005 Lexis)
In his recent Senate testimony, Judge John Roberts Enhanced Coverage Linking John Roberts -Search using: * Biographies
Plus News * News, Most Recent 60 Days addressed the judicial doctrine of "stare decisis." This Latin term means "to stand by things decided." It also means cases decided by the court enjoy a special cachet. The court doesn't like to overturn its earlier decisions, except when ... well, except when it decides it needs to overturn one of them. One characteristic of a "conservative" judge is respect for precedent, even if the judge believes a case was incorrectly decided. Judge Roberts' regard for stare decisis is undoubtedly genuine, but he probably emphasized it to reassure liberal senators he won't try to overturn their hallowed Roe v.
Wade. (Liberals love stare decisis because it protects court-dictated "law" they like but which they know has no chance of being congressionally enacted.) Judge Roberts has previously said Roe v. Wade was decided on weak grounds. But he says it is
"settled law" and reversing it would be disruptive. Ditto for other radical cases. The "cure" of reversal is worse than the "disease" of enduring a wrongly decided precedent. This reluctance rarely restrains activist justices. They have no qualms about overturning precedent, realigning laws to their social and political vision. But conservatives won't do so, even if a case was decided on flawed premises, foreign laws or "emanations and penumbras." In other words, the game is rigged. Liberals can impose their agenda judicially because they don't mind roiling the social and political waters. But conservatives rarely correct liberals' radical activism. Stare decisis makes the court a one-way ratchet. In "How Stare Decisis Subverts the Law" (June 10,
2000), John Roland - noted author and Founder of the Constitution Society - wrote: "Stare decisis tends to disfavor legal argument that precedents were wrongly decided, especially if they are precedents established at a higher level..." Mr. Roland notes opinions are often treated as law, "even though only the order and findings have the actual force of law, and only in that case." An opinion is only "commentary." "A poorly worded opinion can define a set of legal positions that exceed the bounds of the underlying constitutional enactments, and become the basis for future precedents, as though they were constitutional enactments. .. ." Judge Roberts seems to be a man of principle and exceptional intelligence, but his own words indicate he probably won't lead the court to correct its radical rulings. These would include: * A "right" to abortion on demand. * Blocking state or federal attempts to outlaw "partial-birth abortion." * Affirmative action refashioned as racial quotas. * Banning expressions of faith in public schools and the public square. * A national right to sodomy. * Recasting eminent domain to include private property "takings" for commercial instead of only for public use. After decades of liberal activist courts, stare decisis will prevent a conservative court from reversing past rulings because that might prove disruptive. Thus conservatives are ensnared in efforts to defeat liberalism in the courts. Conservatives have been winning elections for decades. Seven of the last
10 presidential elections produced Republican presidents. Republicans won the Congress in 1994, ending 40 years of Democratic control. Despite these conservative successes, the Supreme Court has kept the liberal agenda alive. One reason is "moderate" justices who go liberal after joining the court. But the true villain, as we can now see, is stare decisis. It works as follows: (1) A liberal court makes a society-shaking ruling like Roe v. Wade. (2) Years pass with the radical ruling in place. (3) The court finally becomes conservative enough to reverse the ruling. (4) When a case arises by which the court could reverse, it defers to stare decisis. John Roberts Enhanced Coverage Linking John Roberts -Search using: * Biographies Plus News * News,
Most Recent 60 Days sounds conservative, but if his testimony is true - and we have no reason to doubt it - he will not undo past radical rulings. Columnist Charles Krauthammer says he expects a Roberts court to move "slightly leftward" from its present position. We are totally stuck. What can be done? Mr. Roland believes the court must no longer base decisions on precedents that conflict with the Constitution: i.e., "One who takes an oath to uphold the written Constitution is bound to ignore precedents in conflict with it, and to rest decisions strictly on propositions that are logically derived from constitutional enactments, considering precedents only where they sharpen ambiguities in the language of the written enactments. "To treat precedents as superior to constitutional enactments is to introduce contradictions into the law. ... In any system of logical propositions, acceptance of a single contradiction accepts all contradictions, rendering every proposition logically undecidable. Contrary to the view of some judges, the law must be logical, or it is not law [emphasis added]," Mr. Roland says. Mr. Roland is a constitutional expert. I defer to his analysis, but I doubt his prescription is practical. Can the court can be repaired by "sounder" justices?
Maybe in the long term. But conservatives must realize the cause of a problem cannot also be the solution. Ensnared by its own customs and procedures, the Supreme Court cannot repair itself. Instead, the people must elect a Congress that will rein in the court . This will require formidable will by voters and their representatives. Constitutional remedies are available, but the court's liberal apologists spare no effort to prevent their use. House Majority Leader Tom DeLay was viciously attacked when he suggested impeaching judges who rule counter to the Constitution. Even Supreme Court justices spoke out, breaking a long tradition of not interfering in congressional debates . Members of Congress who proposed restricting the Supreme Court's purview - as authorized in Article III, Section 2 - are called "enemies of judicial independence " (though they merely oppose
"judicial supremacy").
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
7/39
IMPACTS – CHINA MODELS
China Is Starting To Adopt American Judicial Models
Lee 05 (Tahirih V., Associate Professor of Law at Florida State University College of Law and J.D. from Yale Law School,
"Exporting Judicial Review from the United States to China" Columbia Journal of Asian Law, Spring/Fall, volume 152, issue 19,
Lexis)
Despite the complexity of the problem and the vast differences between the judiciaries in China and the United States, the question of transplantability is not entirely absurd. The situation in China allows for cautious hope that some movement toward constitutional and administrative review is possible. The current discussions in the legal literature of judicial review ([SEE CHINESE CHARACTERS
IN ORIGINAL], sifa shencha), judicial interpretation ([SEE CHINESE CHARACTERS IN ORIGINAL], sifa jieshi), and judicial independence ([SEE CHINESE CHARACTERS IN ORIGINAL]) [SEE CHINESE CHARACTERS IN ORIGINAL], fayuan de sifa duli) have been much greater than in any other period of recent memory. The references to judicial review outside of China seemed almost obligatory in every piece, and one or two even come close to examining the workability of the American and European models.
While interviewing Chinese law scholars in China in the spring of 2005, I was told that arguments about this subject are still too sensitive to be published in the People's Republic of China ("PRC"). Yet this politically sensitive environment is the context within which so much change has happened in China.
China Models American-Style Judicial Review – Hong Kong Proves
Lee 05 (Tahirih V., Associate Professor of Law at Florida State University College of Law and J.D. from Yale Law School,
"Exporting Judicial Review from the United States to China" Columbia Journal of Asian Law, Spring/Fall, volume 152, issue 19,
Lexis)
The introduction of American-style judicial review in January of 1999 quickly started to take root. The expansion of the scope of judicial [*176] review wrought by Ng Ka Ling prompted a dramatic increase in the number of constitutional cases filed in Hong
Kong. Until then, the only constitutional issues heard in the SAR courts were in the first instance trial of the Oriental Press Group's free speech case n86 and several immigration cases. n87 Thereafter, litigants invoked the Basic Law in their arguments not only concerning immigration and the two appellate hearings of the Oriental Press Group's case, but also regarding voting rights issues, n88 a property issue of constitutional magnitude, n89 and criminal law issues. n90
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
8/39
IMPACTS – JUDICIAL INDEPENDENCE
DESTABILIZATION
Independent judiciary threatens CCP legitimacy.
Newsweek International, 2-192007 ,http://www.msnbc.msn.com/id/17081610/site/newsweek/
But in reality, legal reform has lagged far behind changes in China's economy. Though education levels are rising, for example, many judges, lawyers and prosecutors remain poorly trained. Cases are still often decided by bribes and political connections. And the party shows no sign of ceding its control—almost all judges are party members and required to obey its orders. Beijing still fears that an independent judiciary could undermine the party's monopoly on power.
CCP fear of judicial independence will be destabilzing.
Randall Peerenboom , Acting Professor of Law, University of California, Los Angeles, J.D., Ph.D., 2001 . [19 Berkeley J. Int'l L.
161, Globalization, Path Dependency and the Limits of Law: Administrative Law Reform and Rule of Law in the People's
Republic of China, p. lexis]
Second, the reluctance of senior leaders to unleash political and legal reforms that could threaten the Party has resulted in tight limits on civil society, an attempt to co-opt emerging interest groups through the establishment of clientelist and corporatist relationships and efforts to regulate them through registration requirements. It has also led to limited transparency, with restricted public participation in the lawmaking and rulemaking processes and the refusal to enact a freedom of information law. Perhaps most important, senior leaders
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
9/39
AT: KEY TO CHINESE GROWTH
Independence not key to Chinese growth
Newsweek International, 2-192007 ,http://www.msnbc.msn.com/id/17081610/site/newsweek/
But other pundits argue that China may well keep on defying expectations by continuing to grow without major legal reform. They point out that the government has proven deft at maintaining social order and encouraging other trends that could keep the economy humming. "Economic growth here depends [more] on cheap labor and a stable political environment, [and less on] the improvement of the legal system," says Pan Wei, a professor at Beijing University's law school. "And political determination is also very important." Moreover, the sheer size of China's economy is likely to continue luring local and foreign investors, regardless of the legal environment. "China's a special case because there is still great faith in the Chinese market and its potential," says Michael Dardzinski, a Beijing-based corporate lawyer. "The rule of law is just one issue among many others that is weighed against the long-term potential to make money." Lawyers and academics may continue to argue about whether reform is necessary and how to make it happen. In the meantime, others are simply taking care of business—any way they can.
Firms adapted to Other Pro-Busines RUles.
Newsweek International , 2-192007 ,http://www.msnbc.msn.com/id/17081610/site/newsweek/
In place of a proper legal system, however, other mechanisms have emerged to play its role. Large foreign and domestic firms, for example, have learned to resolve or avoid contract disputes by exploiting the country's hypercompetitive business environment. If a supplier fails to deliver on time, they simply threaten to give their business to someone else. And China does have rules, which are largely pro-business, though they are enforced differently than in the West. For example, the government recently imposed a new regulation requiring local officials to grant business licenses faster, leaving bureaucrats less time to demand bribes. "People from legal societies always underestimate the power to affect change through administrative, rather than legal structures," said Arthur Kroeber, managing director of the economic research firm Dragonomics in Beijing.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
10/39
COURTS MODELED GENERIC
Judicial independence modeled internationally
CQ Congressional Testimony February 14, 20 07 http://web.lexisnexis.com/congcomp/document?_m=93bf4600263b68f5929e9f38760a871b&_docnum=2&wchp=dGLbVzbzSkSA&_md5=a6af1bd98c460fa03bc2c67caffb8e5b
This high-pitched rhetoric should stop, for the sake of our judges and the independence of the Judiciary. Judicial fairness and independence are essential if we are to maintain our freedoms. Our independent Judiciary is a model for the rest of the world and a great source of our national strength and resilience. During the last few years it has been the courts that have acted to protect our liberties and our Constitution. We ought to be protecting them, physically and institutionally.
US independent judiciary is modeled globally
Federal News Service February 14 , 2007 http://web.lexisnexis.com/congcomp/document?_m=11c86c4e67172c71035c6622de221656&_docnum=1&wchp=dGLbVzbzSkSA&_md5=55d02983234fc310c6e62e480902c8f7
Our independent judiciary is the envy of the world, and we have to take care to protect that. I've told the story a number of times; shortly after the Soviet Union broke up, a group of parliamentarians from Russia were in my office, and they were asking about how the judicial system works. And one of them said, "Is it true that in America people sometimes sue the state?" I said, "It happens all the time." And they said, "Is it also true that sometimes the state loses?" I said, "Trust me, it happens all the time." And they said, "Do you then replace the judge when that happens?" And at that point I think they finally understood the independent judiciary.
US courts are an international model
The Economist Feb 26th 20 09
BACK in 1996, William Rehnquist, then chief justice of the Supreme Court, called an independent judiciary “one of the crown jewels of our system of government”. He considered America’s courts a model for other countries. Would-be foreign imitators might, however, consider Caperton v Massey , a case that the Supreme Court will hear on March 3rd. In 2004 Don Blankenship, the chief executive of Massey Energy, spent $3m to help elect Brent Benjamin to West Virginia’s Supreme Court. In 2007 Mr
Benjamin voted to overturn a $50m judgment against Massey.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
11/39
SURVIVAL MODULE
Checking judicial supremacy and ensuring public involvement is necessary for planetary survival
Kenneth M. Dolbeare , Prof. of Political Econ. @ Evergreen, Linda Medcalf , Prof. of Poli Sci @ Evergreen , ’87 [ The Case Against the Constitution , “Class and Pluralism in America: the Constitution Reconsidered,” p. 138-140
Where have all the voters gone? They have caught on that the system is rigged. Popular majorities' efforts to change either the distribution of wealth and power or the basic policies that seem necessary to maintain that structure of wealth and power simply don't seem possible. To be sure, decades of accomplishment by the ideological defenders and celebrants of this system have encouraged
Americans to accept it as "democracy." Americans learn to want or, more likely, consider inevitable whatever is produced, to settle for various diversionary satisfactions, and/or to fear change and even suspect that those who do seek change must have self-interested and unpatriotic motives. These are ideological rationalizations for the central fact that the Hamiltonian Constitution excludes people from directly affecting important public policy outcomes.
This is not to say that there is no history of popular impact on government, or that the Supreme Court is merely a tool of the corporations. Either such caricature of our argument would be silly. What is important is that popular impact, such as it is, can be made effective only in very limited ways through the electoral process. For the most part, it must come through disruptionriots, massive strikes, demonstrations involving the threat of violence, and other attacks on the social order itself. What does it mean for a popular government that its people are politically effective only when they threaten to destroy it?
The Supreme Court has made many decisions, particularly in the middle years of this century, that advanced basic democratic rights.
But that was a result of judicial appointments, not an attribute of the institution. The Supreme Court has, and can, and may well again, make precisely the opposite kinds of decisions. What does it mean for a popular government that its basic policies can be set by a transitory majority drawn from a body of nine life-appointed lawyers?
What we are saying is that the Framers' two major goals are threatened today by the success with which Hamilton and his followers implemented those goals. We do not have a stable political economic system, and we do not have the capacity to make the choices necessary to assure a strong and successful American political economy.
Our political system works by fits and starts. It is neither responsive nor accountable and it lacks solid grounding in the body of its people. It sits and waits for the next crisis. Unfortunately, to solve that crisis, it may have to transform itself into something that will be very difficult to rationalize as "democracy."
We have not addressed the great issues of nuclear war, planetary survival , or even American economic viability in a drastically changing world economy-not because the people don't care, but because there is no linkage between the people's felt needs and their policymakers. No such basic policies can be implemented, even if policymakers were to concur, without the sustained support of some major portion of the people.
To solve our problems, or merely to fulfill the Framers' goals in the wholly different conditions of our times, we will have to come to terms with Hamilton's Constitution in a realistic manner. Perhaps the best way to honor the Framers' work is not to join in obfuscating celebrations, but to act as they did under like circumstances.
We might start by critically exploring the ways in which today's analogue of the Articles of Confederation is defective in achieving goals that are necessary and desirable for the future. Obviously, like the Framers, we would have to address basic principles of social order and purpose-if we have not completely forgotten how to do so. (That we have forgotten is strongly suggested by the nature of the proposals currently offered for constitutional "reform. 1136 )
Curing the defects of Hamilton's Constitution may not be possible, for many reasons. It may be that patterns of material advantage, or the depth of the problems we face, or the sheer size of the country, make it practically impossible. Or our situation may be even worse: perhaps generations of structural deflection-of elites as well as of the general public---from considering the Constitution in a realistic manner has made it impossible for us to do so now. Decades of cultural lowering of the criteria of democracy may have made it impossible for us to recapture its fuller definition and potential.
If there is a route out of our crisis, it lies in deliberately reversing Hamilton's strategy . That is, we must seek to re-engage the people in their government, and particularly in ways that enable them to have direct impact on the substance of important public policies.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
12/39
ENVIRONMENT MODUEL
Curbing supremacy the court is critical to long term environmental protection
Noah Sachs , Lectuerer of Law @ Harvard, ‘5 [Roberts and environmental law, http://www.law.harvard.edu/news/2005/08/19_sachs.php]
Supreme Court nominee Judge John G. Roberts Jr. hasn't generated a lengthy paper trail revealing his views on environmental law, but he's left the equivalent of a few Post-It Notes. Scrutinizing his handful of opinions and articles, environmental groups are getting nervous about his potential impact on environmental law, especially given his long career at the center of the Republican legal establishment. If confirmed, Mr. Roberts could tip the balance on a closely divided court in cases involving the Clean Air Act , the
Endangered Species Act, control over private property and other hot-button issues. For conservatives, a Roberts confirmation could be the crowning achievement in a long battle to weaken environmental regulations. As an attorney, Mr. Roberts often went head-to-head with environmentalists. Representing the National Mining Association, he defended the practice of blasting off mountain tops for coal mining in West Virginia in a case that was decided in 2001. As acting solicitor general, he successfully argued before the Supreme
Court in 1990 that an environmental group did not have "standing" to challenge government plans to open vast federal lands to mining and other activities. Standing, a procedural doctrine that examines whether a plaintiff has suffered sufficient injury to gain access to the courthouse, is often the key issue in a case for environmental groups. Decisions on who gets in determine what gets heard, and dismissal of a case on standing means that environmentalists' substantive arguments are never considered by the court. Of course, it's tricky to glean a nominee's personal views from arguments he made as an advocate. In fact, as an attorney, Mr. Roberts took at least one "pro-environment" case - representing the Tahoe Regional Planning Association in 2002 to defend its temporary moratorium on development near Lake Tahoe. Mr. Roberts' own articles (there aren't many) are more revealing. In a brief 1993 law review article,
Mr. Roberts praised an opinion by Justice Antonin Scalia that denied standing to environmentalists advocating for endangered species situated overseas. Mr. Roberts implicitly disagreed with a dissent signed by Justice Sandra Day O'Connor that asserted that the majority was subjecting environmental plaintiffs to unusually high barriers to standing. What really makes environmentalists shake in their hiking boots is Mr. Roberts' controversial 2003 opinion questioning federal power to protect endangered species. In that case,
Rancho Viejo LLC v. Norton, a California real estate developer challenged a ruling by the U.S. Fish and Wildlife Service that required certain construction techniques to protect the arroyo toad, an endangered species known to live only in California. Three judges on the
U.S. Court of Appeals for the District of Columbia Circuit ruled against the developer. Mr. Roberts voted to rehear the case on the grounds that the Endangered Species Act, passed under Congress' authority to regulate interstate commerce, could not be used to protect a "hapless toad that, for reasons of its own, lives its entire life" in only one state. This focus on the terrain-limited toad ignored the fact that the construction activities being regulated did have a substantial impact on interstate commerce. Luckily for the toad, the full D.C. Circuit voted not to rehear the case. Mr. Roberts' opinion in Rancho Viejo is a red flag for the big green organizations such as the Sierra Club. Mr. Roberts was propounding a narrow interpretation of the federal commerce power - far narrower than prior
Supreme Court decisions required. The federal commerce power is the foundation of modern environmental law, underpinning the
Endangered Species Act and most major environmental legislation. While Ms. O'Connor largely supported federal authority to protect the environment through its commerce power, Mr. Roberts, her potential successor, could begin to erode this critical constitutional foundation of environmental law. The larger issue here is that Mr. Roberts has built his career in an intellectual milieu hostile to environmental regulation. He has played leading roles in the White House of Ronald Reagan, the Justice Department of President
George H.W. Bush and conservative organizations such as the National Republican Lawyers Association and the National Legal
Center for the Public Interest, a business-oriented anti-regulatory group. Yes, Mr. Roberts will look at the merits of each case, but gutlevel inclinations matter, and we can guess which way he leans when it comes to environmental regulation. Environmental law evolves slowly, but Mr. Roberts, who could serve four decades on the high court, may have plenty of time to make his mark. There's reason to be concerned about what his potential tenure on the court could mean for the environment.
Environmental destruction ends all earth-life
Tonn 7 – Prof PolSci, Tennessee (Bruce, Futures sustainability, Futures 39, ScienceDirect, AG)
The first principle is the most important because earth-life is needed to support earthlife. Ecosystems are composed of countless species that are mutually dependent upon each other for nutrients directly as food or as by-products of earth-life (e.g., as carbon dioxide and oxygen). If the biodiversity of an ecosystem is substantially compromised, then the entire system could collapse due to destructive negative nutrient cycle feedback effects. If enough ecosystems collapse worldwide, then the cascading impact on global nutrient cycles could lead to catastrophic species extinction. Thus, to ensure the survival of earth-life into the distant future the earth’s biodiversity must be protected.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
13/39
EXT – JUDICIARY DESTROYS ENVIRONMENT
Judicial supremacy is the deciding cause of environmental regulation rollback
Doug Kendal et. al ., Founder and Executive Director @ Community Rights Counsel, ‘1 [NRDC paper, “Hostile Environment: How
Activist Judges Threaten Our Air, War, and Land,” http://www.nrdc.org/legislation/hostile/hostile.pdf]
These protections now face a grave challenge in an unlikely venue: our nation’s federal courts. A group of highly ideological and activist sitting judges are already threatening the very core of environmental law. New appointees to the bench could transform this threat into a death sentence for many environmental protections. In the last decade, judges have imposed a gauntlet of new hurdles in the path of environmental regulators, slammed the courthouse doors in the face of citizens seeking to protect the environment, and sketched the outline of a jurisprudence of “economic liberties” under the Takings and Commerce Clauses of the Constitution that would frustrate or repeal most federal environmental statutes. These judges—most of them appointed to the bench by Presidents
Ronald Reagan and George H. W. Bush— are engaging in anti-environmental judicial activism . They read into the Constitution powers of judicial oversight that courts have never previously exercised. They ignore statutory language and intent, substituting instead their own policy preferences. Although their opinions sometimes pay lip service to the benefits of environmental protections, their activist ideology leads them to invalidate these safeguards. They do this despite the widespread support our environmental laws enjoy among our elected representatives and the American people.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
14/39
SEC MODULE 1/2
A. Overriding precedent disintegrates minimalism – opens the doors to fundamentalism
Sunstein ‘5 (Cass Sunstein, Felix Frankfurter Professor of Law, Harvard Law School, Radicals in Robes, p. 28-9)
Minimalists believe that a free society makes it possible for people to agree when agreement is necessary, and unnecessary for people to agree when agreement is impossible. For minimalists, constitutional law consists of a series of incompletely theorized agreements in which judges accept a certain approach to free speech, or equality, or religious freedom, without necessarily agreeing on the deepest foundations of that approach. Minimalists celebrate the system of precedent in this spirit. Judges may not agree with how previous judges have ruled, but they can agree to respect those rulings—partly because respect for precedent promotes stability, and partly because such respect makes it unnecessary for judges to fight over the most fundamental questions whenever a new problem arises.
For example, some liberal judges believe that affirmative action programs should almost always be upheld, and some conservative judges believe that such programs should almost always be struck down. But if judges respect precedent, they will not simply follow their own judgments; they must pay heed to what others have said before them. Many fundamentalists will not much hesitate to reject precedents that they believe to be wrong. Minimalists are far more cautious about undoing the fabric of existing law.
B. This destroys the SEC
Cass Sunstein , (Felix Frankfurter Professor of Law, Harvard Law School) 2005 , “Why We Must Strive for Balance,” posted to http://www.nopc.info/forum/showthread.php?t=14139
Ever since the election of President Ronald Reagan, American conservatives have been sharply divided about what was wrong with the liberal activism of the Earl Warren court era of the 1950s and '60s. The division has led to two radically different views about the proper role of the U.S. Supreme Court in American life. / The first view reflects the principled conservatism represented by Justice
Felix Frankfurter, the great conservative on the Warren court. Frankfurter thought that the Supreme Court should respect the decisions of elected officials. He despised the court's willingness to enter what he called the “political thicket.” / Frankfurter was a judicial minimalist, in the sense that he wanted the court to proceed in small, incremental steps. To minimalists, Roe vs. Wade symbolizes judicial hubris; they do not want to create new rights or to expand on the right to privacy. But minimalists disapprove of right-wing judicial activism no less than they disapprove of its left-wing sibling.
They are reluctant to use the Constitution to strike down affirmative action programs, gun control laws, environmental regulation or campaign finance reform. They think that questions of this kind should be resolved democratically, not by the judiciary. / The second camp embodies the brand of conservatism once represented by Robert Bork and now by Antonin Scalia and Clarence Thomas. Conservatives of this kind reject minimalism in favor of a kind of fundamentalism, in the sense that they believe that the Supreme Court should discover and enforce the “original understanding”; of the
Constitution. In their view, liberal activists have failed to pay attention to the Constitution itself. The real question is what the text, read in light of its history, asks courts to do. / Fundamentalists think that radical steps are necessary to restore what they now call the
Lost Constitution or the Constitution in Exile. They are perfectly willing to strike down affirmative action programs, gun control legislation, environmental regulations, restrictions on commercial advertising, campaign finance laws and much more. / Justice Sandra
Day O'Connor was the Supreme Court's leading minimalist; she was Frankfurter's kind of conservative. She prized stability. She was reluctant to overturn precedent in the name of the original understanding of the Constitution. / In conservative circles, fundamentalism has been on the ascendancy and minimalism in retreat. Many conservatives see O'Connor as a kind of infidel. When President Bush speaks in favor of “strict construction”; he is widely taken to be endorsing fundamentalism. Several of his appointees are committed fundamentalists. And in the abstract, fundamentalism does seem to be both principled and appealing. But it also has serious problems.
/ Many fundamentalists read the Constitution as if it embodies the views of the most extreme wing of the Republican Party. / They believe that the Constitution reflects their own views on the great issues of the day--abortion, gun control, affirmative action, campaign finance reform, property rights, separation of church and state, and much more. What a happy coincidence! / Too much of the time, fundamentalists do not consult history at all, and the idea of the “original understanding” is a complete sham. Consider two examples. Constitutional history suggests that affirmative action is perfectly acceptable. (The framers of the 14th Amendment actually engaged in race-conscious efforts to help the newly freed slaves.) / History also suggests that the framers meant to give little protection to property owners against regulations that diminished the value of their land. All too conveniently, many fundamentalists disregard history when it leads to results that they dislike. / But suppose that fundamentalists were faithful to the original understanding. Even so, their approach wouldn't be much better. As we live them, our constitutional rights are a product of over two centuries of practice; they are not frozen in the 18th Century. Fundamentalists are evasive about the real consequences of their theory, and for good reason. / If we decided to return to the original understanding, the national government would be permitted to discriminate on the basis of both race and sex. Congress could certainly engage in racial segregation. The states could probably segregate the races as well. They could certainly ban women from practicing law or medicine. The right of privacy would be abolished. States might well be permitted to establish official religions (and Justice Thomas has explicitly argued that they can). If we embraced the original understanding, the Federal Reserve Board, the U.S. Securities and Exchange Commission and the National
Labor Relations Board might well be in constitutional trouble. / In short, fundamentalists want to embark on a project of constitutional revisionism that would make the Warren court look pitifully timid.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
15/39
SEC MODULE 2/2
C. Tilts the economy into another Great Depression
Amadeo ‘7
(Kimberly Amadeo, Market Research, the Arizona Republic, “the U.S. Securities and Exchange Commission,” http://useconomy.about.com/od /governmentagencies/p/SEC.htm)
The SEC increases transparency and trust in the U.S. stock market, which makes it the most sophisticated and popular stock exchange in the world . This attracts much business to U.S. financial institutions, including banks, investment banks, and legal firms. /
It also makes it easier for companies to “go public”, when they have grown large enough to need to sell stock to finance their next phase of development. The ease of going public helps U.S. companies grow larger and faster than those of other countries with less developed markets. / How the SEC Affects You: / The SEC affects you by making it safer for you to buy stocks, bonds and mutual funds. In addition, by helping the U.S. economy, the SEC contributes to the high standard of living we enjoy today. Not to sound like a commercial, but thanks to the SEC, there is little chance that we will again experience a Great Depression.
D. Global nuclear war
Walter Russell Mead , Henry A. Kissinger Senior Fellow for U.S. Foreign Policy, 2-409 , “Only Makes You Stronger,” http://www.tnr.com/politics/story.html?id=571cbbb9-2887-4d81-8542-92e83915f5f8&p=2
If financial crises have been a normal part of life during the 300-year rise of the liberal capitalist system under the Anglophone powers, so has war. The wars of the League of Augsburg and the Spanish Succession; the Seven Years War; the American
Revolution; the Napoleonic Wars; the two World Wars; the cold war: The list of wars is almost as long as the list of financial crises.
Bad economic times can breed wars. Europe was a pretty peaceful place in 1928, but the Depression poisoned German public opinion and helped bring Adolf Hitler to power. If the current crisis turns into a depression, what rough beasts might start slouching toward
Moscow, Karachi, Beijing, or New Delhi to be born? The United States may not, yet, decline, but, if we can't get the world economy back on track, we may still have to fight.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
16/39
SOP MODULE
Judicial independence destroys constitutionality
Thomas Jipping , (Director, Center for Law & Democracy; Senior Fellow in Legal Studies) 2001 , Concerned Women for America;
M.A., SUNY-Buffalo, 2001, “Legislating from the Bench,” 43 S. Tex. L. Rev. 141, l/n)
In judicial restraint, with a more modest and normative view of judicial power, the law is the driving force and the validity of judicial
[*146] decisions depends not on their simply being made but whether they properly interpret and apply existing law . In this view, judicial independence is a means to the end of properly exercising judicial power. It assumes constitutional structural protection and focuses instead on independence from internal political influence or pressure so the judge may "get it right." / The title of this Article can now be better understood. The proper model for exercising judicial power is judicial restraint. In this model, judicial independence means independence from primarily internal political influences so that judges follow the law. Legislating from the bench, another name for judicial activism, destroys the proper end of judging and, therefore, is the greatest threat to judicial independence, the means to that proper end. / III. The Traditional View / Against this backdrop, we may better examine the positions of America's founders and contemporary advocates on judicial power and independence. By opening their book with Hamilton's "complete independence of the courts" axiom, Citizens for
Independent Courts ("CIC") falsely suggests that America's founders took the expansive, activist view.
America's founders instead believed that judicial restraint was the proper model for judicial power, and viewed judicial independence in that light. / By their focus on the "complete independence of the courts," America's founders could not have meant freedom only from external limitations on the judiciary. The Constitution provides for just two institutional or structural protections. Federal judges serve "during good Behaviour," and Congress cannot diminish their compensation. n26 At the same time, there exists a broad range of external controls. / First, the Constitution created only the Supreme Court; Congress creates all "inferior Courts," n27 "a power that must necessarily include the power to abolish them." n28 Second, the Constitution grants Congress the power to regulate the appellate jurisdiction of the federal courts. n29 Third, Congress regulates the budget of the federal courts: while prohibited from diminishing judicial compensation, [*147] Congress may choose not to increase it. n30 Fourth, the judiciary is not self-generating: the president decides whether and whom to nominate and, with the Senate's consent, to appoint to vacant positions. n31 Fifth,
Congress can impeach federal judges for "high Crimes and Misdemeanors." n32 Sixth, administration of the judicial branch was located in the executive branch until
1939. n33 / America's founders, then, apparently believed that prohibiting a diminution in compensation and providing for unlimited terms was sufficient to protect the judiciary's institutional, or external, independence. n34 Their focus was instead on the judiciary's decisional, [*148] or internal, independence.
This decisional independence "is the sine qua non of the judicial role in our system of government." n35 / Two elements are particularly important to understanding their view. First, the judiciary is part of the federal government to which is delegated, in James Madison's words, only "few and defined" powers. n36 Second, these few and defined government powers are further separated among three branches . Although each can check and balance the others, they do not share categories of power. These two elements, particularly the separation of powers, were "adopted by the Framers to ensure the protection of
"our fundamental liberties.'" n37 / America's founders "viewed the principle of separation of powers as the absolutely central guarantee of a just Government ." n38 The Constitution's grant of power to the judiciary is neither unlimited nor general, but limited and specific. The
Constitution grants the judiciary only "judicial Power." n39 By separately granting "all legislative Powers" to the Congress n40 and the "executive Power" to the president, n41 the Constitution deprives the judiciary of these categories of power. Taking the Constitution on its own terms, then, exercising "legislative power"
(legislating from the bench) exceeds the judiciary's authority. / Examining Hamilton's own essay more closely helps determine from what he thought the courts should be completely independent. He wrote: "For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers.'" n42
Far from using the notion of judicial independence as a shield for allowing or justifying judicial legislating, Hamilton does the opposite, using the notion of independence as a way of excluding legislative power from the judicial function entirely. / [*149] Similarly, James Madison stressed that "no political truth is certainly of greater intrinsic value" than the separation of powers. n43 Earlier, the Massachusetts Constitution of 1780 stated as a condition of this being "a government of laws, and not of men" that "the judicial shall never exercise the legislative and executive power, or either of them." n44 The principle goes back even further than that.
Professor Raoul Berger notes that "from Francis Bacon on, the function of a judge has been to interpret, not make, law." n45 / America's founders thus had a modest, even narrow, view of judicial power and believed it essential that the judiciary be independent from exercising other forms of power, such as legislating or making law.
It was in this sense they could say the judiciary was the "weakest" and "least dangerous" branch. n46 Judges' decisional independence was not decisional license, free from limitation, but decisional integrity, guaranteed by observing such limitation. "But judicial independence is only a means to an end; it is the mechanism chosen by the Founders to ensure the rule of law." n47 / As Hamilton explained: "The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body." n48 Judgment discerns the sense that already exists; will creates a new sense of the judge's making. The Supreme Court in Marbury v. Madison famously identified the duty of the judiciary to "say what the law is." n49 The law is already something; it is not for judges to say what it should be. / The judiciary has neither the purse, like the legislative branch, nor the sword, like the executive branch. Instead, its authority "has depended on the perceived legitimacy of the courts and their role in [*150] our system of government." n50 The traditional view posits that central to this legitimacy is "accountability to the law. Indeed, it is that accountability that justifies judicial independence." n51
Breakdown of SOP leads to foreign conflicts.
Paul , prof of law UConn, 19 98
(Joel R. Paul, Prof of law @ UConn, July 1998, “The Geopolitical Constitution: Executive Expediency and Executive Agreements”
86 Calif. L. Rev. 671)
The Constitution "diffuses power...to secure liberty." n27 Constitutional checks and balances create resistance to the exercise of power. n28 [*679] So long as constitutional authority over foreign affairs remained divided between the executive and Congress, neither branch was able to commit the nation abroad without a popular consensus. n29 These institutional obstacles are not merely quaint vestiges of an earlier era of relative isolationism. They serve the normative value of discouraging foreign adventures to which the nation is not fully committed. The discourse of executive expediency undermined this constitutional structure. n30 Specifically, the expansion of executive power allowed Congress to avoid public accountability for U.S. foreign policy, facilitated more frequent foreign interventions, undermined the coherence of our foreign policy, and exposed foreign policy-making to "capture" by foreign governments.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
17/39
CORRUPTION MODUEL
A. supremacy without accountability results in corruption
Maria Dakolias , counsel, World Bank Legal Dept., and Kim Thachuk , judicial reform advisor, Spring 2k. [18 Wis. Int'l L.J. 353, The
Problem of Eradicating Corruption from the Judiciary, p lexis]
Despite the fact that each branch scrutinizes the others' activities, often there is little real understanding of what the judiciary actually does in terms of specific actions.
This misunderstanding occurs because the concept of judicial independence has often gone so far as to be an impediment to open communication, even if it is only for the purpose of constructive criticism. Indeed, it is often the 'other-worldly' nature of judiciaries that shrouds them in mystery and sets the stage not only for much misunderstanding, but for lack of understanding about what is actually transpiring. Judicial independence , while an important guarantee of impartiality and nonpartisanship, can also be the cloak behind which judges may conceal illegal or corrupt acts. Indeed, this problem leaves the door open for corrupt activity to go unnoticed or unchallenged . Thus, while there is the need to guarantee judicial independence, branches of government should cooperate and communicate more effectively in order to ensure that the business of government is being done within the guidelines of the constitution. Independence, therefore, requires safeguards against corruption.
If there is no judicial accountability , the cloak of independence may feed corrupt behavior . This, of course, requires a delicate balance between independence and accountability.
B. Corruption leads to a cycle of violence—collapsing support for the Judiciary
Maria Dakolias , counsel, World Bank Legal Dept., and Kim Thachuk , judicial reform advisor, Spring 2k.
[18 Wis. Int'l L.J. 353, The
Problem of Eradicating Corruption from the Judiciary, p lexis]
Corruption in the justice system thus spawns further corruption which leads to a loss of legitimacy and often violence . A vicious circle of corruption and lawlessness ensues from which it is difficult to extricate society. Indeed, corruption in the judiciary is somewhat distinct from corruption in other sectors of government because the judiciary is most often viewed as the failsafe between constitutionalism and a free-for-all or a Hobbesian state of nature. Corruption undermines political legitimacy and makes citizens become distrusting of government. If corruption is to be addressed it needs, among other things, independent prosecutors and judiciary. 44 However, if the judiciary cannot perform this function, the corruption will never be punished because individuals and other branches of government are confident that they are free to do as they please. 45 The judiciary, then, can be the cause of corruption especially if it is slow and does not accuse the guilty. 46 This will lead to impunity of corrupt activities and if nothing is done to address it, unaccountability of the government . 47
C. Kills the rule of law—globally.
Maria Dakolias , counsel, World Bank Legal Dept., and Kim Thachuk , judicial reform advisor, Spring 2k.
[18 Wis. Int'l L.J. 353, The
Problem of Eradicating Corruption from the Judiciary, p lexis]
When judicial corruption in one country reaches an extreme, the door is often opened to the foreign scrutiny of judicial practices. The issue of corruption often transcends international boundaries in a number of ways. Thus, for example, when criminals are not being brought to justice in one jurisdiction, they are free to continue activities such as drug trafficking that have an effect on other countries. 78 In addition, with nationals living abroad, there are many links to home countries and more sophisticated organized crime.
79 Such organized crime undermines the rule of law and legitimacy through corrupt individuals and judicial process. 80
D. Global nuclear war.
Charles S. Rhyne 5/1/ 1958 Law Day Speech for Voice of America delivered on the first Law Day http://www.abanet.org/publiced/lawday/rhyne58.html
The tremendous yearning of all peoples for peace can only be answered by the use of law to replace weapons in resolving international disputes. We in our country sincerely believe that mankind’s best hope for preventing the tragic consequences of nuclearsatellite-missile warfare is to persuade the nations of the entire world to submit all disputes to tribunals of justice for all adjudication under the rule of law. We lawyers of America would like to join lawyers from every nation in the world in fashioning an international code of law so appealing that sentiment will compel its general acceptance.
Man’s relation to man is the most neglected field of study, exploration and development in the world community. It is also the most critical. The most important basic fact of our generation is that the rapid advance of knowledge in science and technology has forced increased international relationships in a shrunken and indivisible world. Men must either live together in peace or in modern war we will surely die together. History teaches that the rule of law has enabled mankind to live together peacefully within nations and it is clear that this same rule of law offers our best hope as a mechanism to achieve and maintain peace between nations. The lawyer is the technician in man’s relationship to man.
There exists a worldwide challenge to our profession to develop law to replace weapons before the dreadful holocaust of nuclear war overtake our people. It is said that an idea can be more powerful than an atom because strength today resides in man’s mind—not his muscle. We lawyers of the world must take the idea of peace under the rule of law and make it a force superior to weapons and thus outlaw wars of weapons.
Law offers the best hope for order in a disordered world. The law of force or the force of law will rule the world. In the field of human conduct the law has never confessed failure. The struggle for a world ruled by law must go on with increased intensity. We must prove that the genius of man in the field of science and technology has not so far outstripped his inventiveness in the sphere of human relations as to make catastrophe inevitable. If man can conquer space he can also solve the need for legal machinery to insure universal and lasting peace.
In our country ignorance of the value of law in international relations and what it could do for the people of the world is appalling. A major purpose of “Law Day-U.S.A.” is therefore to demonstrate to our people that the need for law in the world community is the greatest gap in the growing structure of civilization. And we lawyers of America are anxious to work with lawyers and men of good of all nations in filling this gap in that structure. We believe that no greater challenge exists for any profession and that no greater service to mankind can be performed.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
18/39
EXT –
CORRUPTION
Must check judicial power—expansion causes greater incentive for unaccountability.
Carlo Guarnieri, Prof. Poli. Sci., Universita di Bologna, 2002. [Democracy and the Rule of Law, Courts and Horizontal
Accountability, p. 239-40]
The capability of the judiciary to ensure some form of accountability cannot be taken for granted. The way judges are selected and socialized, and therefore the values they tend to share, must be considered. Judicial independence is not a value in itself but a means toward achieving judicial impartiality (Shapiro 1981). Therefore, it must be balanced against other significant considerations. Judicial independence cannot become a bar to an effective evaluation of judges' professional qualifications. Above all, it should not divorce the judiciary from the political system. It is not only that the significance of judicial decisions in contempo- rary democracies requires judges to be made in some way accountable. There is more than that.
As judicial power expands, an incentive is created for political groups to put pressure on the judiciary, exploiting all the available channels of influence. Because it is impossible to make politics vanish, it seems wiser to channel political pressure in institutional ways. In this manner, the way political influence is exerted can be better exposed, and consequently constrained, while judicial power is also checked: in order to prevent abuses, all power must be checked, and the judiciary is no exception.
Too much independence—trades off with judicial accountability that ensures responsiveness.
Carlos Santiso, Ph.D., Governance Adviser, UK Dept. of Int’l Development, Law, Universidad Diego, 2004.
[Democratization and the Judiciary, Economic Reform and Judicial Governance in Brazil: Balancing Independence with
Accountability, Eds. S. Gloppen and E. Skaar, p. 171-2]
The shortcomings of judicial governance in Brazil reveal the tensions, if not contradictions that exist between independence and accountability. While the prevailing consensus holds that independence is a critical dimension of the judiciary's credibility as an institution of 'horizontal accountability', reformers have often overlooked the corresponding need to enhance external accountability in the judiciary. This shortcoming is due, in part, to the fact that accountability is a difficult concept in the democratic framework of the separation of powers. The paradox of judicial governance in Brazil is that, as an institution of 'horizontal accountability', the judiciary is devoid of incentives for 'vertical accountability'. It is an unconstrained power in the sense that it is not subjected to the checks that periodic democratic elections would have provided. The question then becomes who guards the guardian?" Excessive independence tends to generate perverse incentives and insulate the judiciary from the broader economic and political context, converting it into an autarkic institution unresponsive to social demands. Hence, the puzzle is whether the courts ‘have become too independent’ - whether the Brazilian judiciary in fact had become an entrenched bureaucratic oligarchy in need of restraint and devoid of all accountability to other branches of government and to the public'.22
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
19/39
COUNTERPLAN SOLVES CORRUPTION
Congressional strength is necessary to stop corruption – judicial supremacy spreads, killing the rule of law
Maria Dakolias , counsel, World Bank Legal Dept., and Kim Thachuk , judicial reform advisor, Spring 2k. [18 Wis. Int'l L.J. 353, The
Problem of Eradicating Corruption from the Judiciary, p lexis]
In addition to independence, accountability of the judiciary is necessary for ensuring impartial and equitable decisions. Without accountability, there is the danger of judicial corruption or impropriety. The overwhelming question becomes: can corruption be eradicated given the necessity of maintaining judicial independence under a system of good governance? Particularly during the planning stages of judicial reform, the issue of corruption should be addressed. However, very often the overwhelming concern is to improve judicial independence. This may be because judges need independence before accountability so that they may be effective. 1
Although there is tension between independence and accountability, independence will be weak if corrupt behavior is prevalent.
Judicial reform aims to improve the quality, efficiency, integrity, and access to the judiciary. It is crucial, therefore, to address corruption if independence is to be truly improved.
While the other effects of corruption vary depending on the nature and extent of corruption, such malaise in the criminal justice system of a country is particularly deleterious to order.
Typically, corrupt personal and factional considerations divert the energy and attention of those engaged in the criminal justice system away from the real goals and objectives of the public realm. As the activities of the bureaucracy become suborned by corruption, [*359] the administration increasingly fails to respond to public need. In some cases a virus-like effect occurs in which the corruption of one institution eventually and inevitab ly begins to sprea d to those other institutions with which they come into contact. Sometimes the epidemic reaches national proportions in which every public office is afflicted with graft, personal loyalties, waste and serious misallocation in terms of national public policy objectives. Thus, if corruption is evident in only one branch of the criminal justice system, the chances that it will spread unless stopped are great. And in the case of the judiciary, "with a damaged judicial power, the other branches of government are confident that their misdeed will never be punished." 20 The attendant loss of legitimacy for a criminal justice system is generally a death knell for the rule of law.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
20/39
MILITARY TRIALS MODULE 1/2
A. [insert modeling]
B. Enhanced judicial independence leads to human rights trials of military personnel
Elin Skaar (PhD Political Science, Senior Researcher and Head of the Human Rights Programme at the Chr. Michelsen Institute)
2001 : “judicial independence and human rights policies in argentina and chile” p. 19-20 __http://www.cmi.no/publications
/publication.cfm?pubid=913__
In this paper I have argued that variation in judicial independence is crucial to understanding variation in human rights policies over time, here narrowly interpreted as the presence or absence of trials of (ex) military personnel for gross human rights violations they committed during military rule. I have challenged Pion-Berlin and Arceneaux’s argument that policy outcomes are inextricably tied to levels of institutional concentration and autonomy in the executive branch. Human rights gains, they argue, occur when policy-making authority is centred in a few hands and where the president can use institutional channels suitably closed to military influence. My empirical analysis of Chile and Argentina has suggested that an independent judiciary free to enforce the rule of law without deferring to executive preference or military threats/pressures may be significantly influential in determining policy outcomes. The Argentine judiciary demonstrated a rather high degree of independence at the time of transition. Its independence was severely curbed, first by
Alfonsín in 1986 and 1987, and then further by Menem in 1990. After judicial reforms in 1994 and 1996, the judiciary seems to have regained some of its independence. This is seen in increased judicial activism in human rights cases involving the military. The
Chilean judiciary, by contrast, has gone through a much more steady development. From having hardly any autonomy and authority due to military direct and indirect influence at the transition in 1990, judges progressed to showing somewhat more independence in
1996. The judicial reforms passed in 1998 and, combined with a further reduction in military threat, and a boost of activity in the human rights sector have enabled the courts to act more independently since 1998 than any scholar would have predicted ten years earlier. If my argument holds true more generally, we would expect in the future to see more trials of (ex) military officers for gross human rights violations in other Latin American countries that have carried out judicial reform during the last decade. This includes countries with high levels of human rights violations, such as Guatemala, El Salvador, and Paraguay. Executives in these countries have carried out substantial constitutional reforms expanding the autonomy of the courts from the executive. But as long as the military remains a strong force in politics, the exercise of judicial authority and autonomy may continue to be limited. Another case where we might expect trials of military officers in the future is Uruguay, where the ‘disappeared’ are still an issue.76 This small
Southern Cone country, which became infamous for having the largest portion of its citizens imprisoned and tortured during the military dictatorship in the 1970s, has so far done nothing to prosecute its military. The combination of an executive, ex-President
Sanguinetti, who was openly in favour of forgetting the matters of the past and a judiciary dependent on the executive may account for this inaction. The military has posed no apparent threat to civilian rule since return to democracy in 1984, and there has been a persistent demand for justice from the human rights sector, notably for recovery of disappeared children and grandchildren. Therefore, if constitutional judicial reforms were to be pushed through, we would expect trials . The argument may, of course, also be extended beyond Latin America. Numerous African countries, for instance, have undergone both transitions to democracy and are currently revamping their judicial systems. As these new democracies become more solidified, we would expect courts to take on cases of human rights violations carried out by previous regimes. The theoretical implication of my argument is that with the events of judicial reform and a gradual retreat by the military from the political sphere, we may have to rethink the meaning of civilmilitary relations to systematically include a neglected third player – the judiciary - when analysing post-transitional politics. The entry of a more independent judiciary on the political scene obviously influences the balance of power within government institutions, which, in turn, may have a direct impact on policy outcomes, such as on human rights.
C. Trials cause military coups and prevent future democratic transitions
Makoto Usami (Professor of Law and Philosophy in the Department of Social Engineering, Graduate School of Decision Science and
Technology, Tokyo Institute of Technology, Japan) 2001 : Retroactive Justice: Trials for Human Rights Violations under a Prior
Regime
The existence and degree of political loss depends upon circumstances surrounding a new government. In the common case that the government is fragile and unstable, it may be overthrown by the coup d’etat criminal trials may provoke (Zalaquett 1989: 27-28). If some of the officials involved in past abuses retain their office in the subsequent government, the government’s attempts to prosecute will face strong objections from these officials. If those who supported or collaborated with the prior government amount to a substantive portion of the population, trials may make it difficult to bring about national unification (Zalaquett 1989: 37-38).
Additionally, a virtual certainty of prosecution will hinder some repressive governments from voluntarily relinquishing power; however, this concern may be outweighed by the international preventive function of punishment (Orentlicher1991: 2549).
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
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MILITARY TRIALS MODULE 2/2
D. Democracy solves nuclear and biological warfare, genocide and environmental destruction
Diamond ‘95
(Larry Diamond, Hoover Institution, Stanford University, December, PROMOTING DEMOCRACY IN THE 1990S, 1995, p. http://www.carnegie.org//sub/pubs/deadly/diam_rpt.html)
Nuclear, chemical and biological weapons continue to proliferate. The very source of life on Earth, the global ecosystem, appears increasingly endangered. Most of these new and unconventional threats to security are associated with or aggravated by the weakness or absence of democracy, with its provisions for legality, accountability, popular sovereignty and openness. The experience of this century offers important lessons. Countries that govern themselves in a truly democratic fashion do not go to war with one another. They do not aggress against their neighbors to aggrandize themselves or glorify their leaders. Democratic governments do not ethnically "cleanse" their own populations, and they are much less likely to face ethnic insurgency.
Democracies do not sponsor terrorism against one another. They do not build weapons of mass destruction to use on or to threaten one another. Democratic countries form more reliable, open, and enduring trading partnerships. In the long run they offer better and more stable climates for investment. They are more environmentally responsible because they must answer to their own citizens, who organize to protest the destruction of their environments.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
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AFGHANISTAN MODULE 1/2
The Afghanistan judicial system is based off the United States judiciary
Robert Perito , professor @ Princeton, senior fellow @ United States institute of peace “Establishing the Rule of Law in Afghanistan”
2004 http://www.usip.org/resources/establishing-rule-law-afghanistan
Donors other than the “lead nation” should work more proactively with Afghan authorities and Italy to help define and drive a reform strategy for the justice sec- tor and undertake initiatives where they are needed, as the United States has done recently in police training. Though the United States already has significant com- mitments in other sectors and is already the second largest donor in the justice sector, it also has the most at stake and invested in Afghanistan’s reconstruction and the greatest political influence of any international player in the country, and should not wait for other donors to act in this area. Other donors should also step up for particular aspects of the rule of law portfolio, such as corrections.
Judicial independence would result in a collapse of Afghanistan’s government
Barnett R. Rubin , PHD @ UChicago, Director of afghan studies @ NYU, 6-52003 . [Presentation to Constitutional Commission of
Afghanistan” www.cic.nyu.edu/archive/pdf/Presentationto.pdf
Finally, I understand that the commission is considering establishment of a constitutional court to review legislation and acts of the government for conformity to the constitution. Afghanistan never had such judicial review in the past. Instead, it was the responsibility of the king to assure that the government acted in accord with the constitution and the fundamental principles
(asasat) of Islam. Many new democracies have established such courts to safeguard the rights of the people. Unfortunately, if judicial review is established in too broad a manner, it can have negative effects on the functioning of government . If a court reviews legislation before it is enacted, such review can delay necessary government decision-making. If a court has the power to decide if the government’s decisions conform to a general idea like the principles of Islam, it has a tremendous amount of discretion, it can misuse for political purposes. In Pakistan, for instance, a court overturned arbitrarily the commercial code and the banking laws; on the grounds that they contradicted Sharia with disastrous economic effects. We have seen such dangerous results in Pakistan. In the past the responsibility for conformity to the principles of Islam remained with riyasat-i taqnin and the executive, acting on the advice of experts. The commission might consider if this system might be sufficient for the country today as well. A number of the experts whom we consulted suggested that the jurisdiction of the constitutional court should be limited to disputes involving fundamental rights and relations among different parts of the government, as is done in
Malaysia, where the laws also conform to Islamic principles.
Collapse leads to Middle East war
The Guardian ‘7
The Guardian “Failure in Afghanistan risks rise in terror, say generals” July 15 2007 www.guardian.co.uk/uk/2007/jul/15/world.afghanistan
Britain's most senior generals have issued a blunt warning to Downing Street that the military campaign in Afghanistan is facing a catastrophic failure, a development that could lead to an Islamist government seizing power in neighbouring Pakistan. Amid fears that London and Washington are taking their eye off Afghanistan as they grapple with Iraq, the generals have told Number
10 that the collapse of the government in Afghanistan , headed by Hamid Karzai, would present a grave threat to the security of Britain. Lord Inge, the former chief of the defence staff, highlighted their fears in public last week when he warned of a 'strategic failure' in Afghanistan. The Observer understands that Inge was speaking with the direct authority of the general staff when he made an intervention in a House of Lords debate. 'The situation in Afghanistan is much worse than many people recognise,' Inge told peers. 'We need to face up to that issue, the consequence of strategic failure in Afghanistan and what that would mean for Nato... We need to recognise that the situation - in my view, and I have recently been in Afghanistan - is much, much more serious than people want to recognise.' Inge's remarks reflect the fears of serving generals that the government is so overwhelmed by Iraq that it is in danger of losing sight of the threat of failure in Afghanistan. One source, who is familiar with the fears of the senior officers, told The Observer: 'If you talk privately to the generals they are very very worried. You heard it in Inge's speech. Inge said we are failing and remember Inge speaks for the generals.' Inge made a point in the Lords of endorsing a speech by Lord Ashdown, the former Liberal Democrat leader, who painted a bleak picture during the debate.
Ashdown told The Observer that Afghanistan presented a graver threat than Iraq. 'The consequences of failure in Afghanistan are far greater than in Iraq,' he said. 'If we fail in Afghanistan then Pakistan goes down. The security problems for Britain would be massively multiplied. I think you could not then stop a widening regional war that would start off in warlordism but it would become essentially a war in the end between Sunni and Shia right across the Middle East.
' 'Mao Zedong used to refer to the First and Second World Wars as the European civil wars. You can have a regional civil war.
That is what you might begin to see. It will be catastrophic for Nato. The damage done to Nato in Afghanistan would be as great as the damage done to the UN in Bosnia. That could have a severe impact on the Atlantic relationship and maybe even damage the American security guarantee for Europe.'
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
23/39
AFGHANISTAN MODULE 2/2
Middle East war goes nuclear
John Steinbach , DC Iraq Coalition, ISRAELI WEAPONS OF MASS DESTRUCTION: A THREAT TO PEACE, March 2002 , http://www.globalresearch.ca/articles/STE203A.html
Meanwhile, the existence of an arsenal of mass destruction in such an unstable region in turn has serious implications for future arms control and disarmament negotiations, and even the threat of nuclear war. Seymour Hersh warns, "Should war break out in the Middle East again,... or should any Arab nation fire missiles against Israel, as the Iraqis did, a nuclear escalation, once unthinkable except as a last resort, would now be a strong probability." and Ezar Weissman, Israel's current President said "The nuclear issue is gaining momentum(and the) next war will not be conventional." Russia and before it the Soviet Union has long been a major(if not the major) target of Israeli nukes. It is widely reported that the principal purpose of Jonathan Pollard's spying for Israel was to furnish satellite images of Soviet targets and other super sensitive data relating to U.S. nuclear targeting strategy. (Since launching its own satellite in 1988, Israel no longer needs U.S. spy secrets.) Israeli nukes aimed at the Russian heartland seriously complicate disarmament and arms control negotiations and, at the very least, the unilateral possession of nuclear weapons by Israel is enormously destabilizing, and dramatically lowers the threshold for their actual use, if not for all out nuclear war. In the words of Mark Gaffney, "... if the familiar pattern(Israel refining its weapons of mass destruction with
U.S. complicity) is not reversed soon- for whatever reason- the deepening Middle East conflict could trigger a world conflagration."
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
24/39
UNIQUENESS – JUDICIAL NOT INDEPENDENT
Afghanistan’s judiciary is nominal now.
U.S. State Department 2-282005 . [Bureau of Democracy, Human Rights, and Labor, Afghanistan: Country Reports on Human
Rights Practices - 2004, p. http://www.state.gov/g/drl/rls/hrrpt/2004/41737.htm
]
Afghanistan oversaw the ratification of a new Constitution on January 4. Hamid Karzai was elected President in the country's first presidential election held on October 9, which was deemed acceptable by the majority of its citizens. Although a few major provincial centers remained under the effective control of regional commanders for most of the year, the Government made progress in asserting its authority, and the commanders acknowledged the central government's legitimacy. Karzai dismissed and appointed new governors to many of the 34 provinces. Judicial power rested with the Supreme Court. Under the new Government, the rule of law applied throughout the country; however, in practice, recognition of the rule of law, particularly outside of Kabul, was limited. The nominally independent judiciary was accused by some of corruption and being subject to political pressure from officials and commanders, especially at the provincial and local levels. The judicial system operated on an intermittent basis during the year, while the Government and the international community trained judges and lawyers and reconstructed courthouses.
For every action there is an equal and opposite government program – Bob Wells
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Military Neg
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EXT – AFGHANISTAN MODELS
The United States is the key actor reforming Afghanistan’s judicial sector
Perito, professor @ Princeton ‘4
(Robert Perito, professor @ Princeton, senior fellow @ United States institute of peace “Establishing the Rule of Law in Afghanistan”
2004 http://www.usip.org/resources/establishing-rule-law-afghanistan )
Though Afghan and international officials often refer to rule of law development as one of the highest priorities in the reconstruction process, the necessary measures are not being treated with urgency (other than recently in the police sector). U.S
. funding, for example, for rule of law activities other than police or counter-narcotics for FY2004 is $10 million in State
Department funds, plus some limited (but not yet decided) portion of USAID’s $54 million in “democracy and governance” funds for Afghanistan, the majority of which will be used for elections support, compared to over $110 million for police training. In 2003, the U.S. spent about $13 million on rule of law activities other than police, including support for the Judicial
Reform , Constitutional, and Independent Human Rights Commissions. (As insufficient as these amounts are relative to the needs of the Afghan justice sector , they make the U.S. the second largest donor to the sector.) Money aside, relatively little political attention is being paid to the justice sector; the field has been left largely to “lead nation” Italy, which is widely seen as focused mainly on implementation of its own projects, rather than coordination of broader efforts. As a consequence, and despite the presence of some Afghan officials who are committed to reform, since the fall of the Taliban little progress has been made toward building a functioning justice system.
For every action there is an equal and opposite government program – Bob Wells
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Military Neg
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EXT – INDEPENDENCE
COLLAPSE
Modeling strong judicial review undermines Afghani stability
Khaled M.
Abou El Fadl et al (
Professor, University of California at Los Angeles,School of Law)
, 2003 : Democracy and Islam in the New Constitution of Afghanistan, __http://www.rand.org/pubs/conf _proceedings/CF186/CF186.pdf__
The ability of an independent judiciary to review whether legislation and executive actions are constitutional can be an important feature of a democracy. However, allowing judges to review legislation’s conformity with Islam carries real risks.
In
Pakistan, for example, judges struck down vast portions of the statutory law because it did not conform to their notion of
Islam, wreaking havoc in the economy and society generally. Other countries have had similarly negative experiences.
Fortunately, Afghanistan has no tradition of judicial review for conformity to Islam, and it may be best not to alter this course.
Independence fuels corruption and blocks democracy.
Barnett R. Rubin, Ph.D., Director of Studies and Senior Fellow, Center on International Cooperation, NYU, 2004 . [Journal of
Dmeocracy, Craftig a Constitution for Afghanistan, p. Muse]
One area about which there was unfortunately no controversy was the judiciary. This was a shame since in Afghanistan the judges have become a self-perpetuating caste. The Supreme Court is not only the ultimate appellate forum, now with the power of judicial review, but [End Page 17] also the chief administrative organ of the judiciary. It controls judicial budgets and appoints, pays, promotes, and disciplines the lower-court judges. While judicial nominees must win presidential confirmation, Karzai has never refused a candidate whom the Supreme Court has put forward. During the public consultations on the constitution, judicial corruption was an oft-heard complaint. The constitutional commission's leaders privately admit that the current system creates corrupt networks of judges. Yet the new constitution retains this system: Judgeships form the main source of employment for the ulama, and neither the president nor the commission wants to confront them. Given the expanded powers of the Supreme Court and the interest of the ulama in keeping a monopoly of the power to interpret Islam, the failure to create more constitutional space for judicial reform could prove a serious barrier against needed change in the future.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
27/39
ARGENTINA MODULE 1/2
US model key to Argentina SOP
Garcia-Mansilla ‘4
(Manuel Garcia-Mansilla, LLM @ Georgetown University Law, Spring 2004, Georgia Journal of International and Comparative Law, l/n)
The Argentine Constitution was drafted according to the United States Constitution. Although initially Argentine scholars and the
Argentine Supreme Court followed the U.S. example, continental European public law has exercised an increasingly important influence in the interpretation and development of constitutional law in Argentina. This influence has been particularly important in administrative law and has expanded to constitutional law. This situation has been aggravated by the 1994 constitutional amendment, which included many European institutions into the Argentine Constitution. This study demonstrates the risks involved in using
European precedents within a U.S. type of constitutional framework such as the one adopted by the Argentine Constitution. Argentina is a good example of how the principle of separation of powers can be destroyed through the misuse of alien legal constructions.
Although still remaining presidential, by means of those interpretations and amendments, separation of powers in Argentina has given way to the fusion of powers of the parliamentary system. 1 Today, the original conception of separation of powers (three branches of co- equal importance, with checks and balances in a horizontal relationship) has shifted to a vertical relationship with the executive branch at the top. Checks and balances have disappeared and, in fact, presidents exercise the lawmaking power through executive orders issued on grounds of necessity and urgency (decretos de necesidad y urgencia). In addition, none of the common controls of parliamentary systems exist, since presidents may not be removed by votes of non-confidence. This Article argues that the failure of the presidential system in Argentina was not a direct consequence of having copied most of the U.S. system. It also argues that the deformation of the presidential system adopted by the Argentine Constitution contributed to the failure of presidential democracy.
This Article shall prove that the presidential system is not responsible, as many scholars argue, for the failure of democracy in many countries in Latin America. Instead, it shall show that Argentina's solution is to strengthen its system of separation of powers by adding checks and balances in accordance with the U.S. model.
That’s key to the Latin America nuclear weapons-free zone
Litwak ‘4
(Robert Litwak, Director of International Studies at the Woodrow Wilson Center of the Smithsonian Institute, 2004, Survival, Winter
2004, http://wwics.si.edu/topics/pubs/survival2.pdf)
In addition to alliances and security assurances, three other major factors have promoted nuclear restraint; the international norm embodied in the Nuclear Non-Proliferation Treaty (NPT); a radical change in the international environment, leading to the reduction of international insecurity; and regime change, through the transition from authoritarian or military regimes to democratically elected civilian ones. In Brazil and Argentina, the transition to democracy and civilian rule was instrumental in terminating covert nuclear weapon programmes under military control and in bringing about the nations’ 1994 accession to the 1967 Treaty of Tlatelolco, which had created a nuclear weapons-free zone in Latin America.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Military Neg
28/39
ARGENTINA MODULE 2/2
Extinction
Treaty for the prohibition of nuclear weapons in latin America , No Date (online @ http://www.armscontrol.org/documents/tlatelolco)
Convinced: That the incalculable destructive power of nuclear weapons has made it imperative that the legal prohibition of war should be strictly observed in practice if the survival of civilization and of mankind itself is to be assured, That nuclear weapons, whose terrible effects are suffered, indiscriminately and inexorably, by military forces and civilian population alike, constitute, through the persistence of the radioactivity they release, an attack on the integrity of the human species and ultimately may even render the whole earth uninhabitable, That general and complete disarmament under effective international control is a vital matter which all the peoples of the world equally demand, That the proliferation of nuclear weapons, which seems inevitable unless States, in the exercise of their sovereign rights, impose restrictions on themselves in order to prevent it, would make any agreement on disarmament enormously difficult and would increase the danger of the outbreak of a nuclear conflagration, That the establishment of militarily denuclearized zones is closely linked with the maintenance of peace and security in the respective regions, That the military denuclearization of vast geographical zones, adopted by the sovereign decision of the States comprised therein, will exercise a beneficial influence on other regions where similar conditions exist, That the privileged situation of the signatory States, whose territories are wholly free from nuclear weapons, imposes upon them the inescapable duty of preserving that situation both in their own interest and for the good of mankind, That the existence of nuclear weapons in any country of Latin America would make it a target for possible nuclear attacks and would inevitably set off, throughout the region, a ruinous race in nuclear weapons which would involve the unjustifiable diversion, for warlike purposes, of the limited resources required for economic and social development, That the foregoing reasons, together with the traditional peace-loving outlook of Latin America, give rise to an inescapable necessity that nuclear energy should be used in that region exclusively for peaceful purposes, and that the Latin American countries should use their right to the greatest and most equitable possible access to this new source of energy in order to expedite the economic and social development of their peoples, Convinced finally: That the military denuclearization of Latin America -- being understood to mean the undertaking entered into internationally in this Treaty to keep their territories forever free from nuclear weapons -- will constitute a measure which will spare their peoples from the squandering of their limited resources on nuclear armaments and will protect them against possible nuclear attacks on their territories, and will also constitute a significant contribution towards preventing the proliferation of nuclear weapons and a powerful factor for general and complete disarmament, and That Latin
America, faithful to its tradition of universality, must not only endeavour to banish from its homelands the scourge of a nuclear war, but must also strive to promote the well-being and advancement of its peoples, at the same time co-operating in the fulfillment of the ideals of mankind, that is to say, in the consolidation of a permanent peace based on equal rights, economic fairness and social justice for all, in accordance with the principles and purposes set forth in the Charter of the United Nations and in the Charter of the
Organization of American States
For every action there is an equal and opposite government program – Bob Wells
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BRAZIL MODULE
A. American judiciary is modeled successfully in Latin America
Schor 08 (Miguel, Associate Professor of Law at Suffolk University Law School, "Mapping Comparative Judicial Review"
Washington University Global Studies Law Review, volume 2 issue 7, Lexis)
The United States was not the only new nation in the Americas to experiment with written constitutions and judicial review. Most accounts of the rise of judicial review ignore the experience of Latin America because it is difficult to construct a triumphalist narrative for Marbury abroad given the difficulties the region experienced in instituting democracy. n36 Once Spain's colonies gained independence, they unsurprisingly looked north for constitutional models. The prestige that the United States enjoyed made an American-style constitution with judicial review a compelling model for constitution writers to emulate throughout the region . n37 As a consequence, the U.S. model of diffuse review , which does not rely on specialized courts to exercise judicial review, proved more successful in Latin America than elsewhere . n38 [*264] Although judicial review failed to preserve constitutions from centrifugal forces in the region, n39 it did play a role in stabilizing regimes whose democratic credentials were questionable . n40 The Latin
American experience illustrates that even borrowed institutions, such as written constitutions and judicial review, may function when planted in alien soil , albeit in a fashion that was not envisioned by their designers. The governments of the region were highly centralized, n41 however, which meant that courts were marginalized from power. The power of courts to ameliorate political conflict diminishes when authority is concentrated.
B. Independence hurts growth.
Carlos Santiso , Professor, Paul H. Nitze School of Advanced Int’l Studies, Sept.
2003 . [Brazilian Journal of Political Economy, The Elusive Quest for the Rule of Law, p. Muse]
The contrast between Argentina and Brazil is particularly illustrative in this regard. The case of Brazil illustrates the perils of insularity and unaccountability resulting from excessive independence . In Brazil, “reformers achieved unprecedented levels of structural and individual independence, but, in the process of reacting to more than two decades of military rule, swept aside the balancing constraints of accountability and transparency. By virtually any measure, the courts are irresponsible, inefficient and inaccessible” (94 ). For example, the judiciary sets and administers its own budget, often with little selfrestraint and accountability. Reports of overspending and mismanagement are common. Furthermore , judicial insularity has hampered the implementation of economic reforms, as the Supreme Court has regularly struck down executive decrees or enforced some of the most ill considered portions of the Constitution. The unreliability and uncertainty of the judicial process also has a negative impact on growth and investment . Nevertheless, repeated attempts at placing judicial reform on the political agenda and introducing external oversight have failed to overcome the defensive corporate culture of the judiciary and its strict interpretation of the principle of separation of powers. Confronted with more pressing reforms and concerns, President Fernando Henrique Cardoso has been unable to craft a sufficient coalition to support judicial reform. Consequently, “without more sustained pressure for judicial reform, the ability of the courts to resist reform efforts becomes much easier” (96).
C. Brazil key to Latin American growth.
Peter Hakim , president of the Inter-American Dialogue, Winter 1999/ 2k . [Foreign Policy, Is Latin America Doomed to Failure, p. Academic Search Premier]
Brazil, which accounts for nearly one third of Latin America's population and economic activity, will heavily influence the region's overall economic performance in the coming years. It is the wild card . True, Brazil's growth throughout the 1990s has been sluggish and will average less than 2.5 percent a year for the decade. Nevertheless, the country succeeded far beyond anyone's expectations in squeezing inflation out of its economy and quickly recuperating from its recent currency crisis . At this point, there is no telling whether Brazil's economy will turn up or down. The country's fortunes hinge on the political skills and luck of President Fernando Cardoso and his advisers, who need to manage an unruly congress and fickle public opinion to keep reform efforts on track. Brazilian politics--fragmented, weakly institutionalized, and driven by local and regional interests--are a feeble underpinning for a modern economy and society. Yet few Latin American countries can boast richer political debate on key national issues, a more free and vigorous press, or a stronger trade union movement.
D. Downturn kills to the US economy.
Boris Saavedra , professor, Center for Hemispheric Defense Studies , National Defense University, April 2003 . [NDU Working
Paper, Confronting Terrorism in Latin America, p. http://www.ndu.edu/chds/journal/PDF/2003-0403/Saavedra-article.pdf
]
The United States shares with its Latin American neighbors an increasingly and vitally important financial, commercial, and security partnership. Any kind of political-economic-social-security deterioration in the region will profoundly affect the health of the U.S. economy—and the concomitant power to act in the global security arena.
E. Nuclear War
Walter Russell Mead , Henry A. Kissinger Senior Fellow for U.S. Foreign Policy, 2-409 , “Only Makes You Stronger,” http://www.tnr.com/politics/story.html?id=571cbbb9-2887-4d81-8542-92e83915f5f8&p=2
If financial crises have been a normal part of life during the 300-year rise of the liberal capitalist system under the Anglophone powers, so has war . The wars of the League of Augsburg and the Spanish Succession; the Seven Years War; the American Revolution; the Napoleonic Wars; the two World Wars; the cold war:
The list of wars is almost as long as the list of financial crises. Bad economic times can breed wars. Europe was a pretty peaceful place in 1928, but the Depression poisoned German public opinion and helped bring Adolf Hitler to power. If the current crisis turns into a depression , what rough beasts might start slouching toward Moscow, Karachi, Beijing, or New Delhi to be born?
The United States may not, yet, decline, but, if we can't get the world economy back on track, we may still have to fight.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
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EXT – MODELING
Latin American countries model the U.S.’s judiciary
Garro 95 (Alejandro, Adjunct Professor of Law at Columbia University, "On Some Practical Implications of the Diversity of Legal
Cultures for Lawyering in the Americas" Revista Juridica Universidad de Puerto Rico, 1995, volume 461 issue 64, Lexis)
Not only the idea of codification and the rules of law were different from those embodied in the Common Law of England inherited by the Anglo-American colonies, but the Spanish-Portuguese patterns of colonial administration distinctively colored the methods of applying and enforcing those laws. Having shared a colonial past subject to the rigors of an absolute monarchy prompted Latin
America leaders to look for a republican form of government. The most appealing constitutional model was the one offered by the
United States, which had achieved its independence fifty years earlier and was already a working democracy at the time most countries of Latin America obtained their political independence. According to the newly enacted rigid and written constitutions, the
[*463] exercise of political power in most of Latin America was meant to be divided among different branches, autonomous and independent. A bill of rights was incorporated into the newly enacted constitutions, and the judiciary was granted the power to pass judgment on the constitutionality of executive and legislative action. This was the structure of power and the listing of individual rights, as established in the constitutional text. Throughout the years, however, the actual exercise of that power took a shape of its own. This difference on what the government can and cannot do also bears some "practical implications" of different legal cultures to lawyering in the Americas.
Latin American judiciaries use the American diffuse method
Brewer-Carias 07 (Allan R., Professor at Columbia Law School and Vice President of the International Academy of Comparative
Law, "Judicial Review in the America's and Beyond: Symposium Issue: Article: Judicial Review in Venezuela" Duquesne Law
Review,
In the diffuse, or decentralized, method, all the courts are empowered to judge the constitutionality of statutes, as is the case in the
United States of America, where the "diffuse method" n6 was born. That is why it is also referred as the "American model," initiated with Marbury v. Madison n7 in 1803, later followed in many countries with or without a common law tradition. It is called "diffuse" or decentralized because judicial control is shared by all courts, from the lowest level up to the Supreme Court of the country. In Latin
America, the only country that has kept the diffuse method of judicial review as the only judicial review method available is
Argentina. In other Latin American countries, the diffuse method coexists with the concentrated method.
For every action there is an equal and opposite government program – Bob Wells
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AT: RUSSIA MODELING GOOD
1. Cultural resistance to judicial independence.
Jeffrey Kanh, Ph.D., J.D., Trial Attorney, U.S. DOJ, Civil Division, Winter, 2006. [37 Geo. J. Int'l L. 353, The Search for the Rule of Law in Russia, p. lexis]
These statistics point to a recurring theme in Russian history: reform from above is neve r enough. As Soviet era laws continue to be replaced by generally improved post-Soviet legislation, the reform of institutional cultures, old methods, and mindsets remains even more difficult and less has been accomplished. 162 The opposition of the [ siloviki ] is taken for granted. Even as the KGB morphed into the FSB, the persistence of the old slang [ chekisty ] that originated with the VCheKa remains standard usage -- it is not expected that the sword and shield, the symbol of the states security organ, will be replaced in the same way as the hammer and sickle. Unlike the countries of Eastern Europe, no lustration process occurred in Russia, nor is one to be expected at this late stage. This behavioral legacy of the Soviet past, as the experience in reforming the Criminal Procedure Code suggests, is no less an obstacle to the establishment of the rule of law than structural reform. This is because the greatest abuses of the rights and processes to which citizens are entitled when confronted by the criminal justice system monolith occur not in the mansion of the court, but at the gatehouse of the police precinct. 163 It is at the earliest [*402] moments that a person comes under suspicion, is placed under arrest, or subject to interrogation, that observance of his legal rights matters most.
2. Judicial review contradicts democratic transition in Russia.
Alexei Trochev, Ph.D., Research Associate, Instituteof Intergovernmental Relations, Queen’s University, Sept. 2004. [38
Law & Soc'y Rev. 513, Less Democracy, More Courts: A Puzzle of Judicial Review in Russia, p. lexis]
Contrary to the theories that link democratization with constitutional courts, judicial review was not created (Nizhnii Novgorod and Volgograd), was weakened (Sverdlovsk), and was least accessible and least powerful (St. Petersburg) in the regions with highly contested elections and active political competition. Judicial review lasted several months and failed to take root in
Chechnya and Mordoviia, where severe diffusion of political power resulted in the overthrow of constitutional order, not in the institutionalization of judicial review, as current judicial empowerment theories predict. Moreover, twelve constitutional courts were established and survived in the context of the "creeping authoritarianism" of constituent republics that threatens Russia's democratic transition (Kahn [*541] 2002:4). In short, similar to the complexity of state-level constitution-making in the United
States (Tarr 1998), the evolution of constitutional "engineering" in Russian regions is far from being linear.
3. No independence—internal politics blocks independent judiciary.
Peter H. Solomon, Prof., poli. sci. and law, Centre for Russian and East European Studies, U. of Toronto, and Todd S.
Foglesong, Ph.D., asst. prof., U. Kansas, 2k. [Courts and Transition in Russia, p. 18-9]
Some of the greatest threats to the autonomy of judges in Russia come from within the judiciary. Higher court judges, the chairmen of particular courts, and even the instruments of judicial self-governance like the judicial qualification commissions all influence the conduct of judges in trial courts. Without some such influence, there would be little consistency in judicial decisions or hierarchy of law, but there is a real danger that, as in the Soviet past, pressures for uniformity force judges to conform with regime policies, not to speak of the interests of bureaucratic superiors. The judicial system of post-Soviet
Russia must not reproduce its traditional forms of judicial dependence.
4. Russia used fake trials before we did.
Human Rights News 11-28-2001. [“Fact Sheet: Past U.S. Criticism of Military Tribunals,” p. http://www.cnss.org/rumsmtp1202.htm]
The arrests and detentions of various government critics, including academics, human rights activists and journalists have been documented in the State Department's Country Reports. Espionage cases in particular have been subject to frequent abuses. In
1999, Igor Sutyagin, a researcher for the USA Canada Institute was detained on espionage charges. The Russian Federal Security
Service (FSB) has claimed that Mr. Sutyagin violated a secret Ministry of Defense decree on secrecy. Evidence in his case was secret, and Mr. Sutyagin remains in detention. Other individuals who have been charged with treason include Aleksandr Nikitin, a retired Russian Navy captain and environmentalist. According the most recent Country Reports, "Nikitin's case was characterized by serious violations of due process." The Country Report also expressed concern about the trials of several non-Russians charged with espionage. As in the previous cases, the attorneys had trouble obtaining the details of the charges.
For every action there is an equal and opposite government program – Bob Wells
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AT: INDONESIA MODEL GOOD
1. More judicial strength means more intervention.
Hiram E. Chodosh , Prof. of Law, Director, Int’l Law Center, Case Western Reserve U. School of Law, Winter 2002 . [52 DePaul
L. Rev. 351, Reforming Judicial Reform Inspired by U.S. Models, p. lexis]
Ironically, the new demands on courts appear to intensify their ineffectiveness. As courts become more important, the political urge to influence them also grows. Despite the strong rhetorical commitments to independence, integrity, and efficiency, severe problems fester. 13 Illegal influence remains common. 14 In Indonesia, for example, the Supreme Court remains vulnerable to political intimidation, threats of violence, and enticingly large bribes. 15 In Tanzania, bribes of lay assessors, who are paid the equivalent of $ 0.45 per sitting, are considered necessary to advance or defend claims successfully. 16 In surveys conducted in
Bangladesh, 63.6% of the respondents indicated that they had bribed judicial officials (73.1% in cash, 53.3% paying their bribes in person); almost 90% said that it was almost impossible to get [*355] a quick and fair judgment without monetary influence. 17 In sum, the law that proscribes corruption has profoundly limited effects 18 on the market incentives for bribery. 19
2. Indonesia’s judicial problems are too systemic.
Hiram E. Chodosh , Prof. of Law, Director, Int’l Law Center, Case Western Reserve U. School of Law, Winter 2002 . [52 DePaul
L. Rev. 351, Reforming Judicial Reform Inspired by U.S. Models, p. lexis]
The causes of this common failure are deeply systemic . Two brief examples illustrate the number of factors that may contribute to court failure. In Indonesia, for example, political and private interference are attributable to three major factors: strong incentives, weak disincentives, and ample opportunity. Weak terms of judicial employment including low salaries, politicized appointment, transfer and promotion systems, insecure terms of office or tenure, and limited forms of economic and personal security increase the need to seek illegal monetary payments and to avoid political affronts. Frequently, the disincentives are equally weak. Vague ethical norms, poor monitoring capacity, corrupted review systems, and ineffectual prosecution and enforcement substantially reduce the risk of illicit behavior. 25 Opportunities for corruption remain unchecked by an opaque procedural system of limited joint communication, reason-giving or publicity, a slow and fragmented process with multiple steps and appeals, a poorly regulated and fragmented body of legal professionals, and a state monopoly on the resolution of legal disputes that puts too much discretion in too few hands. 26
3. Independence backfires—Indonesian justices are increasingly insulated and corrupt.
Hiram E.
Chodosh , Prof. of Law, Director, Int’l Law Center, Case Western Reserve U. School of Law, Winter 2002 . [52 DePaul
L. Rev. 351, Reforming Judicial Reform Inspired by U.S. Models, p. lexis]
Given these impediments and conditions, reforms frequently fail. Failures take at least three different forms. First, reforms may merely render disappointing results.
For example, case management reforms in the United States have not demonstrated any appreciable, multidistrict impact on savings of cost or time.
50
Judicial councils aimed at [*364] improving judicial performance, for example, appear vulnerable to the same problems they are designed to address: political interference, corruption, and bureaucratic delay. 51 Second, interventions for one purpose frequently undermine other equally important objectives.
Strong judicial independence measures, such as the "one-roof" reform in Indonesia, may further insulate the judiciary from anticorruption and accountability measures .
52
Efficiency measures, for example, that integrate alternative dispute resolution may undermine values of publicity because settlements are confidential and normativity because no judgment is produced to shape the law applicable to others.
53
Finally, reforms may completely backfire.
According to a former Chief Justice of the Indian Supreme Court, the Court's refusal to allow the executive branch to play any role in judicial promotions has led to more interference , not less. 54 Severely repressive anti-corruption measures, such as in the People's Republic of China, may drive illicit behavior further underground and enhance those with power and discretion in those systems to extract rents from those vulnerable to attack.
55
Additionally, efficiency measures may have a paradoxical effect: by making the courts and appended processes more attractive to disputing parties, reformers may unintentionally attract larger numbers of litigants who would otherwise have settled or lumped their disputes. [*365] Thus, antibacklog measures may unintentionally create new backlogs. 56
4. U.S. model in Indonesia fails.
Tim Lindsey , Director, Asian Law Centre, Assoc. Prof. of Law, U. Melbourne, May 2004 . [Asian-Pacific Economic Literature
18(1), Legal Infrastructure and Governance Reform in Post-Crisis Asia: The case of Indonesia, p. Blackwell]
The objectives of Governance reform are of universal relevance for this transplantation process: given the choice, almost everyone would prefer to live in a transparent system where the government is made accountable and where courts offer fair and equitable solutions to private and public disputes. This does not, however, mean that models of rule of law or even individual laws or institutions—however effective they may be in fulfilling governance objectives in their home jurisdiction—will have the same effect in a different jurisdiction, particular if the target economy is developing and its institutions are relatively less sophisticated.
As Teubner (1998) puts it, legal transplants are 'legal irritants': they will always perform differently in their new host jurisdictions.
The Supreme Court's difficulties with judicial independence and the struggle of the Indonesian Ombudsman and the Indonesian
Competition Commission to define their new roles, ones derived from Common Law models, demonstrate this well.
For every action there is an equal and opposite government program – Bob Wells
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AT: COLUMBIA MODELING GOOD
1. No modeling—Colombia beat us to it.
Human Rights News 11-28-2001. [“Fact Sheet: Past U.S. Criticism of Military Tribunals,” p. http://www.cnss.org/rumsmtp1202.htm]
Colombia's use of faceless prosecutors, judges, witnesses and attorneys in cases of narcotics trafficking, terrorism, kidnapping, subversion and extortion during the early and mid-1990s has been criticized in the Country Reports. The 1996 Report noted that,
"it was still difficult for defense attorneys to impeach or cross-examine anonymous witnesses, and often they did not have unimpeded access to the State's evidence."
2. Increased independence causes backlash and kills judicial credibility.
Luz Estella Nagle, Assistant Professor of Law, Stetson University College of Law, Spring 2k. [30 Cal. W. Int'l L.J. 345, The
Cinderella Government: Judicial Reform in Latin America, p. Lexis]
Attempts by the judiciary to take an activist or independent role have been ugly and embarrassing . In Colombia in 1991, a new constitution created a constitutional court to interpret the constitutionality of a wide range of political and social issues. In 1994, the court legalized personal possession and use of illegal drugs. This decision was based on dubious legal reasoning, 145 and elicited domestic and international outcry. In response, the executive branch labeled the court a loose cannon of State, and the illconceived decision appeared to confirm to the world the widely held belief that Colombia was nothing more than a narcodemocracy.
[*372] When the judiciary has been bold enough to go after government corruption, the other two branches have been quick to condemn the court, and challenge its sanity. For example, a case in point are the judicial proceedings in Colombia in 1997, referred by the press as "Case 8000." These proceedings consisted of faceless courts 146 that launched an in-depth investigation into political corruption caused by the infiltration of narco-trafficking. 147 Many politicians and officials connected to the Presidential administration of Ernesto Samper, including the President himself, were accused of illicit enrichment from the Cali Cartel. 148
Many of the accused were tried, convicted, and sentenced, including a former Attorney General who was fined and sentenced to eight years in prison for illicit enrichment in connection with bribes received from drug lords. 149
3. Corruption by exortion—deaths threats mean no decisional independence.
Maria Dakolias, counsel, World Bank Legal Dept., and Kim Thachuk, judicial reform advisor, Spring 2k. [18 Wis. Int'l
L.J. 353, The Problem of Eradicating Corruption from the Judiciary, p lexis]
In addition, in countries such as Italy and Colombia, for example, there is the problem of corruption by extortion. In Colombia, public officials may be the victims of Plomo o Plata ("lead or silver"); indicating an option between a bullet or a bribe). They may be forced by threats that unless they use their position to bring about a favorable outcome for criminals, they will be killed; making a bribe the more favorable option. Thus, independence is not only undermined by bribery but intimidation as well. For example, 57 judges in Columbia have been murdered in the last 5 years. 18 With this fear, judges cannot make decisions free from influence.
Inevitably such a system only operates to serve criminals who have at their disposal the availability of various channels of informal bureaucracy where charges may be delayed forever and evidence lost outright. The result is a general lack of trust by the general public and cynicism towards the government in general and the criminal justice system in particular, as it is the ability of the government to lend legitimacy to its policies that is seriously in question. 19 At their most basic level, governmental policies are generally regarded as legal obligations that command the loyalty of citizens. However, if the government is not itself limited by its own laws, or its members or other groups are perceived as being exempt or above the laws, the belief in the 'rightness' of the government--the legitimacy accorded it by the people--will be seriously lacking. Hence, a breakdown in the relationship between the authority of the government and the legitimacy leant it by the people ensues.
For every action there is an equal and opposite government program – Bob Wells
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AT: AFRICA MODELING GOOD
1. Modeling won’t work—judicial constitutionalism is handicapped on all sides.
H. Kwasi Prempeh, Assoc. Prof., of Law, Seton Hall University School of Law, March 2006. [80 Tul. L. Rev. 1239,
Marbury in Africa: Judicial Review and the Challenge of Constitutionalism in Contemporary Africa, p. lexis]
At the same time, contemporary constitutions, by failing to design credible checks and balances within the political half of the state, place a disproportionate weight of the burden of promoting and sustaining constitutionalism on the African judiciary.
What is yet to be seen is whether the African judiciary, in its present state, can deliver on this expectation.
As judicial review requires private commencement of an appropriate suit before adjudication of the matter by a court of competent jurisdiction, threats to effective judicial enforcement of a constitution can come from both the "demand side" (private parties) and the "supply side" (the courts). In common law Africa, judicial review - and thus juridical constitutionalism - is indeed imperiled by severe handicaps from both demand and supply sides.
2. Judicial review kills democracy—resilience of military and colonial laws means enforcement threatens constitutional rights.
H. Kwasi Prempeh, Assoc. Prof., of Law, Seton Hall University School of Law, March 2006. [80 Tul. L. Rev. 1239,
Marbury in Africa: Judicial Review and the Challenge of Constitutionalism in Contemporary Africa, p. lexis]
At the same time, threats to constitutional rights abound, thanks to the continued existence in Africa's reforming states of a huge inventory of oppressive legislation from the era of authoritarian regimes. Across common law Africa, sedition, criminal libel, and other such laws enacted by authoritarian regimes for purposes of political repression remain on the books. 262 Some of these laws date as far back as the colonial period. 263 This state of affairs arises from the continued recourse to the practice, first used in the transition from colonialism to sovereign statehood, of inserting a "savings" clause in each new constitution to hold over and presume valid all laws from the [*1298] old regime until they are challenged and found unconstitutional on a case-by-case basis.
264 Under conditions of gross underenforcement of the constitution by means of private litigation, legislative repeal or amendment would seem the most appropriate response to the problem of obnoxious laws held over from the past. However, Africa's democratically elected governments have done little to purge the statute books of such repressive legislation, creating a situation parallel to that in the immediate aftermath of colonialism when colonial-era laws, many of them designed for repression, remained in force alongside relatively more rights-friendly independence constitutions. Africa's politicians generally share the attitude that it is for the courts to rule legislation unconstitutional when a proper suit is brought, and until that has been done, the laws on the books may continue to be enforced. Despite the existence of national law reform commissions across common law Africa, the work of these commissions is rarely integrated into the national legislative process. 265 In countries with a long experience of military rule, like Nigeria and Ghana, this problem has created the anomaly of military decrees constituting a disproportionately large percentage of currently valid statutes. 266 Although some of these laws may eventually fall into desuetude, the fact that they remain on the books creates a continuing risk of arbitrary and selective enforcement. 267 In fact, some of Africa's new democratically elected governments have not hesitated to retrieve from the shelves and selectively enforce some of the old laws.
268
3. No social legitimacy means no enforement.
H. Kwasi Prempeh, Assoc. Prof., of Law, Seton Hall University School of Law, March 2006. [80 Tul. L. Rev. 1239,
Marbury in Africa: Judicial Review and the Challenge of Constitutionalism in Contemporary Africa, p. lexis]
In short, while positivistic legitimacy is not a problem for the modern African court exercising judicial review, social legitimacy remains a challenge. This longstanding deficit in the courts' social legitimacy is problematic because the judiciary cannot rest the efficacy of its judicial review power solely on positivistic legitimacy. Even with their newly enhanced powers of judicial review,
Africa's postauthoritarian courts cannot play as effective a role as they must in the promotion of constitutionalism until they can make themselves useful to all citizens.
4. Power of the purse—courts are dependent for resources.
H. Kwasi Prempeh, Assoc. Prof., of Law, Seton Hall University School of Law, March 2006. [80 Tul. L. Rev. 1239,
Marbury in Africa: Judicial Review and the Challenge of Constitutionalism in Contemporary Africa, p. lexis]
On an institutional level, Africa's new constitutions all honor conventional separation-of-powers principles by organizing the courts into a separate, self-managed branch of government with exclusive functions and jurisdiction. In practice, however, the judiciary, lacking the power of the purse, must depend on the legislative and executive branches for the resources with which to operate. 290 In Africa, this dependence is made worse by the fact that the judiciary has historically been severely under-resourced, leaving it with inadequate and outmoded technology, dilapidated and overcrowded courthouses and offices, and underpaid judges and staff. 291
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
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AT: NIGERIA MODELING GOOD
1. No modeling—Nigeria’s had tribunals since ‘66.
Human Rights News 11-28-2001. [“Fact Sheet: Past U.S. Criticism of Military Tribunals,” p. http://www.cnss.org/rumsmtp1202.htm]
The State Department condemned Nigeria following the conviction and execution of author and minority rights activist Ken Saro-Wiwa and eight other activists before a specially constituted tribunal in which a military officer was one of three judges. The US ambassador was recalled for consultations and sanctions on the
Nigerian regime were extended. Special tribunals in Nigeria, including military tribunals, became commonplace during the periods of military rule from 1966 to 1979 and 1983 to 1999, and had jurisdiction over offenses such as civil disturbances, armed robbery, some categories of corruption, coup-plotting, and illegal sale of petroleum . Many military decrees also included "ouster clauses" providing that government decisions could not be questioned in a court of law. In the Country Reports for 1996, the State Department noted that, in Nigeria, "in practice tribunal proceedings often deny defendants due process." In a statement before the House International Relations Committee in 1998, Assistant Secretary of State for
African Affairs Susan Rice stated that, "military tribunals denied due process to political and other prisoners" in Nigeria.
2. Infrastructural deficiency blocks independence.
Okechukwu Oko, LL.M., Prof. of Law, Southern University Law Center, 2005. [31 Brooklyn J. Int'l L. 9, Seeking Justice in
Transitional Societies: An Analysis of the Problems and Failures of the Judiciary in Nigeria, p. lexis]
Infrastructural deficiencies such as aging, deteriorating and ill-equipped physical facilities s everely undermine the fair and speedy administration of justice . 162 Justice can hardly be speedy when judges lack adequate facilities to enable them to function effectively and efficiently. 163 A study conducted by Human Rights Watch found: Court facilities are hopelessly overcrowded, badly equipped, and underfunded. Interpreters may be nonexistent or badly trained. Court libraries are inadequate. There are no computers, photocopiers, or other modern equipment; and judges may even have to supply their own paper and pen to record their judgment in longhand. If litigants need a transcript of a judgment for the purposes of an appeal, they have to pay for the transcript themselves.
164 Infrastructural deficiencies in Nigeria undermine the search for a fair trial in several ways. First, poor infrastructure permits, if not encourages, corruption. 165 Records of court proceedings and judgments are stored in [*43] less than satisfactory conditions, thus making them susceptible to damage or intentional destruction by unscrupulous citizens. 166 Absence of modern facilities provides an enabling environment for corrupt and unethical court officials to tamper with evidence and even court records. 167
Allegations of tampering with court records forced the Court of Appeal to order that a "handwritten judgment it delivered on the matter" must be tendered for scrutiny. 168
3. Expecting justices to act is futile—must come from executive.
Okechukwu Oko, LL.M., Prof. of Law, Southern University Law Center, 2005. [31 Brooklyn J. Int'l L. 9, Seeking Justice in
Transitional Societies: An Analysis of the Problems and Failures of the Judiciary in Nigeria, p. lexis]
Nigerians have come to realize that it is the attitude of the executive and its willingness to respect the integrity of the judicial process and refrain from interfering with the judiciary that nurtures the independence of the judiciary rather than constitutional provisions and self-serving declarations by politicians. 323 In a system where judges are fearful of the executive, it is futile to expect them to exercise the level of independence needed for them to engage in impartial and dispassionate resolution of conflicts. 324 The climate of intimidation, manipulation and control of the judiciary by the executive often forces judges to engage in a cost-benefit analysis with potentially disastrous consequences for the integrity and independence of the judiciary. 325 Judges have to choose between commitment to justice and risking the ire of the executive or demonstrating their fealty to the executive . Most judges have succumbed to the notion [*74] that career development depends on how they rule, especially in high profile cases involving the government. 326 Judges cast in this mold prefer to demonstrate their loyalty to the executive, sacrificing the dictates of justice in an attempt to appease the executive, and thus, maintain their viability in the system. 327 This explains the lack of independence despite the constitutional provisions designed to secure the independence of the judiciary.
328
\
4. Greatest threat to rule of law is corruption—Nigerian justices are already independent.
Okechukwu Oko, LL.B., Assoc. Prof., Southern University Law Center, Winter 2004. [35 Rutgers L. J. 569, The Problems and Challenges of Lawyering in Developing Societies, p. lexis]
The hopes of building a better society through the law rest mightily on the shoulders of the judiciary.
331
By checking executive and legislative excesses, the judiciary acts as a brake upon the abuse of power as well as a protector and guardian of rights and liberties.
332
Relying on the judiciary to protect rights and check legislative and executive excesses may well be ineffectual unless the necessary conditions exist for the judges to administer justice fairly and efficiently. 333 Just as judicial review enables the courts to check the excesses of both the legislature and the executive, it also possesses tremendous potential for harm.
334 Improper exercise of judicial powers resulting from either incompetence or corruption will frustrate efforts to improve society through the law . 336 Competent, well equipped, and judges engage in neutral, impartial, and dispassionate application of rules to concrete cases. 337 When judges function in less than ideal situations, including lack of independence, corruption, interference, and poor public perception, the judiciary runs a grave risk of imperiling the democratic process. 338 A corrupt, ill-equipped, and insecure judiciary can easily turn into a pliable tool of the executive and frustrate citizens' efforts to enjoy the full panoply of rights guaranteed by the constitution. 339 Nigeria must therefore institute measures that guard [*632] against the debit side of judicial review. Measures already in place are quite commendable. The Nigerian
Constitution bolsters certain concepts that are vital to the establishment of an independent judiciary.
Nigerian judges enjoy security of tenure and judicial independence, 341 and removal 342 of judges is relatively immune from external influence. Powers and jurisdiction of courts are set by the constitution and can neither be abridged nor curtailed by the executive.
343
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
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AT: PAKISTAN MODELING GOOD
1. No modeling—Pakistan rejects U.S. policies.
Dr Chintamani Mahapatra, Ph.D. Institute for Defence Studies and Analysis, 3-6-2007. [Central Chronicle, Growing US concerns over Pakistan http://www.centralchronicle.com/20070306/0603302.htm]
Despite these difficulties, it is useful for fighting terror. Pakistan is the hotbed of terrorist training camps and Pakistan-trained
Islamic extremists can be found in the nook and corner of the globe. Unless the Pakistani Government is co-opted in the war against extremism and terrorism, the task would remain unfulfilled. The dilemma for the Bush Administration is how to befriend
Musharraf, while not generating anti-Americanism among the Pakistani people. The Pakistani opinion against the US policies is one of the worst in the world and massive amount of US assistance to that country has not won the hearts of people.
2. Problems with Pakistans’ judiciary are too entrenched.
Livingston Armytage, Director of the Centre for Judicial Studies, fmr, team leader, Strengthening of Institutional Capacity
for Judicial & Legal Reform project, 4-14-2003. [13 th Commonwealth Law Conference, Pakistan’s Law & Justice Sector
Reform Experience]
Over the past thirty years, it is generally acknowledged that the law and judicial sector has been chronically under-funded. The institutions of justice have been degraded and this has impaired the quality of judicial services. Moreover the stature, independence and integrity of the courts has on occasion been seriously compromised which has, in turn, led to a loss of public confidence in the institutions of justice despite the best efforts of many dedicated judges. This malaise is manifest in a complex of related problems.
Most notably, this includes monstrous backlog exist throughout the courts with chronic delays in disposal of cases of five, ten, even twenty-plus years. In one court we surveyed the grandchildren of the original litigants continuing to dispute an interest in land some sixty (60) years after institution of proceedings. Other problems include major shortages of judges and courthouses, grossly inadequate facilities, and a dismal system of compensation, giving rise to complaints of endemic corruption. These problems, which are now deeply entrenched, will require substantial long term interventions to resolve.
For every action there is an equal and opposite government program – Bob Wells
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AT: EGYPT MODELING GOOD
1. Egyptian democratizers want nothing to do with the U.S.
Jerusalem Post 3-4-2007. [Democracy, Egyptian-style, p. http://www.jpost.com/servlet/Satellite?cid=1171894570605&pagename=JPost%2FJPArticle%2FPrinter ]
ON ONE POINT, however, Egyptian reformers agree with the autocrats and theocrats: On the surface, at least, they share a critical attitude toward American democratization efforts in the Middle East. They consider American optimistic announcements of an
"Arab spring" in 2005 - triggered by Lebanon's "Cedar Revolution," unprecedented elections in Iraq and the Palestinian territories, and Egypt's first multi-candidate presidential election in 50 years - wishfully premature.
Judging by the visa lines at the embassy, Egyptians still relate to America as a land of opportunity. But resentment at what
Ibrahim, for instance, calls a "misinformed and excessively ideological" democratization strategy runs high.
2. No democratic breakthrough—Judges’ Party always compromise.
Nathan Brown, Prof., Poli. Sci. and Int’l Affairs, George Washington U., Senior Assoc., Carnegie Endowment, 6-8-2006.
[JURIST, Unlikely Reformers: Egyptian Judges Challenge the Regime, p. http://jurist.law.pitt.edu/forumy/2006/06/unlikely-reformers-egyptian-judges.php
]
Over the past few weeks, an unlikely player has taken center stage in the struggle against authoritarianism in the Arab world: the
Egyptian Judges Club. Street demonstrations, arrests of dissidents, attempts to form opposition coalitions — all the familiar signs of embryonic democratic transitions — have taken place, quite literally, just outside the country’s high court building. In the course of political conflict, some of Egypt’s leading judges have been drawn into an increasingly risky struggle with the executive branch. But judges are rarely revolutionaries , and Egypt’s judiciary is no exception: despite the international attention their stance has attracted, the current confrontation is more likely to result in compromise than democratic breakthrough.
3. No modeling—ample opportunity to strike down military courts and judges backed down.
Tamir Moustafa, asst. prof. pol. Sci., U. Wisconsin-Madison, Fall 2003. [28 Law & Soc. Inquiry 883, Law versus the State:
The Judicialization of Politics in Egypt, p. lexis]
The Supreme Administrative Court ruling, the SCC interpretation of law 25/1966, and the failure of the SCC to produce a timely ruling on the constitutionality of civilian trials in military courts clearly illustrate the limits of political reform through judicial channels. Administrative court judges typically defend civil liberties and human rights whenever they can, but they are ultimately constrained by the web of illiberal legislation issued by the regime. As a civil law institution charged with administering the law and not practicing stare decisis, the administrative courts have limited room for maneuver. Given these constraints, it is quite impressive how far they have been able to check state institutions. The SCC, on the other hand, is not bound by illiberal legislation
(though some articles of the constitution itself can be considered illiberal), but SCC justices must nonetheless look after their longterm interests vis-a-vis the regime and pick their battles appropriately. 48 Although the Supreme Constitutional Court had ample opportunities to strike down the provisions denying citizens the right of appeal to regular judicial institutions, the SCC almost certainly exercised constraint because impeding the function of the exceptional courts would likely have resulted in a futile confrontation with the regime.
For every action there is an equal and opposite government program – Bob Wells
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AT: MIDDLE EAST MODELING GOOD (DEMOCRACY)
1. No democracy—independence trades-off with accountability.
Nathan J. Brown, Prof., Poli. Sci. and Int’l Affairs, George Washington U., Dec. 2001. [Mechanisms of Accountability in
Arab Governance: The Present and Future of Judiciaries and Parliaments in the Arab World, p. http://www.pogar.org/publications/governance/nbrown/mechanisms.pdf]
Ironically, to the extent that Arab states fulfill their promises of guaranteeing judicial independence, they raise another, quite different issue of accountability: the accountability of the judiciary itself. Systems that are based on “checks and balances” rather than “separation of powers” hold the various branches of government accountable to each other. A “separation of powers” approach eschews such an approach in favor of stricture boundaries among the branches. Almost all Arab states follow a
“separation of powers” approach. Thus, in the Arab world, the head of state does not depend on the confidence of the legislature, and the legislature is generally independently elected. Each is therefore theoretically accountable to the people through electoral mechanisms (or, in a few cases, monarchy is preferred). However, popular election of judges is generally considered an affront to the professionalism of the judiciary. Discussion of popular participation in the judicial process is generally firmly rejected by Arab judiciaries. Election of judges, appointment of non-professional judges, and the jury system are all anathemas to Arab judiciaries.
2. Financial dependence trumps other forms of independence.
Adel Omar Sherif, Ph.D., President, Commissioners’ Body, Supreme Constitutional Court of Egypt, and Nathan J. Brown,
Ph.D., Prof. Poli. Sci., George Washington U., Sept. 2002. [Judicial Indepenence in the Arab World, p. www.pogar.org/publications/ judiciary/sherif/jud-independence.pdf]
Most judiciaries in the region complain that they do not receive adequate resources. Just as important from the point of view of judicial independence, they do not have full control over the resources and are dependent on the executive (often the Ministry of
Justice) which becomes far too mired in internal judicial matters. Even judiciaries that have attained a significant degree of formal independence often find this achievement undercut by less visible aspects of dependence.
3. Political exploitation—leaders use liberal reforms for illiberal ends.
Nathan J. Brown, prof., poli. sci, George Washington U, 1997. [The Rule of Law in the Arab World: Courts in Egypt and the
Gulf, p. 130]
In fact the historical experience of the Arab states of the Gulf demonstrates the lessons of the Egyptian experience are more of general applicability. Legal reform first and foremost served state-building purposes; imperialism and liberalism were at best of secondary importance. Even with more favorable terrain for imposed law, the British failed in their attempt to construct Gulf legal systems on an Anglo-Saxon rather than Egyptian (and French) model, largely because of decisions made within the local political systems. As in Egypt, autocratic regimes have increasingly operated in a legalistic manner, able to bend institutions of liberal legality to serve non-liberal ends. Efforts have occurred (in Bahrain in the 1950s and in Kuwait over the past decade) to use the legal system to liberal ends; such efforts have no succeeded.
4. Democratization wouldn’t decrease Mid-East conflict—counterfactual analysis demonstrates
Michael Hudson , Professor of International Relations and Seif Ghobash Professor of Arab Studies at Georgetown University, 19 95 ,
Democracy War & Peace, p. 210-211
If Arab regimes had been “democratic” in the manner stipulated above, would they have pursued policies vis-a-vis Israel other than the ones they have actually pursued? Generalizing very broadly, I am inclined to answer “probably not?’ If we first consider the Arab-Israeli saga from the Rhodes armistice agreements of 1949 up through 1967, a period when Israel was bent on demonstrating not just its survival capacity but its toughness, it is difficult to imagine political parties in a competitive environment calling for compromise. Indeed, the accommodations sought discreetly in the mid-1950s by the authoritarian Egyptian and
Jordanian regimes would have been less likely under leadership more affected by public opinion. Would more representative regimes have been able to avert the Sinai-Suez war of 1956, the Six Day War of 1967 or the War of Attrition along the Suez canal in 1969—70? It seems unlikely, because the perceptions of objective threat were so intense and pervasive among government decision-makers, but also— and crucially—because popular feelings on all sides were, to say the least, amenable to military action. It seems implausible to me that a democratic regime in Egypt would have been willing or able to curb domestic resistance to Britain’s continuing presence in the Canal Zone, the cycle of low-level violence on the Egyptian-Israeli border, and Egypt’s support for the Algerian rebellion against France—events that precipitated the tripartite (Israeli, French, and British) aggression against Egypt in 1956.
For every action there is an equal and opposite government program – Bob Wells
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AT: BURMA MODELING GOOD
1. No modeling—Burma’s military courts pre-date Bush tribunals.
Human Rights News 11-28-2001. [“Fact Sheet: Past U.S. Criticism of Military Tribunals,” p. http://www.cnss.org/rumsmtp1202.htm
]
The State Department described the Burmese court system, in its most recent Country Reports as "seriously flawed, particularly in the handling of political cases," where trials are not open to the public and military authorities dictate the verdicts. SLORC Order
7/90 allows commanders to try Buddhist clergy members before military courts for "activities inconsistent with and detrimental to
Buddhism." The Burmese government justifies all such trials by citing threats to national unity and security.
2. Banning military courts empirically fails—justices have no structural independence.
Myint Zan, Sessional Lecturer Int’l Law, School of Law, Deakin U., Feb. 2k. [1 Asian-Pacific L. & Pol'y J. 5, Judicial
Independence in Burma: No March Backwards Towards the Past, p. lexis]
Further, SLORC abolished the "People's Courts" system that was in force since 1972. SLORC renamed the courts by dropping the term, "People's." The author has also learnt, though it cannot be cited with reference to published sources, that apparently, in nonpolitical, non-security cases, professional judges (i.e., those with legal qualifications) are now presiding in the civilian courts. In political cases, however, the defendants are tried in military tribunals and courts. 100 Even after the abolition of military courts, the judges do not and were not able to exercise any degree of judicial independence. A jurist, who has written a detailed report, stated that judges are "in practice subjected to tight control by SLORC at all times. Judges enjoy[] no tenure of office, and [are] under clear instructions to take the lead from their military masters in the discharge of their functions." 101 The International Commission of Jurists also reported that most cases are tried in a summary manner and that verdicts are determined in advance of the trials. 102
Another report by Asia Watch stated that sixty-two judges were reportedly deprived of office in 1989 after failing to comply with
SLORC instructions to sentence political dissidents to prison terms longer than those permissible than in the prescribed laws. 103
3. Executive backlash—judicial power means judges removed.
Myint Zan, Sessional Lecturer Int’l Law, School of Law, Deakin U., Feb. 2k. [1 Asian-Pacific L. & Pol'y J. 5, Judicial
Independence in Burma: No March Backwards Towards the Past, p. lexis]
Read together, the NCDC's removal provisions permit the President (1) to instruct the Chief Justice or Judges of the Supreme
Court to resign or (2) to remove them from office without the approval of the Hluttaws or after approval through successful impeachment by the Hluttaws . Such a Presidential power is not conducive to a real independence of the judiciary. In contrast, under the 1947 Constitution, the President could only remove a judge of the High Court or Supreme Court after a Special Tribunal had investigated and approved the charges and a majority of Parliament members in joint session had approved the charges. 121
For every action there is an equal and opposite government program – Bob Wells
