August 20, 2011 · 16:36

Blame the victim

A few months ago, I mentioned an appalling incident in which an Indonesian mob attacked and killed members of a religious minority sect, the Ahmadis. Sadly, the prosecution of the mob leaders has only deepened concern about Indonesia’s justice system. While prosecutors managed to obtain three-sixth month sentences for several of the mob, they also prosecuted one of the Ahmadi victims for resisting the mob and refusing police orders orders to leave the scene of the incident. In fact, according to The Jakarta Post, that Ahmadi received a six month sentence, longer than several of the perpetrators of the violence. Of course, local and international human rights groups have decried the sentence, but we’ll have to see how the Indonesian government responds. One thing is clear – while the Ahmadiyah is a small sect, how Indonesia treats it has become a huge test of Indonesia’s liberal democratic principles.

Comments Off on Blame the victim

Filed under indonesia, religion

August 17, 2011 · 21:28

Appointing Homogeneity

I’ve posted several articles criticizing the Philippine Supreme Court. One aspect I haven’t covered is the background of the justices themselves. In a new article in the Asian Journal of Comparative Law, Dante B. Gatmaytan and Cielo Magno argue that the justices overwhelmingly come from the same socioeconomic class. In fact, over 75% were graduates of the University of the Philippines. Moreover, all of the presidents since Marcos have drawn from this same pool, with little statistically significant difference between them on most factors.

Interestingly, some groups in the Philippines have proposed raising the threshold for disqualification for applicants to the Supreme Court. The proposal would allow more and more diverse candidates to apply. However, in a speech to the Judicial and Bar Council, Chief Justice Corona rejected the reforms as simply encouraging underqualified to waste the committee’s time.

Of course, one underlying question is how much diversity should be on the bench? As Ran Hirschl argues, more so than the political branches of government, judiciaries tend to attract lawyers with elite, non-populist backgrounds. Moreover, when political leaders face pressure from the bar and legal advocates, they also face pressure to appoint highly qualified individuals. These requirements already impose several filters on the types of individuals who reach the supreme court. Indeed, on the U.S. Supreme Court, despite the increased gender and racial diversity, all of the sitting justices attended Harvard or Yale…

Comments Off on Appointing Homogeneity

Filed under appointments, Philippines, Supreme Court

August 3, 2011 · 22:13

(Dissolve) Party Time

A few weeks ago, I’d mentioned a report about changes to Indonesia’s Mahkamah Konstitusi. In particular, the legislature passed a law stripping the court of its jurisdiction over election disputes, particularly dissolution of political parties. (Of course, this very function has been at the heart of Thailand’s constitutional politics recently). Now, some Indonesians seem to be rallying in support of the court. According to The Jakarta Post, Pong Harjatmo, a former actor, has asked the Constitutional Court to strike the law down. Pong alleges that, “The people vote for a political party during elections. But after the party wins and gains political control, the people seem to lose the right to control the parties”

This presents an interesting question about the relationship between democracy and judicial review. Many Western scholars bemoan judicial review as an undemocratic constraint on the popular will. However, in many cases, courts have acted to enforce rights that elected governments chose to ignore. Of course, one such case is the U.S. Supreme Court’s decision in Brown v. Board of Education to abolish segregation. Now, it seems some Indonesians hope their Constitutional Court can play a similar role, protecting them from the corruption and abuses so prevalent in Indonesian politics.

We’ll see whether these efforts are successful. The biggest question is whether Pong and his fellow protestors gather more support. So far, while Indonesians have complained about corruption, the Constitutional Court has been viewed as a minor player. It seems citizens would have to believe that the Court would play a larger role in enforcing fundamental rights in return for public support.

Comments Off on (Dissolve) Party Time

Filed under constitutional review, elections, indonesia

August 1, 2011 · 22:31

National courts, local antagonisms

The Indonesian Constitutional Court recently issued two important decisions with the potential to realign Jakarta’s relations with two troublesome provinces. In the first decision, the Court ruled that Aceh must allow independent candidates to run. Unique in Indonesia, Aceh permits local parties and local party candidates. However, the Court ruled that Aceh’s special status did not preclude independent candidates from exercising their rights. Second, the Court resolved conflicts between indigenous rights and democracy. The Court held that, despite an earlier law, Papua must permit direct elections for governor and vice-governor. The irony here is that the court, a national institution, is nominally protecting local suffrage. However, one could also view this as national elites interfering and even rewriting local rules. Indeed, in both cases the national government had negotiated special local autonomy provisions and then allowed the Constitutional Court to override them. For more analysis, see the International Crisis Group’s briefing here.

Comments Off on National courts, local antagonisms

Filed under indonesia

August 1, 2011 · 00:57

Hiding Lesse Majeste

The Thai Constitutional Court recently affirmed a decision to hold a lesse majeste prosecution in camera. On its face, this seems to violate Articles 29 and 40 of the 2007 Constitution, which guarantee a right to a public trial. The Court justified the restriction as only used to the extent necessary. However, it’s not quite clear what is necessary about it? Is the court worried about public repetition of libel? Are in camera trials the next phase in Thai judicial politics? The New Mandala blog provides an excellent legal analysis here.

Comments Off on Hiding Lesse Majeste

Filed under lesse majeste, Thailand