Friday, August 18, 2017

Constitutional courts: you need an impartial umpire

How important is constitutional review and the role of the Constitutional Tribunal in the democratisation process?

Constitutional review is extremely important in the process of democratisation. It is not a pure coincidence that all major waves of democratic reform around the world recently witnessed also the emergence of powerful constitutional tribunals. Think about South Korea or Taiwan – where constitutional courts have played a vital role in explaining the mechanisms of democracy to political classes.

Think about South Africa, where the Constitutional Court became the central agent for change. Think about constitutional courts in Central and Eastern Europe where, after the fall of Communism in 1989 and immediately after, all newly democratised countries set up constitutional courts which became, at least in some of the countries – Poland, Hungary and Czech Republic – very powerful. They largely helped steer the country through the process of transition.

Should we abide by the decision of the tribunal, even if many people think the decision is incorrect?

When it comes to the interpretation and understanding of the constitution, it is necessary to have an impartial umpire whose rulings will be taken as valid. We may assume that judges are less self-interested in providing a particular interpretation of unclear or contested constitutional notions and so it is good for the political system as a whole to stick to their determinations – even if someone believes they made a mistake. Sometimes holding on to one and the same determination is better than trying to achieve “the best” outcome – because in politics, reasonable people may disagree about what is “the best”.

This can be seen in the case decided by the Constitutional Tribunal of Myanmar of March 28, 2012 (submission no. 1/2012). I cannot really comment on the substance: the matter decided concerns a rather fine point of constitutional interpretation: namely, whether the committees, commissions and other bodies set up by each hluttaw can be understood as “union-level organisations” in the constitutional sense.

This is, in my view, not a matter of absolutely central significance for the political life of Myanmar – but the interpretation provided by the Constitutional Tribunal is extremely important because it provides everyone with an authoritative reasoning about how to understand the constitution. The tribunal has engaged in an interpretation referring to the legislative intentions, which is perfectly understandable.

I find the quality and the seriousness of the tribunal’s reasoning admirable.

There is a lot of discussion about the need for rule of law in Myanmar. But how important will judicial independence be in Myanmar’s transition process?

It is perhaps the most important of all.

If the judiciary is not independent – if there is pressure exerted on the judges, or if they fear for their security, or if they have strong incentives to favour one or another political party – their role as independent arbiters is undermined.

How should a democratising country like Myanmar go about encouraging an independent judiciary?

Judges should be appointed in a way that minimises their dependence on the executive branch. They should be reasonably well paid (within the limits that the state budget can afford) so that their temptations for corruption are minimised. Their tenure should be assured – either for a long but limited term (with no possibility for reappointment) or permanently, until the retirement age.

But the main guarantee lies in the political culture on the part of the executive and legislative branches: politicians should know that any attempt to influence or threaten judges is absolutely inadmissible.

In terms of impeachment of members of the judiciary – what kind of a process should that be and when should it be used?

Impeachment should be a method of the last resort – and used only in extreme circumstances. A procedure for impeachment should be such that a different political body initiates the process (for instance, the legislature or the executive) and a different body takes a final decision (a court).

In such a way, a possibility of using impeachment for political purposes or as vengeance is avoided.

About Professor Wojciech Sadurski:

A Challis professor in jurisprudence at the University of Sydney, Professor Sadurski is also a professor at the Centre for Europe in the University of Warsaw, and is a visiting professor at the University of Trento, Italy, and Cardozo Law School in New York.He was a professor of legal theory and philosophy of law in the Department of Law at the European University Institute in Florence from 1999 to 2009. He has also taught as visiting professor at a number of universities in Europe, Asia and the United States. He has written extensively on philosophy of law, political philosophy and comparative constitutional law.He visited Myanmar last year and met several political leaders, including Daw Aung San Suu Kyi.