Category Archives: Supreme Court

5th Amendment Rights in China? (China)

Yes, I realize that China is not located within Southeast Asia. It is not and never will be a member of ASEAN. Nonetheless, the Chinese Supreme People’s Court’s recent actions might be of interest to students of judicial politics in Southeast Asia.

According to Reuters, he SPC has ruled that the use of torture to extract confessions is illegal. Interestingly, the SPC expanded the definition of torture to “the use of cold, hunger, drying, scorching, fatigue and other illegal methods” (Bush administration lawyers deemed that several of these methods did not to constitute torture).

On the one hand, the announcement is potentially revolutionary. Chinese police and courts have accepted confessions extracted through torture for millennia (the famous Judge Dee stories from the Tang Dynasty include several graphic torture scenes). On the other hand, as Reuters notes, there is likely to be resistance to the SPC’s announcement, especially from the state security system.

The announcement also raises questions about the SPC’s role in China’s legal system. The Court seemed to have a brief Marbury v. Madison moment in 2001 when it seemed to find a constitutional right to education (presumably making China’s 1982 Constitution enforceable). However, that decision also proved to be the last time the SPC interpreted the constitution. In 2010, the SPC officially withdrew the decision, presumably meaning it is no longer legally valid.

While I cannot claim to be an expert in Chinese law or politics, from what I understand the SPC’s current decision regarding torture is not an attempt to return to the activism of its 2001 decision, but rather represents a deliberate choice to focus reforming the system under its control. While the SPC might face resistance, judges do have the final word on accepting illegally obtained evidence, and hence share the blame for convictions obtained through illegal confessions. I suspect at the very least we will see more defendants claiming that their confessions were obtained through torture in the hopes that the judiciary will now act on their claims.

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The Toilet Incident (Indonesia)

Unfortunately, another day, another corruption scandal in Indonesia. According to The Jakarta Post, this time, Supreme Court justice candidate Sudrajad Dimyati was observed handing lawmaker Bachruddin Nashori of the National Awakening Party (PKB) an envelope while in a bathroom.

These instances of corruption are sad and frustrating for rule of law reformers in the country. However, they also raise an interesting theoretical question. Why do judges and lawmakers engage in cash transactions in order to effectuate political agreements? Given the risks in being exposed, why wouldn’t lawmakers make other compromises with judicial candidates? 
For example, in the U.S., there is often an implicit agreement that judges appointed to federal court will rule in politically acceptable ways (i.e., Democrats rule in favor of liberal causes, Republicans for conservative causes). This allows lawmakers to claim political credit for policy victories and minimizes the risk of scandal (after all, Democratic voters want judges to support their causes, and vice versa for Republican voters). 
I suspect part of the reason we don’t see such “policy-based corruption” in judicial appointments is that the Indonesian Supreme Court typically does not adjudicate politically salient issues. The court hears thousands of appeals each year, many of which deal with minor traffic issues or other criminal infractions. The justices have limited discretion over their docket (although my understanding is that some reforms are being proposed to exclude cases below a certain threshold). As such, we see little political mobilization around the content of Supreme Court decisions. 
The value of the decisions is relatively high for the litigants involved, but relatively low for other stakeholders. If I’m right, this means that if lawmakers are going to extract value out of judicial nominations, it must be at the nomination stage and not in future decisions. By contrast, I suspect Constitutional Court (Mahkamah Konstitusi) cases are more likely to affect policy and act as a veto on lawmakers’ policies. As such, in MK fit-and-proper tests, we do see MPs expressing more concern about how justices will rule once they reach the bench. To my knowledge, there have been no allegations of cash transactions in the appointment of MK justices. 
It would be interesting to compare media coverage of Supreme Court decisions with those of the Constitutional Court to see if and how often they do become politically salient. Perhaps a future paper.

UPDATE: The Jakarta Post is reporting another instance of alleged corruption during the process of nominating a judge. This time, Democrat Party Dasrul Djabar is alleged to have attempted to influence the Judicial Commission in return for an endorsement of a particular judicial candidate.

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No booze for you (Indonesia)

No booze for you…

A week ago, the Indonesian Supreme Court struck down a presidential decree that had prevented local governments from banning the sale of alcohol. The Islamic Defenders Front (FPI) filed the initial challenge.

According to The Jakarta Post, FPI, know for its more hardline tactics, had also been involved in raiding nightclubs and stores that sold alcohol. It’s views on alcohol are probably in the minority in Indonesia. However, in the case FPI focused its argument on the fact that the presidential decree hampered local autonomy. In essence, FPI made a federalism argument.

The Supreme Court had had the power to review the constitutionality of administrative regulations even under the Suharto regime, but has rarely exercised it. This latest case is the first major decision in which the court exercised judicial review, and almost certainly the most significant in terms of setting limits on executive power. Is also significantly comes soon after the court received a new chief justice (M. Hatta Ali) and several new justices.

Time will tell if this decision signals a greater willingness to strike down administrative regulations.

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Myanmar Supreme Court website! (Myanmar/Burma)

Myanmar’s Supreme Court has just created a website. It’s a slick design and already contains the 2011 Myanmar Law Reports and a recent volume of the Judicial Journal. Definitely worth bookmarking.

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Return of the Writs (Myanmar/Burma)

The New Light of Myanmar has a brief announcement about a seminar focused on constitutional writs in Myanmar. It’s great to see more attention paid to the writs.* As I’ve said before, one of the biggest questions in Myanmar constitutional law is how they will be enforced. According to the constitution, citizens must petition the Supreme Court to enforce the writs. However, it also seems that the Constitutional Tribunal has jurisdiction to interpret the meaning of those writs. What happens if the two disagree? Just one of the many questions about the constitution.

* (thanks to Eugene Quah for pointing out the article to me)

Writs, vital for rule of law, justice and human rights: Union Attorney-General

Nay Pyi Taw, 14 Feb- Writs are necessary for the rule of law, justice and human rights, said Union Attorney-General Dr Tun Shin as he opened the academic seminar on writs embodied in the constitution of Myanmar at Amara Hotel here this morning.

He said the seminar would raise public awareness about the writs.

The seminar was jointly organized by the Office of the Union Attorney-General and International Court of Justice.

Former ICJ Chairman Mr John Dowd AO QC said ICJ recognized the historic reforms of the country and guaranteed aids for the rule of law and wider reforms.

The seminar is held through 15 February.

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