January 30, 2010 · 11:10

Book Review: Chile, Dictators, and Constitutions

Here’s a brief book review I just posted on Amazon.com about Constitutionalism and Dictatorship: Pinochet, the Junta, and the 1980 Constitution (Cambridge Studies in the Theory of Democracy) by Robert Barros. As I state in the review, the book presents a fascinating argument about constitutions in dictatorships, but doesn’t develop it well enough to apply elsewhere. As such, the book is probably only of interest to scholars of Chile’s history or hardcore constitutional law nuts. I will argue in an upcoming paper that Barros’ theory might help explain Burma’s new constitution (more on that later). Here’s the review:


In Constitutionalism and Dictatorship, Barros provides some fascinating alternative perspectives on courts in authoritarian regimes. He proposes that the Chilean Junta drafted the 1980 constitution i large part to institutionalize the junta and allocate power among all four branches of the defense services. Contrary to popular opinion, Pinochet did not wield absolute power, but rather all stakeholders in the junta limited their own power in order to convince the other branches that they would abide by the rules. Thus, the Tribunal Constitucional was created to enforce the authority of Pinochet in the executive and of the air force and navy as the legislative branch.

As a book though, I found Constitutionalism and Dictatorship both too long and too short. First, for those readers who know nothing about Chile – like me – it doesn’t provide much context. Barros frequently referred to other prominent politicians in the junta, but I didn’t have the context to appreciate some of his comments. The book seems geared toward readers with an interest and background in Chilean history. However, for readers primarily interested in constitutional theory, the book might seem a bit too long. The intricacies of the constitutional negotiations might be much. Indeed, Barros only gets to the tribunal 2/3 into the book. If you just want to understand his theory, I recommend reading one of his articles instead. 

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January 27, 2010 · 14:35

Burma’s Unjust Courts

Continuing with my theme of courts as persecutors, there’s another article from Irrawaddy about courts in Burma. Here are a few highlights:

Aung Thein, a prominent Rangoon lawyer, told The Irrawaddy on Tuesday, “There is no clear rule about counting days under arrest in Burma. Sometimes, Burma courts consider the custodial period as starting from the commencement of the trial…

Thein Oo, chairman of the [Burma Lawyer’s Council], told The Irrawaddy on Tuesday, “There is no doubt that the Burmese judicial system has deteriorated.

Fellow lawyer Aung Thein, said, “In fact, legal rights have suffered. The Burmese courts cannot control the prosecutors. The courts should obey and respect legal procedures. There must be checks and balances between the executive and judiciary.”

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January 22, 2010 · 17:15

The polarization of Thai courts

Asia Time’s Shawn Crispin has a new piece about the ongoing legal proceedings against former Prime Minister Thaksin. While much of the article focuses on the economics and corruption of Thailand’s telecom industry, there is some fascinating discussion of how both the Abhisit government and Thaksin-inspired opposition have co-opted “rule of law” language. Here are a few highlights:

The Thaksin-aligned, red-shirted United Front for Democracy Against Dictatorship (UDD)… has in recent weeks ramped up its criticism of perceived double standards in the justice system, conspicuously coinciding with Thaksin’s asset-case verdict. The exiled former leader cryptically said this week in a Thai-language message to his supporters that “there can be no peace in a society without justice”…

While the UDD complains about judicial double standards, some say it is ironic that Thaksin’s lawyers are in his defense relying chiefly on the sanctity of a previous Constitutional Court decision that was handed down while he was still in power. It was the same group of judges that ruled in 2001 to overturn a National Counter Corruption Commission decision that Thaksin had intentionally concealed his assets in a disclosure statement legally required of elected officials…

Then as now, Thaksin’s supporters put pressure on the legal proceedings through threats of chaos and street violence should the ruling go against him. Significantly, Abhisit and his top deputies have stood firm by rule-of-law arguments in settling the case, despite the UDD’s and Thaksin’s apocalyptic threats. 

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January 22, 2010 · 10:01

Why aren’t Southeast Asian courts like Pakistan’s?

Here’s an interesting article in the Economist about Pakistan’s Supreme Court. The court essentially seems to be trying to oust President Zardari by compelling him to return his corrupt gains. Pakistan has been run by military juntas or incompetent civilians. Until recently, many had dismissed the judiciary as a force for liberal politics. And yet… I’ve written elsewhere about how Pakistani courts have used Indian courts as a model for public interest litigation. The Supreme Court now seems inspired from its victory over General Musharraf to take on the country’s political elites directly.

What I find fascinating for the purposes of this blog is the comparison. Aside from the Philippines, relatively few courts in Southeast Asia have taken such an active role in political life. Certainly, the courts in the authoritarian regimes like Burma and Cambodia have not aggressively challenged political elites. Even in the quasi-democracies, such as Malaysia, the courts have treaded carefully. I find this last case the most interesting because, like Pakistan, Malaysia inherited its legal system from British common law – precisely the legal system most often associated with more powerful courts.[1] The aftermath of the High Court’s “Allah” decision illustrates the limits of the Malaysian judiciary tragically enough.

The closest case comes from Thailand. Thailand’s Constitutional Court was originally part of the progressive 1997 Constitution, but conservative elites have since co-opted it to combat populism. In 2007, the military launched a coup to overthrow populist Prime Minister Thaksin Shinawatra. While in power, the military gave the Constitutional Court extensive powers to police political parties and appointed sympathetic justices. When a reincarnation of Thaksin’s political party, the PPP, won 233 out of 480 seats in the subsequent elections, the court aggressively heard cases suggesting its candidates had violated constitutional requirements. In September 2008, the court forced Prime Minister Samak Sundaravej to resign because he was the host of a cooking program while serving in office. These decisions eventually forced the PPP out of power and installed the more amenable Democrat Party in power. [For a good overview of constitutional developments in Thailand, see Tom Ginsburg’s recent article].

I think one interesting court to follow will be Indonesia’s Mahkamah Konstitusi. The court is independent enough to strike down laws under the controversial Article 33 of the constitution. It hasn’t struck at politicians directly (except for deciding election disputes, which constitutes a large portion of its docket). The court might be well poised to fill part of the vacuum given  SBY’s diminished political standing. Even so, I doubt it will reach the excesses of Pakistan’s Supreme Court.

[1] Of course, there is considerable debate on this point, but I believe there is some credence to it. I recommend Martin Shapiro’s Courts for an overview of the differences between common and civil law courts.

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January 21, 2010 · 23:18

Freedom of Speech in Indonesia?

According to the Economist, Indonesia has revived the Suharto tradition of banning certain controversial books.  The list apparently includes everything from an expose of the 1965-66 massacres to shady financial dealings during SBY’s presidential campaign. Needless to say, the government justified this as necessary to preserve “national unity.”

Should the ban remain, this seems like an easy case for the Mahkamah Konstitusi. In a past petition for review of a censorship law (Law No. 8 of 1992), the court called censorship “behind the spirit of the times.” The court decided not to strike the statute down, but said it must be implemented in a manner that respects “democracy and human rights.” (MK Decision No. 29 of 2007). For more discussion of this case, see my previous post on Indonesian constitutional law.

Unfortunately, the court doesn’t provide much doctrinal rationale behind the decision. As such, it might also be instructive to consider how other countries handle free speech cases. For the moment, I won’t discuss U.S. First Amendment law – as today’s Supreme Court ruling shows, our unrestrictive interpretation of freedom of speech is something of an outlier in comparative constitutional law. Most countries have adopted a proportionality test to balance freedom of speech against other government policies. While each country has its own variant, Canada’s version, the most widespread, can be summarized as follows:

1) The objective of the law must be of sufficient purpose to warrant overriding freedom of speech

2) The means chosen must be reasonable and demonstrably justified:

a) The policy behind the law must have a rational basis;

b) The law must be the least restrictive means possible;

c) There should be a sense of proportion between the objectives and effects of the law.

In R. v. Keegstra, [1990] 3 S.C.R. 697, the Canadian Supreme Court used this approach to decide that prohibiting hate speech did benefit society more than the marginal value of permitting such speech.

I’ll let readers know if this new censorship case ends up in the Mahkamah Konstitusi. I’ll be particularly interested in seeing whether the court takes a firmer stand against this type of blatantly political censorship and lays out a clear legal test along the lines of Keegstra.

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