Category Archives: courts

Cowardly Courts?

As I’ve written before, Burma’s judiciary seems not to have reformed at the same pace as the rest of the political system. Several recent articles have highlighted this. The Irrawaddy reports that the Supreme Court dismissed a Kachin woman’s case against a local military battalion without even informing her lawyer! The Guardian notes that judges haven’t been merely passive victims, but rather participants in the network of corruption:

The problem in Burma today is not that judges are struggling to be independent against a heavy-handed regime, but rather that judges are part and parcel of decades of a military governing system. Judges routinely impose unjustified sentences in political cases, allowing them to keep their jobs and access to the benefits of a corrupt system.

As I’ve said before, this reminds me a bit of Indonesia right after Reformasi. There, granting courts judicial independence effectively insulated the system of corruption that existed within the bench and prevented outside actors, such as the Judicial Commission, from forcing reforms. As such I strongly believe Burma should take steps to improve the quality of the judicial system before moving towards robust independence.

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Filed under Burma, courts, judicial independence, Myanmar

Book Review: Courts: The Final Word

Martin Shapiro’s Courts: A Comparative and Political Analysis is one of those special books that changes the way scholars view a particular subject. Typically, political scientists and lawyers have considered courts independent, apolitical institutions that apply predetermined legal rules in a rational manner. Shapiro turns this narrative upside-down. He shows that courts are in fact political actors that respond to political incentives. He begins Courts by discussing the conventional prototype of courts. He shows that some element of consent is required for legitimate dispute resolution. In tribal societies, this was resolved by direct consent obtained by the “big man” adjudicator from each of the parties. Losing parties would abide by the decision because they had agreed in advance and because they are part of the same social fabric. In modern societies, when parties might come from different parties of country – or even across the world – it becomes more difficult to compel them to accept an adjudicator’s judgment. Governments had to increase the power of judges to compel losing parties to appear at trial and obey judgments. However, in order to compensate for this lack of consent, Shapiro argues governments were forced to grant judges some element of independence. Fairness and justice compensate the parties for their lack of consent and therefore losing parties generally at least grudgingly comply.

In particular, Shapiro focuses on disproving four common misperceptions about courts. First, he claims that all courts have limits on their independence and that no judge is truly separate from politics. In order to demonstrate this, he discusses the English judicial system, widely regarded as one of the more independent. In fact, Shapiro shows how English courts have been subordinated first to the King, and then to Parliament. While Parliament seldom interferes in the daily administration of justice, it does pass broad laws limiting the discretion of judges and preventing them from reviewing administrative acts. Increasingly, judges can no longer “create” the common law, as had been the norm in the 18th century, but rather must apply parliamentary decrees. In fact, (at least when Shapiro was writing) there had been extremely few cases in which judges challenged administrative agencies on any politically sensitive matters.

Next, he questions the concept of judges passively applying predetermined legal rules. Here, he discusses the European civil law systems, particularly France, in which judges are presumed to simply apply the text of the legal code. Here he shows that even civil law judges must fill in gaps and interpret ambiguities within the supposedly comprehensive code in order to resolve individual cases. For example, French judges had routinely employed “creative interpretations” of the personal injury provisions in the code in order to reduce burden of proof on plaintiffs in automobile accidents. Some of their legal gymnastics would have made a common law lawyer blush. Civil law lawyers and judges might not refer to “jurisprudence” as the source of law, but in reality jurisprudence forms the basis for interpreting the code for specific factual situations.

Courts then looks at imperial China as a system that is commonly regarded as based on mediation rather than litigation. Many scholars of Chinese law claim that Chinese citizens are averse to litigation and prefer mediated settlements. Again, Shapiro shows how this stereotype neglects important institutional and cultural developments, such as the comprehensive Chinese penal code. Indeed, he argues that all legal systems combine elements of mediation and judging. Mediation at the lower levels in China was undertaken with the threat of litigation in the background. In official litigation, the magistrate could impose severe penalties even for petty crimes. This usually convinced parties to settle their claims and find a solution so as to avoid the harshness of the state. Neither party wanted to risk severe punishment in most cases. Rather than a cultural norm against litigation, Shaprio shows that this system was the result of strategic political design. Pushing most cases toward mediation provided the imperial bureaucracy with a cost-effective mechanism to handle disputes and minimize the number of officials on the imperial payroll.

Finally, Shapiro argues that some system of judicial appeal is crucial so that political elites can monitor adjudication and provide a chance to correct errors. Here, he looks at the Islamic legal system, which has often been portrayed as “kadi justice” dispensed only at the first instance level. Unlike the other great families of law, Islamic law is not unified and does not have a strict legal hierarchy. There is no Muslim pope and different philosophical schools issued competing interpretations of shari’ah. As such, there was little demand for appeals within Islamic law. Litigants could simply retry their case before a different judge (from a different school) – the ultimate in forum shopping. By contrast, appeals mechanisms have arisen in the Islamic world when the secular state has established an adjudication system (often to avoid the heavy burden of proof under shari’ah).

Courts is a great introduction to comparative courts as it covers the four main legal systems. However, Shapiro’s narrative probably shouldn’t be taken as the final word on the history of any of these legal systems. Shapiro’s goal is to argue that courts are political actors and the implications of that argument. This book is design to dismiss stereotypes and generate new theories. Indeed, it seems like every page contains a pearl of wisdom – or a great idea for a dissertation thesis.

Courts is a must for anybody interested in courts or the rule of law. It’s a tough read, but well worth it.

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Filed under courts, Martin Shapiro

Above the Law in Burma

My article on Burma’s constitution, Above the Law, was just published in The Irrawaddy. I published it under a nom de guerre (that sounds so much better than pseudonym) because I do hope to return to Burma at some point. However, I doubt Burmese military intelligence reads Rule by Hukum, so I think it’s alright to cross-post here.

The article was actually intended to be a brief synthesis of the longer law review article I am currently working on. I hope to finish a draft by February 2010, when I will present the paper at the Inaugural East Asian Law and Society Conference in Hong Kong.
Like this brief op-ed, my longer* article will apply political science theories about courts and constitutions to the 2008 Burmese constitution. One interesting possibility that I discuss in both articles is that the National Convention adopted a Constitutional Tribunal to serve as an additional veto player, blocking any state or hluttaw initiatives that might threaten the military’s interests. This could become particularly important because the new constitution adopts a quasi-federal structure, so it will be more difficult for the military to manage political elites than it has been in the strictly hierarchical army.

Thanks to Htet Aung and the rest of the Irrawaddy editorial team for working with me on the article. I also love Harn Lay’s graphic for the piece. Make sure to check it out here.

* The operative word being longer. I already have 10 pages written about Burmese legal history, but that only brings it up to independence in 1947.

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Filed under Burma, constitutional tribunal, courts, Myanmar