Category Archives: tom ginsburg

Book Review: How old is your constitution?

[This isn’t a strictly Southeast Asia book, but it includes several case studies from Asia, including Thailand, China, and Japan]

According to murmurs in Congress (particularly from Tom Coburn’s office), there has been some debate recently about the value of political science as a discipline. As such, this seems like the perfect time for The Endurance of National Constitutions to debut. This book should be required reading for anybody in the rule of law sector, especially consultants advising governments on drafting a new constitution.

Constitutions are such a basic part of our political discourse, most of the prior scholarship has remained mired in debates over legal doctrine rather than observing the empirical data about constitutions. As such, Elkins, Ginsburg, and Melton provide the field an invaluable service with The Endurance of National Constitutions. Their study examines every single constitution written during 1789-2005 subject to a whole host of variables. In The Endurance of National Constitutions, their main concern is assessing what elements of constitutional design impact the constitution’s longevity. For example, should the ideal constitution be more specific or more general in order to maintain popular and elite support? Unlike most studies about constitutions, they are less interested in “environmental” factors (e.g., wars, coups, etc.), although they do address these variables as well. 
The results are fascinating. The authors conclude that, on average, far from providing a permanent legal basis, most constitutions only last for around 19 years. They then debunk several myths about successful constitutions by showing that three variables increase constitutional endurance significantly: 1) an inclusive constitution-drafting and ratifying process; 2) flexible amendment or interpretation procedures; and 3) greater specificity and scope. Constitutions that embrace these features will tend to survive decades longer than than those that do not. Ironically, these recommendations contradict the assumptions most American lawyers possess regarding the success of the U.S. constitution. Our constitution was 1) drafted by elite property owners; 2) requires 2/3 of Congress and 3/4 of states to amend; and 3) is relatively short and general. As such, Elkins, Ginsburg, and Melton consider the U.S. an odd outlier (in their wonderful analogy, like the 122-year-old lady who smokes and whose diet consists solely of chocolates). 
The study is based on the text of the constitutions rather than other sources of constitutionalism, such as judicial interpretation of constitutions. This poses some dangers as many constitutions, particularly the U.S. Constitution, rely upon other constitutional sources to supplement the text. For example, a textual analysis of the U.S. Constitution would suggest that the federal government has few powers and could not regulate civil rights, environmental pollution, or many other fields of modern life. Yet, the Supreme Court has interpreted the seemingly lucid and innocuous word “commerce” to include all of these subjects. The authors realize this limitation and note that such as study would require far more resources and probably be impracticable. More importantly, they make a compelling case that they are primarily interested in constitutional “design,” which concerns the original text. 
As comprehensive as I found the analysis of The Endurance of National Constitutions, I did wish the authors had included a few more variables. In particular, they do not compare constitutions by the host country’s type of legal system (e.g., common law, civil law, communist law). Some legal scholars will rightly note that civil and common law systems are converging to some extent, but I don’t think this is merely a matter of “legal taxonomy.” The classification also captures something about the country’s legal history (whether it was colonized by the French, British, etc.) that could conceivably have some impact on constitutional endurance. Also, there does seem to be some evidence that common law countries provide stronger protection for property rights and possess more independence courts. Knowing Elkins and Ginsburg’s other articles on the question of presidential versus parliamentary systems, I suspect they may not find the common/civil/communist law distinctions analytically useful, but it probably should have been addressed somewhere in the book. 
I also would have liked to have seen a bit more about the mode and median of constitutional endurance, rather than just the mean. This is especially crucial in this study because, as it turns out, the relatively small and insignificant Hispaniola (Haiti and the Dominican Republic) has produced some 7% of the world’s constitutions since 1789. In other words, these two outliers produce so many constitutions that they can affect global averages. The authors do discuss this issue in some places, but it’s important enough that it might even have been worth calculating the correlations both with all constitutions in the dataset and with the outliers or extremes removed. I suspect that without Hispaniola in the dataset, the average lifespan of a constitution would be at least a bit longer. 
Make no mistake – The Endurance of National Constitutions is probably the most important scholarly book about constitutions to come out in quite some time. Fortunately, the authors promise that The Endurance of National Constitutions is only the first book of several that they plan to release in conjunction with their Comparative Constitutions Project. In the meantime, this book will give you plenty to think about. If you haven’t decided what to get for Christmas yet, I’d definitely recommend this book.

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Filed under constitutions, James Melton, tom ginsburg, Zachary Elkins

Southeast Asian Courts: "To Be Free, or Not to Be?"

I have been reading Dr. Maung Maung’s book Burma’s Constitution, which focuses on Burma’s activist Supreme Court during the late 1940s and 1950s. It reminded me of an odd trend in Southeast Asia: courts in democracies tend to exercise strong judicial review and promote progressive constitutional norms, whereas courts in authoritarian regimes rarely challenge the executive.

At first glance, this might seem obvious. So why is this so surprising?
First of all, not all courts in democratic countries are equal. A wide range of institutional variables influences judicial review by constitutional courts in Asian democracies.  In Judicial Review in New Democracies, Tom Ginsburg finds a correlation between transitioning countries with dominant political parties and weak courts. Constitutional drafters can make courts more accountable to the government by shortening the justice’s terms; restricting the court’s jurisdiction; decreasing the size of the court; and making funding dependent upon other branches of government. As such, if a dominant political party drafts the constitution, it is more likely to design a weak court that it can later manipulate. On the other hand, a party that expects to to lose power at some point in the future would design a stronger court to protect it while out of power.

On the other hand, not all courts in authoritarian countries acquiesce to a marginalized role. In some regimes, courts play an important role buttressing the prevailing elites. For example the Iranian judiciary has at times actively supported the theocracy and undermined the legislative and executive branches when the latter were controlled by reformists. Some courts, such as Egypt’s Supreme Constitutional Court, have even challenged authoritarian leaders and assisted liberal democrats. Constitutional law scholars have only recently turned their attention to courts in authoritarian regimes, although Tom Ginsburg and Tamir Moustafa’s Rule by Law is a great start.

So, where does that leave Southeast Asia?

Constitutional courts in democratic Indonesia, the Philippines, and Thailand, as well as Burma during the 1950s, all exercise judicial review actively to strike down laws and executive acts. Philippa Venning argues that both the Indonesian and Philippine courts exercise “strong-form” review. Tom Ginsburg characterizes the Thai court as an important veto player. Reading about the Burmese Supreme Court, I’ve been struck at how justices played such an important role in Burmese politics, from striking down administrative acts to forming political parties. None of these courts would rank as the strongest possible according to constitutional design theory since they generally either have term or age limits for justices, but they nonetheless have tended to flaunt their power. None of the constitutional courts in the democratic countries have played a minor role or exercised judicial modesty.

All of the constitutional courts under authoritarian governments have submitted to government authority and none play a major political role. Courts in Communist Vietnam, Cambodia, and Laos have almost never challenged the dominant party-state. Likewise for the Supreme Courts in Indonesia and the Philippines during the Suharto and Marcos eras. As we saw recently, Burma’s courts assisted the military in prosecuting political dissidents, including Aung San Suu Kyi. With a few exceptions, these courts have not issued shocking verdicts against the executive (I don’t count the Philippine Supreme Court’s decision to certify the 1986 election, since by that point Marcos was effectively on his way out). In fact, judges in these countries haven’t received respect as elite figures or key political players (Sebastiaan Pompe tells some revealing anecdotes of the utter contempt with which Sukarno held judges). This isn’t the result of “weak” civil law courts (as some scholars have argued). I suspect a combination of totalitarian party dominance in the mainland dictatorships and bribery in the insular patrimonial regimes has led to such weak courts when authoritarian governments reign. However, there simply haven’t been enough comparative studies to make any firm conclusions.

I haven’t mentioned Singapore or Malaysia yet because they stand midway between democratic and authoritarian – controlled by a dominant party, but also allowing at the exercise (if not substance) of democracy and civil liberties. Likewise, courts in both countries have a reputation of fairness when dealing with private rights and commercial cases, but have stifled political or public interest cases. Of course, Singapore’s courts have a stellar reputation among the business community, but also vigorously enforce the country’s libel laws. These courts seem to fall midway along the spectrum of judicial review, enforcing some private rights but refusing to interpret the constitution against political elites.

[As for Brunei, I honestly haven’t followed Brunei’s courts well enough to comment, but have heard nothing contradicting this post.]

I don’t know if anybody has explored this topic. It might make a great Political Science Ph.D. thesis. It does seem interesting that courts in the region tend to fall into such extremes.

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Filed under authoritarian, democracy, Freedom House, Judicial Review in New Democracies, Philippa Venning, Rule by Law, southeast asia, tom ginsburg

Book Review: Administrative Law and Governance in Asia

Administrative Law and Governance in Asia: Comparative Perspectives (Routledge Law in Asia) is one of the more recent in Routledge’s excellent “Law in Asia” series. This volume, edited by Tom Ginsberg and Albert H.Y. Chen, is also one of the most interesting in the series, dealing primarily with powers of judicial review in administrative and constitutional contexts.

First, a few general observations about the book:
Administrative Law and Governance in Asia represents a serious effort by top experts in the field. Tom Ginsburg of University of Chicago is well-known for his scholarship on judicial review in Asia, particularly his excellent Judicial Review in New DemocraciesRandall Peerenboom has famously cautioned against imposing Western legal norms upon the Chinese legal system. John Gillespie‘s scholarship focuses mostly on commercial law in Vietnam and is (at least in my opinion) one of the top three Western scholars studying Vietnamese law. Stewart Fenwick, associated with Tim Lindsey’s Asia Law Group, has worked on judicial reform in Indonesia for several years. For this reason alone, the book is worth reading to become familiar with the scholars and their work.

Compilations of this sort are in danger of simply reprinting the laws and judicial decisions from individual countries, rather than providing context and analysis. I remember one book about competition policy in Asia that essentially reprinted each country’s anti-monopoly law. Needless to say, in an age when I can find the important legislation from ASEAN countries online, that type of book is useless. Fortunately, Administrative Law and Governance in Asia by and large avoids this trap. The authors analyze on judicial institutions, not just the text of laws. They really provide a sense of the success of judicial review in the country as practiced. Several of the articles provide amazing data on courts in Southeast Asia that I haven’t found elsewhere, from appeal rates to caseloads. Of course, not all of the articles rise to this level of excellence, but most do.

Now, for the bad. As a Burma specialist, I am always disappointed that the Routledge series does not include a chapter on Burma. Granted, the series also omits Cambodia, Laos, Brunei, and East Timor, but  Burma generates significantly more interest (as can be gleaned from the excitement over Obama’s new Burma policy). I suspect the editors either could not find anybody qualified to write such a chapter, or decided that Burma’s legal system had not yet developed sufficiently to make it worthy of inclusion. On the first point, all I can say is that hopefully in 10 years or so I can fill that gap and write those chapters. On the second point, it is true that Burma has not had any mechanism for judicial review since the 1962 coup. However, that certainly doesn’t mean Burma doesn’t have administrative law. In fact, I think Burma could serve as a useful counterpoint as the prototype patrimonial legal system. Also, there are some interesting provisions in the new constitution regarding judicial review, such as the constitutional tribunal. I will keep my fingers crossed for future volumes. [As a non-ASEAN side note, I also hope Routledge finds a way to include Mongolia, which has a dynamic constitutional court. I know several of the authors in this volume have experience with Mongolian courts].

A more serious concern I had with the book was its bifurcated nature and failure to focus on administrative law. “Judicial review” can encompass many ideas, but lawyers most often consider the power of courts to determine the government’s compliance with 1) the constitution, or 2) superior statutes and regulations. While the basic institutional concept of judicial review is the same for both practices, they involve very different fields of substantive law. Constitutional review often involves human rights, elections, presidential power – the “hot” topics in law. On the other hand, administrative review deals with more technical fields, such as regulation of public utilities – the classes most law students dreaded.

Unfortunately, this split arises throughout the book and is never fully integrated into one idea. Some of the chapters seem almost like two separate articles, with one half addressing administrative courts and the other constitutional courts. Some authors even wrote each half in a different style or using a different frame of analysis. Sometimes, the switch is jarring, For example, Gan Ching Chuan’s article on Malaysia begins by comparing the Court of Appeal’s willingness to protect fundamental rights with the Indian Supreme Court, but ends with a discussion of Malaysian public utilities. I found both halves interesting, but would prefer the first half expanded in a book dedicated exclusively to constitutional review in Asia.

There is a question of how different these concepts of administrative and constitutional review really are. After all, both address the power of judiciary to hold the state apparatus accountable to the law. However, there is an important difference: political elites in have viewed administrative review as less threatening than constitutional review. Several authoritarian countries in the region, from Communist China to Suharto’s Indonesia, created administrative courts with limited powers of judicial review. Both regimes used administrative law to handle the increased complexities of modern economies, as well as to rationalize the law. However, both governments resisted (and China’s still resists) any sort of constitutional review. Indonesia’s Administrative Courts during the 1990s were able to make bold decisions in part because elites viewed them as peripheral, but the country only established the Mahkamah Konstitusi during the reformasi era. In short, because elites in the legal systems treat these concepts separately, I think it would have been useful to separate these two fields a bit more clearly throughout the book.

Now, since this is a blog about Southeast Asia, here are short reviews of the chapters dealing with Southeast Asian (and Chinese) judicial review:

1) More law, less courts: Legalized governance, judicialization, and dejudicialization in China – Randall Peerenboom

Peerenboom’s scholarship has emphasized that we should not expect the rule of law in China (or elsewhere in Asia) to resemble Western conceptions of the rule of law. Because of its political and cultural context, China has focused on administrative remedies to handle citizen complaints. He also details the “dejudicialization” over the past few years, noting that courts, which are expensive and do not have autonomous enforcement powers, may not be the most relevant forum for most Chinese citizens. The Chinese government has opened some mechanisms for administrative accountability (notably the Xinfang system), but has in recent years rolled back any attempts at judicial review. In a sense, these developments provide an interesting contrast to the rest of the countries covered in the book.

2) The juridification of administartive complaints and review in Vietnam – John Gillespie

Of all the essays in the book, Gillespie’s chapter on Vietnam does the best job of staying focused on administrative law. He explores various theories to explain why Vietnam has moved ever-so-slowly toward judicialization of administrative complaints. However, more interesting are the “non-legal” administrative mechanisms. Local firms and elites prefer these alternatives since, as domestic actors who understand the system, they have an advantage over foreign competition. However, this comes at the cost of weaker courts. Domestic actors appear more hesitant to use courts and potentially damage their relationships with local officials. Furthermore, as might be expected in a Communist legal system, judges have been unwilling to challenge the state. The Supreme Court even ordered judges to avoid “interfering with the mechanisms of government.” After reading this chapter, I became anxious to read Mark Sidel’s new book on Vietnam’s constitution.

3) The emergence of administrative justice in Thailand after the 1997 Constitution – Peter Leyland

This chapter had the distinct misfortunate of going to press right after the 2006 coup, which ousted Prime Minister Thaksin. As such, its greatest value is historical. Having said that, this is an especially useful chapter for American lawyers to read because it shows the influence of European legal theory on Thai law. Leyland also discusses the principles of administrative review, such as abuse of discretion – although proportionality was not among them.

He ends the chapter with two brief case studies. These I found less useful. On the one hand, Leyland states that political elites have allowed the Administrative Court to act independently because they view it as having less of a role in controversial matters, yet both case studies involved the media and Egat, assets dear to Thaksin during his rule. Furthermore, as was apparent last year, the Constitutional Court has been independent enough to topple the Thai cabinet. The Thai judiciary as a whole, not just the Administrative Courts, has a reputation for professionalism and honesty unmatched anywhere else in Southeast Asia (except Singapore). Leyland only hints at the deeper roots of the judiciary’s strength near the very end of his article when he notes that the judicial appointment process focuses on merit and that the court’s finances is ring-fenced. I wish he had developed those points a bit further.

Of course, since publication, the Thai military enacted a new constitution and the Constitutional Court has changed significantly. Check out Tom Ginsburg’s recent article about Thai courts for an update.

4) Administrative law and judicialized governance in Malaysia: the Indian connection – Gan Ching Chuan

As I mentioned above, this article definitely felt bifurcated. I found the first half an interesting overview of developments in constitutional review among the Courts of Appeal. Chuan describes a moderately liberalizing trend during the late 1990s up until 2007, when the Federal Court imposed more a restrictive interpretation on fundamental rights and access to courts. Unfortunately, he never teases that tension out to explain why the Federal Court butted heads with the Court of Appeals. Was there political pressure from above? Did the composition of the court change during the mid-2000s? I would like to have seen the article continue along these lines rather than venture off into public utility law for the second half.

I have been encouraging Southeast Asian lawyers to look at constitutional law elsewhere for ideas and inspiration. However, I also felt Chuan’s comparison to India might not be the most appropriate. India’s Supreme Court has become a very aggressive veto player and vocal in its advocacy on behalf of public interest causes. As I’ve argued elsewhere for Pakistan, this may not be the best model to follow. Unlike India’s vibrant democracy, elites still have an outsized influence over Malaysian politics. Even though Malaysian courts will occasionally borrow Indian case law, as recent judicial scandals indicate Malaysia’s courts are, at best, compromised. Malaysia’s courts must also deal with the increasing influence of Islamic law and a society deeply divided among ethnic lines – problems India has, but to a far more limited extent. Furthermore, India’s Supreme Court is actually on the global extreme in terms of theories of constitutional interpretation. Most Western courts would reject India’s views on substantive equality for example. Thus, I do not believe Malaysian constitutional lawyers should set an outlier like India as its goal.

5) “Government by judiciary” in the Philippines: ideological and doctrinal framework – Raul C. Pangalangan

Pangalangan’s article isn’t focused on administrative law at all, but rather is an exposition of constitutional review in Philippines. At times he loses a scholarly objectivity and shows his sympathies toward judicial activism. Nonetheless, the article makes two important points that anybody interested in the Philippines should (and often doesn’t) realize.

First, the 1987 Constitution reflects the protectionist and pro-poor policy ideology of the 1986 People Power movement. It includes downright socialist provisions on national ownership of strategic economic sectors that the Arroyo administration tried, but failed, to amend. Unfortunately for the country, the drafters succeeded in freezing the constitution in place, which has hampered its competitiveness in the international economy.

Second, the Philippine Supreme Court has become a vocal and progressive veto player in the government. The court demonstrated this late last year when it struck down the Mindanao peace settlement. However, as Pangalangan argues, it has also acted as a champion of the 1987 Constitution’s progressive ideals. The court has liberalized standing requirements for public interest litigants and eschewed legal formalism. Unlike most Southeast Asia Supreme Courts, it is often involved in the most controversial issues of the day.

Having spent some time in the Philippines working on public interest law, I part ways with Pangalangan in assessing the court’s success The Philippine Supreme Court is a lone progressive voice in a sea of conservative elites. It succeeds in striking down laws when, as with the Mindanao settlement, a significant segment of the elite has something to gain. When the Supreme Court goes against elite interests, as with environmental and human rights cases, the court appears impotent. Despite Chief Justice Reynato Puno’s valiant efforts, the judiciary still has not convicted any officials for the spate of extrajudicial killings. I also have gotten the sense that the Supreme Court’s progressive rulings on environmental law have not filtered down to the lower courts, which still require traditional legal standing. Thus, the Supreme Court is only partially successful as the guardian of the Constitution. I suspect Pangalangan would agree with this assessment, but I wish he had spent more time discussing the limits of judicialization as well as the court’s doctrine.

6) Administrative law and judicial review in Indonesia: the search for accountability – Stewart Fenwick

This is easily one of the best articles in the entire volume. I thought I had read everything about Indonesia’s courts in the English language, but was obviously wrong. It is packed with information and data that are unavailable anywhere else. I suspect Fenwick obtained much of the data during his years as a consultant with Tim Lindsey’s Asia Law Group. 

One statistic that struck me – 98% of cases in the court system deal with criminal matters, and of those over 90% concern minor traffic accidents. In other words, civil litigation is almost non-existent! This has very important consequences for ongoing judicial reform projects in the country. Often reformers have focused on reducing the backlog, but there is also a need to reduce the number of appeals to the Supreme Court. If so many cases really deal with such petty issues, the courts should establish a certiorari system to make appeals discretionary, not by right.

[Note: there is a chapter about Singapore’s courts in this book, but I haven’t gotten around to reading it. Sorry, Singapore!]

Overall, I still think this is a great book. The scholarship is excellent and I have used several of the articles in my research. I find both administrative and constitutional law fascinating, so on a personal level I enjoyed it. However, I hope Routledge considers dedicating an entire book to constitutional law in Asia soon (there are some attempts at such a book, but I think the subject deserves treatment from Routledge’s Law in Asia series). I am excited about its New Courts in Asia, coming out later this year. Hopefully that volume will cover constitutional courts.

I also highly recommend Ginsburg’s Judicial Review in New Democracies: Constitutional Courts in Asian Cases.

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Filed under administrative law, john gillespie, randall peerenboom, stewart fenwick, tom ginsburg