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I·CONnect

Blog of the International Journal of Constitutional Law

Joint Symposium on “Towering Judges”: Judicial Minimalism as Heroic: Chief Justice Chan Sek Keong, Singapore’s Unlikely Towering Judge

[Editor’s Note: This is part of the joint I-CONnect/IACL-AIDC Blog symposium on “towering judges,” which emerged from a conference held earlier this year at The Chinese University of Hong Kong, organized by Professors Rehan Abeyratne (CUHK) and Iddo Porat (CLB). The authors in this post formed part of a panel on “Towering Judges in New/Mixed Constitutions.” The introduction to the joint symposium can be found here. Parts of this blog post are extracted from the paper presented by the authors at the conference and to be published with the other papers from it.]

Jaclyn L Neo, National University of Singapore, and Kevin YL Tan, National University of Singapore and Nanyang Technological University

Judges can only ‘tower’ in environs where appropriate opportunities exist for them to do so. For that reason, they are more likely to be found in common law than civil law jurisdictions. They are also more likely to emerge in younger jurisdictions where the law is less settled or where local conditions require a significant departure from the established judicial canons. On that score, a towering judge should have emerged in Singapore a long time ago. A small but new jurisdiction that attained its independence in 1963, no major judicial figure, much less a towering judge was to appear until Chan Sek Keong was appointed third Chief Justice of Singapore in 2006.

Towering judges don’t always look the part. A small, shy, retiring man, Chan looks much more like an erudite academic than the judicial giant he is. Yet, it was he who single-handedly transformed the jurisprudence of public law in Singapore through his judgments and leadership of the court. Under his leadership, public law – which had, for half a century been treated as a marginal if inconvenient subject – moved to the mainstream of judicial discourse. Chan’s significance as a towering judge may be reflected in three ways.

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Published on March 19, 2019
Author:          Filed under: Analysis
 

What’s New in Public Law

–Mohamed Abdelaal, Assistant Professor, Alexandria University Faculty of Law

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. Moldova’s Constitutional Court has approved the results of last month’s general election.
  2. The U.S. Supreme Court is set to hear a case regarding freedom of speech and the government’s right not to trademark.
  3. The Jamaican Constitutional Court will hear a claim challenging the constitutionality of the state of emergency.
  4. The Turkish Constitutional Court ruled that in certain cases requiring the applicant to pay certain fines or tenders violates the right of access to court.
  5. The Constitutional Court of Ukraine found an article of the penal code to be unconstitutional.

In the News

  1. The Malaysian cabinet has agreed to amend the constitution.
  2. The Russian Duma has passed a series of bills outlawing spreading fake news and disrespecting authorities.
  3. In Iran, a human rights lawyer has been sentenced to 38 years in prison for spreading news against the state and insulting the leader.
  4. The Colombian President has objected to a War Crimes Tribunal Bill.
  5. The Trump Administration asks the Supreme Court to decide whether the Constitution lets the government ask whether people are American citizens.
  6. Algerian President calls for a national conference to draft a new constitution.
  7. The ruling party in Zimbabwe will initiate a constitutional amendment to maintain quota for women in parliament.

New Scholarship

  1. Asli U. Bali and Hanna Lerner, Religion and Constitution Making in Comparative Perspective, in David Landau and Hanna Lerner (eds), Handbook on Comparative Constitution Making (Edward Elgar, 2019 forthcoming) (reviewing some of the key questions that arise in constitution-writing concerning the relationship of state and religion, including in religiously-divided societies)
  2. Brice Dickson, The Irish Supreme Court: Historical and Comparative Perspectives (Oxford University Press, 2019) (providing a scholarly and readable account of the Supreme Court of Ireland’s jurisprudence from its foundation in 1924 to the present day)
  3. Domenico Giannino and Antonio Manzoni, The commons: an innovative basis for transnational environmental law in the era of Anthropocene?, 11 Perspectives on Federalism (2019) (introducing a theoretical-legal basis for the recent innovative decisions by the Colombian Supreme Court of Justice and by the Inter-American Court of Human Rights on the issue of environmental justice)
  4. Hakeem Yusuf and Tanzil Chowdhury, The Persistence of Colonial Constitutionalism in British Overseas Territories, 8 Global Constitutionalism (2019) (arguing that despite the UK Government’s exaltations of self-determination of its Overseas Territories, provisions of colonial governance persist in their constitutions)
  5. Thomas Kadri and Kate Klonick, Facebook v. Sullivan: Building Constitutional Law for Online Speech (2019) (discussing how disputes about harmful speech are to be adjudicated and the boundaries of free speech in online platforms)
  6. Robert F. Nagel, Conservatism and Constitutionalism in the United States, U of Colorado Law Legal Studies Research Paper No. 19-5 (2019) (examining a range of ideas about what conservatism is and rejects the possibility that most of these can be expected to discipline the temptation to impose personal moral visions and aspirations)

Calls for Papers and Announcements

  1. The Indian Journal of Tax Law (IJTL) calls for submissions of manuscripts on all areas of taxation of contemporary relevance for its new volume.
  2. Visakha Journal of Environmental Law (VJEL) invites paper submissions for its new volume.
  3. Gonzaga University School of Law‘s Journal of International Law welcomes submissions for its 2019 upcoming symposium under the theme of “The Future of Law in the Information Age” to be held on April 4, 2019.
  4. The African Review of Economics and Finance (AREF) calls attention to the 2019 annual conference, which will be hosted at Wits Business School in Johannesburg from 29 to 30 August 2019.
  5. George Washington University Law School will be hosting the second Junior Intellectual Property Scholars Association (JIPSA) workshop of 2019! The event will take place May 28-29, 2019.
  6. The Faculty of Law at the Chinese University of Hong Kong will host a Symposium on “Global Constitutionalism: Asia-Pacific Perspectives” on 28-29 Mar 2019.
  7. The Leuven Centre for Public Law (LCPL) and RIPPLE (Research in Political Philosophy Leuven) are inviting applications for the conference “Democratic renewal in times of polarization. The case of Belgium” which will be held in Leuven on 19-20 September 2019.

Elsewhere online

  1. Lyle Denniston, How far is ERA from being put in the Constitution?, Constitution Center
  2. Irma Johanna, Global tax governance in the G20 and the OECD: What can be done?, Leiden Law Blog
  3. Grace Yang, China’s New Gender Employment Discrimination Laws: Just to be Perfectly Clear, China Law Blog
  4. Could Germany’s digital education initiative threaten states’ rights?, Deuchewelle
  5. Richard H. Pildes, How the Supreme Court weakened Congress on emergency declarations, The Washington Post
  6. Sir Paul Lever, The EU is Germany writ large, Spiked

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Published on March 18, 2019
Author:          Filed under: Developments
 

Constitutionalizing Autocracy: A General Election Under Thailand’s 20th Constitution

Khemthong Tonsakulrungruang, Chulalongkorn University

Thailand is heading toward the first election under the 2017 Constitution on March 24th. It has been eight years since the last valid election. The 2014 Election was invalidated by the Constitutional Court because the anti-government demonstrators successfully blocked voters from entering the voting booths. Shortly afterward, Prayuth Cahn-ocha, the then-Army Commander, staged a coup. His government, known as the National Council of Peace and Order (NCPO), promised a better constitution and long-lasting democracy. However, the 2017 Constitution and the upcoming election are anything but democracy. Instead, the first election under the 2017 Constitution will be a showcase of how constitutionalism can be abused by an unscrupulous autocrat whose real intention is to constitutionalize his authoritarian regime.

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Published on March 16, 2019
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The Venezuelan Presidential Crisis: A Response

Rafael Macía Briedis, Center for Constitutional Democracy, Indiana University Maurer School of Law

In a recent I-CONnect blog post, Rolando Seijas-Bolinaga makes the case for the recognition of Juan Guaidó as the sole legitimate President of Venezuela. Although I certainly agree with his conclusions as to the urgency of replacing Nicolás Maduro at the head of the Venezuelan government, and as to the constitutional viability (if only by analogy) of Guaidó’s claim under Article 233—which states that the president of the legislature shall assume the presidency of the Republic if the latter becomes vacant—, I believe that there is more nuance to the constitutional issue at play than his analysis admits. Understanding that nuance, in turn, should help us derive some important lessons from a constitutional perspective that has been largely overlooked by most takes on the current crisis. I believe, in particular, that the legitimacy crisis now on display, featuring two competing claims (Guaidó’s and Maduro’s) to the constitutionally legitimate representation of the demos, can be traced back to Articles 347-49 of the Constitution, which provide for the possibility of invoking a Constituent Assembly whose alleged representation of the people’s original constituent power places it beyond constitutional control.

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Published on March 14, 2019
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Joint Symposium on “Towering Judges”: Re-thinking my ‘Love Letter’ to Hugh Kennedy, Ireland’s Judicial Visionary

[Editor’s Note: This is part of the joint I-CONnect/IACL-AIDC Blog symposium on “towering judges,” which emerged from a conference held earlier this year at The Chinese University of Hong Kong, organized by Professors Rehan Abeyratne (CUHK) and Iddo Porat (CLB). The author in this post formed part of a panel on “Towering Judges in Mature/Stable Democracies.” The introduction to the joint symposium can be found here.]


Tom Gerald Daly, Melbourne Law School

It was only as I re-read my paper for the ‘Towering Judges’ conference on the flight from Melbourne to Hong Kong in January that I realised it read a bit more like a love letter than the objective analysis of a serious academic. In uncharacteristically breathless tones I set out the case, not only that Ireland’s first Chief Justice, Hugh Kennedy, should be more fully recognised as a towering judge in Ireland itself, but that he deserved a place among the global greats – the Marshalls, Baraks, Bhagwatis and Lord Cokes of this world. Kennedy, my title proclaimed, was ‘Ireland’s Judicial Visionary’.

Kennedy seemed a perfect fit for a conference whose concept note asked us to select a judge who is “individually dominant and charismatic, and…has a great deal of influence on the course his or her court, and sometimes his or her country, takes.” Effectiveness, personal qualities, tactics, legacy, and transnational effects were picked out as key items to focus on. After all, in under 15 years, from 1922-1936, Kennedy was a central architect of the Irish constitutional order. He was the dominant force in drafting the 1922 Constitution produced for the new Irish Free State created under the 1921 Anglo-Irish Treaty that ended the War of Independence with the British Empire, ensuring maximal autonomy for the new state within the Empire though a mixture of political nous and marshalling his capacious comparative knowledge of constitutional arrangements in territories across the Empire to Ireland’s advantage.

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Published on March 13, 2019
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Five Questions with Zachary Elkins

Richard Albert, William Stamps Farish Professor of Law, The University of Texas at Austin

In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about his or her research. 

This edition of “Five Questions” features a short video interview with Zachary Elkins, a professor in the Department of Government at the University of Texas at Austin.

Asked to identify his favorite publication among his entire body of work thus far, Elkins chose “Are Patriots Bigots? An Inquiry into the Vices of In-Group Pride,” co-authored with Rui J.P. de Figueiredo, Jr., available for download here.

To nominate someone for a future edition of “Five Questions,” please email contact.iconnect@gmail.com.

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Published on March 12, 2019
Author:          Filed under: Reviews
 

I–CONnect Symposium: The 30th Anniversary of the Constitutional Court of Korea—Part III: The Constitutional Court of Korea’s Jurisprudence: Influence of International Human Rights Law

[Editor’s Note: This is the third and final entry in our symposium on the “30th Anniversary of the Constitutional Court of Korea.” The introduction to the symposium is available here, Part I is available here, and Part II is available here.]


—Yoomin Won, JSD candidate, Stanford Law School

Korea is more global than ever, which is clearly exemplified by the ongoing influence of international human rights law (IHRL) on Korean constitutional law. “Since Koreans had little experience in the western legal culture, Korea has consulted the experience of the western countries for judicial reforms,” noted Justice Ilwon Kang of the Constitutional Court of Korea. “It became a kind of tradition to consult the international and foreign law for the adjudication of cases in the Korean courts including the Constitutional Court.”[1]

This Post analyzes how the Constitutional Court has incorporated IHRL since 1988. The 15 decisions in which the Court referenced IHRL while invalidating prior Korean law are examined through the lens of each of the five six-year presidential terms of the court (1988–2018).

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Published on March 12, 2019
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What’s New in Public Law

Sandeep Suresh, Faculty Member, Jindal Global Law School (India)

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Irish Supreme Court held that the courts have a jurisdiction to intervene where there is a significant and unremedied unlawful action by a parliamentary committee.
  2. The Hungarian Constitutional Court held that the ‘Stop Soros Legislation’ that criminalized some forms of support to illegal immigrants is not unconstitutional.
  3. The Indian Supreme Court will decide whether a criminal trial can be vitiated if the evidence of witnesses are taken in the absence of accused persons in a case which will probably expand the right to fair trial.
  4. Higher Regional Court of Frankfurt held that WhatsApp messages to close family members are defamation-free zone in which members may freely speak without fear of legal consequences.
  5. The Thai Constitutional Court dissolved the Thai Raksa Chart party for nominating Princess Ubolratana as the prime ministerial candidate.

In the News

  1. The Tennessee House of Representatives passed a law to ban abortions after the detection of fetal heartbeat which may be as early as six weeks into a pregnancy. 
  2. The Delhi High Court in India issued notice to the Central Government and Election Commission in a public interest petition that challenges the denial of voting rights to prisoners.
  3. Women leaders in Somalia urged lawmakers to pass the electoral reforms bill to ensure 30% reservation for women in the Somalian Parliament.
  4. Pakistan amended the Election Act 2017 to allow the Election Commission to constitute benches to hear complaints regarding corrupt practices during elections in a speedier manner.
  5. The German government plans to formulate a law that would strip the German citizenship of persons who represent and fight for a foreign terror militia like the ISIS.

New Scholarship

  1. Asif Hameed, The Rule of Recognition and Sources of Law in Miller, Public Law (January 2019) (providing a defence of the UK Supreme Court’s reasoning in Miller about the status of EU law under UK law, and also assessing whether Miller is a one-off case or whether other treaty-based sources of law might warrant similar protection under the UK constitution).
  2. David Kosar, Beyond Judicial Councils: Forms, Rationales and Impact of Judicial Self-Governance in Europe, 19 (7) German Law Journal (2019) (arguing that judicial self-governance is much broader phenomenon than judicial councils and why it is high time to view judicial self-governance as a much more complex network of actors and bodies with different levels of participation of judges).
  3. Domenico Giannino, Are we looking up or are we looking out? The transnational constitutionalism of the Inter-American Court of Human Rights: conventionality control and the fight against impunity, Transnational Legal Theory (2019) (arguing, via the case study of the revolutionary jurisprudence of the Inter-American Court of Human Rights, that we are looking beyond the traditional elements of constitutional analysis, which are inseparable from the idea of sovereign State).
  4. Ling Li, Political-Legal Order and the Curious Double Character of China’s Courts, Asian Journal of Law and Society (March 2019) (analysing how politics and law in China are organically integrated in the institutional architecture of courts as designed by the Chinese Communist Party).
  5. Nausica Palazzo, The Strange Pairing: Building Alliances Between Queer Activists and Conservative Groups to Recognize New Families, 25 Michigan Journal of Gender & Law (2018) (noting that the most innovative reforms in the field of family law were pushed forward by conservative groups, argues that conservative fringe groups and queer activists should build alliances to introduce alternative regimes to marriage open to new families, such as non-conjugal families).
  6. Uwe Kischel, Comparative law (Oxford University Press, 2019) (offering a critical introduction to the central tenets of comparative legal scholarship).

Call for Papers and Announcements

  1. Submissions are invited from comparative law scholars around the world for a works-in-progress roundtable, to be held at the University of Texas at Austin on May 21-22, on all subjects of comparative law. The purpose of this round table is to offer scholars the opportunity to develop their ideas as they work toward submitting a draft–either an article or a book–for publication. A total stipend of $500 is available for participants.
  2. The Xiamen Academy of International Law is inviting applications for the 2019 Summer Program to be held from July 8-26, 2019. Interested candidates must submit applications by April 30, 2019.
  3. The Democratic Decay Resource (DEM-DEC) released its ‘eighth Global Research Update on democratic decay’ (March 2019 – available here), containing new research worldwide from February and early March 2019; items suggested by DEM-DEC users; a rapidly expanding list of forthcoming research; a list of new resources added to the Links section; and – in honour of International Women’s Day on March 8 – a list of recommended reads on far right and populism by female scholars (compiled by Cas Mudde). A post introducing the Update will be published on the IACL-AIDC Blog on March 11 (Monday), followed by publication on Verfassungsblog.
  4. Friedrich Schiller University Jena is organizing an international conference on ‘100 Years of the Weimar Constitution: Constitution-Making and Its International Context’ to be held from April 4-5, 2019 in Weimar. The conference aims to undertake an international and comparative assessment of the Weimar Constitution of 1919. Both the linkages of the Weimar Constitution to contemporary developments and the international reception of the Weimar Constitution, including its long-term effects in international legal and intellectual discourses, will be analyzed. The event will be international and interdisciplinary. It will involve the perspectives of legal scholars, historians and political scientists. More information about the conference can be found online.
  5. University of Leipzig is inviting applications for the Summer School on ‘Human Rights in Theory and Practice’ to be held from September 1-7, 2019 in Leipzig. Interested applicants must note that the deadline for early bird registration is March 31, 2019.
  6. The Center for Constitutional Law at the University of Akron School of Law is inviting paper proposals for the conference on ‘The 19th Amendment at 100: From the Vote to Gender Equality’ to be held on September 20, 2019. Interested candidates must submit their proposals (short abstract of the paper and CV) to Prof. Tracy Thomas at thomast@uakron.edu by April 10, 2019.

Elsewhere Online

  1. Tom Hickey, Spectre of litigation now hovers over our parliamentarians, The Irish Times
  2. Bridgette W. Gunnels, How to force the Trump administration to follow the law on refugees, The Washington Post
  3. Armin von Bogdandy and Luke Dimitrios Spieker, Countering the Judicial Silencing of Critics: Novel Ways to Enforce European Values, Verfassungsblog
  4. Gautam Bhatia, The imperial cabinet and an acquiescent court, The Hindu
  5. Fulvia Staiano, Yeshtla v. the Netherlands: a missed opportunity to reflect on the discriminatory effects of States’ social policy choices, Strasbourg Observers
  6. Vikram David Amar and Jason Mazzone, How Much Deference Will be Given to Affirmative Action Plans Fashioned by Students, and to Affirmative Action Plans More Generally?, Verdict
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Published on March 11, 2019
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I–CONnect Symposium: The 30th Anniversary of the Constitutional Court of Korea—Part II: The South Korean Constitutional Court in Comparative Perspective

[Editor’s Note: This is the second entry in our symposium on the “30th Anniversary of the Constitutional Court of Korea.” The introduction to the symposium is available here and Part I is available here.]


—Tom Ginsburg, Leo Spitz Professor of International Law and Ludwig and Hilde Wolf Research Scholar, The University of Chicago

As the Constitutional Court of South Korea turns thirty years old, we have an opportunity to reflect back on its remarkable achievements. Established as part of the founding bargain of the Sixth Republic, which restored the country’s democracy in 1987, the Constitutional Court is an example of the turn toward judicial review in the so-called “Third Wave” of democratization. Whereas prior eras of constitutional reform did not always feature powerful courts, the wave of democratization that began in the mid-1970s (peaking around 2006) has been court-centered. 

South Korea was at the vanguard of this process. In 1988, there were 37 countries that had a constitutional court or council to interpret the constitution. By 2017, that number was 96—essentially half the countries with written constitutions.[1] Of the many “third wave” courts, South Korea’s has surely been among the most successful on three dimensions: It has assumed a major role in its political system, it has not suffered backlash, and it has become a regional leader. Let me explain each point in turn.

First, the Constitutional Court has assumed a central role in its political system.  As former Justice Ilwon Kang of the Constitutional Court notes in his contribution to this symposium, few people in 1988 expected the Court to play a vigorous role in Korea’s democracy. But by now it has received and resolved tens of thousands of cases, including hundreds involving the constitutionality of statutes.  It has shown itself quite willing to strike down government actions and to help clear the channels for the country’s democratic institutions to operate.

The issues the Constitutional Court has confronted have been increasingly high profile. In its early years, the Court decided several cases related to elections and other core features of democracy, and it also made cautiously progressive decisions on issues like the National Security Act, which had been abused in the authoritarian period to limit freedoms of speech and association. In 2014, the Court was confronted with a government request to ban the Unified Progressive Party, a political group associated with North Korea. The use of party bans is a sensitive one in any democracy, as it risks substituting a court’s judgment for that of the people, who could after all reject the party in an election.  Drawing on the idea of “militant democracy,” countries like South Korea, which confronts a hostile and dangerous neighbor, have provided mechanisms to ban parties that seek to undermine the constitutional order. As in postwar Germany, the South Korean Constitution gives this role to the Constitutional Court.  In an 8-1 decision, the Court decided that the UPP had to give up its seats in the National Assembly.

The highest profile cases have been the two impeachment decisions involving sitting presidents.  In 2004, President Roh Moo-hyun ran into trouble with the conservative opposition parties in the National Assembly, which passed a motion for impeachment by the necessary 2/3 vote. Under Article 112 of the South Korean Constitution, impeachment motions must be confirmed by the Constitutional Court. The Court decided to bifurcate the issue into the question of whether there was a violation of the law, and whether any violations were severe enough to warrant removal. While the Court found that Roh had violated certain  provisions of electoral law that prevented him from campaigning for his party, it also found that these violations were not severe enough to warrant removal from office. Roh served out the remainder of his term, though he ended up committing suicide in 2009, after corruption allegations surfaced.  With this decision, the Constitutional Court confirmed its place as the very guardian of the constitutional order, taking for itself the role of final arbiter of impeachment.

This role was again evident in late 2016, when it was revealed that President Park Geun-hye had been heavily influenced by a Rasputin-like figure named Choi Soon-sil. Park’s declining popularity led to an impeachment motion from the National Assembly, and the case came to the Constitutional Court.  This time, in a careful and well-written opinion issued in March 2017, the Court found the violations severe enough to warrant Park’s removal. Within three months, a new election was held and President Moon Jae-in was elected.  These cases demonstrate the very central role the Constitutional Court has played in Korea’s vigorous democracy.

One can also compare the Constitutional Court with other institutions in South Korea. Polls show that the Court remains popular, and its decision to remove President Park was supported by nearly four out of five Koreans.  One might contrast this popularity with that of the Supreme Court, whose former Chief Justice Yang Sung-tae has just been arrested on charges of tampering with cases, including the politically sensitive issue of wartime liability of Japanese companies.  News reports also accused Yang of trying to “rein in” the Constitutional Court, as the two courts had fought in the past as to their respective jurisdictions.

Second, the Constitutional Court has suffered no great backlash.  Whereas constitutional courts in many other jurisdictions have been subject to withering criticism from politicians, there is relatively little of this in South Korea. Other courts have found their jurisdiction limited in the wake of scandals or politically sensitive decisions, but there has been no such move in these thirty years. Nor have there been attempts to pack the Court or remove judges on political grounds. Instead, the Court has reached out throughout Korean society to promote constitutional values.

Finally, the Constitutional Court has become a leader in what Professor David Law (Washington University) has called “Judicial Diplomacy.”[2] The Court has well-institutionalized mechanisms for learning about foreign jurisprudence, and has also been a leader in organizing courts in the region. Korea is the only Asian member of the Venice Commission, and Constitutional Court judges like Justice Kang are the typical representatives. The Korean Constitutional Court played the leading role in establishing the Association of Asian Constitutional Courts and Equivalent Institutions. It is a regional and global leader in constitutional justice.

These achievements become all the more impressive in a comparative a perspective. The other constitutional courts in Asia, with the exception of that of Taiwan, have not enjoyed the same sustained success. The region’s oldest democracy, Japan, is not known for vigorous judicial review.  And the other new courts of the Third Wave, particularly in Eastern Europe and Latin America, have in many countries suffered significant politicization. It is sometimes said that the judicialization of politics leads to the politicization of the judiciary, but the South Korean Constitutional Court has managed to avoid the latter fate. The story of its success surely deserves closer study.

Suggested Citation: Tom Ginsburg, I–CONnect Symposium: The 30th Anniversary of the Constitutional Court of Korea—Part II: The South Korean Constitutional Court in Comparative Perspective, Int’l J. Const. L. Blog, Mar. 9, 2019, at: http://www.iconnectblog.com/2019/02/i–connect-symposium:-the-30th-anniversary-of-the-constitutional-court-of-korea—part-ii:-the-south-korean-constitutional-court-in-comparative-perspective


[1] Data from the Comparative Constitutions Project, on file with author.

[2] David S. Law, Judicial Comparativism and Judicial Diplomacy, 163 U. Pa. L. Rev. 927 (2015).

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Published on March 9, 2019
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Joint Symposium on “Towering Judges”: Sir Anthony Mason: Towering over the High Court of Australia

Gabrielle Appleby and Andrew Lynch, University of New South Wales Faculty of Law

[Editor’s Note: This is part of the joint I-CONnect/IACL-AIDC Blog symposium on “towering judges,” which emerged from a conference held earlier this year at The Chinese University of Hong Kong, organized by Professors Rehan Abeyratne (CUHK) and Iddo Porat (CLB). The authors in this post formed part of a panel on “Towering Judges in Mature/Stable Democracies.” The introduction to the joint symposium can be found here.]

Two figures tower over the history of the High Court of Australia: Sir Owen Dixon (1929-1964) and Sir Anthony Mason (1972-1995). While our argument is that it is Mason who has risen to be the contemporary towering jurist of Australia’s High Court, they both remain obvious contenders for the appellation of a ‘Towering Justice’ in Australia, and any consideration of their respective legacies requires an appreciation of the other.

Dixon’s legacy stems from his long and distinguished tenure, in which he was famous for his articulation of a vision of a court constrained by the rigour of legalism. ‘Dixonian legalism’ affirmed the previous approach of the High Court from the decades since 1920, and held the Australian High Court in its conservative grip after Dixon’s tenure for more than half a century. Much more than a rhetorical shield against political criticism of the occasional decision in which government was thwarted, Dixon’s ‘strict and complete legalism’ was an affirmation and defence of Australian legal and political values that, unsurprisingly, embraced the positivist English legal tradition which proved both familiar and congenial to generations of Australian lawyers.[1]

Our case that it is Mason who has risen as the contemporary ‘Towering Judge’ of the Australian High Court is founded on his effective challenge to that orthodoxy – both as an individual judge and as the unquestioned leader of a remarkably talented and vibrant Court. The ‘Mason Court’ (1987-1995) reset contemporary debates about the institutional role of the Court in the Australian constitutional system, which was reflected in a distinct shift in its constitutional jurisprudential approach. Mason and his Court’s influence has endured in the face of efforts, through executive-led judicial appointments, to revert to formalism.

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Published on March 8, 2019
Author:          Filed under: Analysis