—Maartje De Visser, Singapore Management University, Yong Pung How School of Law
[Editor’s Note: This is one of our biweekly ICONnect columns. For more information on our 2022 columnists, see here.]
To mark its 70th anniversary, the German Bundesverfassungsgericht released several new informational videos that showcase its justices explaining the court’s internal functioning and some of its landmark rulings such as that concerning the prohibition of the communist party or its recent climate change order. The Indonesian constitutional court hosts its own YouTube channel, and has also set up Twitter, Facebook and Instagram accounts on which it regularly publicizes its recent activities. The Korean constitutional court has converted about two dozen of its decisions, dealing with high profile matters such as political impeachment and gender equality, into cartoons. The Italian Corte costituzionale has begun to undertake ‘voyages through Italy’ to inculcate constitutional values, and the rationale for judicial protection thereof, among prisoners and school students. An edited version of those voyages has been reproduced as a docufilm and played on the country’s premier television channel.
Other examples could easily be added to this list, but the general point should be clear: contemporary constitutional courts are increasingly committed, even keen, to convey information about their judicial work, their position within the constitutional order as well as constitutional values and principles, to the general public. Crucially, in doing so, they make use of novel tools and techniques that go (far) beyond simply relying on the people reading the text of their rulings to achieve what I call greater constitutional literacy. This trend is the subject of my last blogpost as an ICONnect columnist, and the points that follow are in part based on a recent article that similarly addresses the role of courts in relation to promoting constitutional literacy.
Why are courts suitable as purveyors of constitutional literacy?
Let us begin by considering why it may be suitable for courts to invest time and resources in advancing people’s familiarity with constitutional matters. A first reason connects to the pedagogical dimension inherent in most literacy initiatives. Judges are typically given the ultimate responsibility to interpret the constitution, which means that they will be well-versed in constitutional material and constitutional matters. It seems sensible, therefore, for courts to tap their superior domain expertise. Secondly, despite (sometimes harsh) criticism directed at courts, surveys tend to show that there is greater trust in the courts as compared to other state institutions. Court-led literacy efforts could benefit from, or even leverage on, such trust to help increase the likelihood of such efforts being effective in improving constitutional knowledge among the public. Thirdly, courts could capitalize on their institutional capabilities, notably their skills in reason-giving, to convey information about the constitution in a manner that is clear, cogent, and likely to be considered credible.
Now, it should be realized that some of the literacy-promoting activities may go beyond what is traditionally understood as the judicial function. To explain why courts may nevertheless be willing to engage in those extrajudicial activities the work by Tom Ginsburg and Nuno Garoupa on judicial reputation and non-judicial functions appears relevant. They argue that courts require a good reputation to discharge their professional responsibilities. When they take on extrajudicial tasks, judges can diversify the ‘markets’ in which reputation is built. Society at large, or certain segments thereof, can be seen as possible ‘markets’ where judicial reputation can be constructed alongside other markets like the political domain, the judiciary, and the legal professional and academic communities. Relatedly, ideological considerations may be at play: courts could also be motivated to embark on new efforts to engage with the public at large under the influence of the notion of active or participatory citizenship. By sharing information about the constitution, its importance and practical application, courts could be seen as helping to create the conditions for such active citizenship.
Embracing the turn to direct communication between courts and the public
Various benefits appear to be available for courts because of their engaging directly with the people, including through social media. To start with, doing so enables them to explain how judicial outcomes should properly be understood, thereby combatting or avoiding the kind of misinformation that may happen when intermediaries like the press are relied on to convey the gist of court rulings. Likewise, outreach efforts – especially when these showcase some level of judicial creativity like the Korean use of cartoons or the Italian voyages mentioned earlier – can enhance the public’s understanding of and acceptance of constitutional adjudication as an institutional practice. One possible consequence is that the level of public support for the court could go up, which political science tells us might entice self-interested politicians to comply its rulings. And perhaps at its most foundational, direct communication can help foster values like judicial accountability, legitimacy, and transparency, the relevance of which cannot be underestimated in contemporary societies and for contemporary courts.
The importance of regulation and other constraints
At the same time, there are various constraints that we should bear in mind when judges embark on constitutional literacy-boosting work. Courts are likely to put forth a reading of the constitution and their work that favors judicial guardianship of the constitution, rather than behave as neutral advocates of this document and its interpretation. They also tend to favor rights issues rather than questions of state design or amendment rules. This means that we cannot rely entirely on the courts to raise the public’s knowledge of the constitution and the responsibilities of all state institutions under this text: we will also need other state and non-state bodies to be involved in literacy efforts.
Next, many of the regulatory frameworks governing judicial behavior are silent when it comes to the kind of literacy activities that courts progressively engage in. This is unfortunate. Regulation would accord with reality, while also facilitating access to the necessary resources, as the court would be explicitly committed to the realization of literacy efforts as part of its mandate. I think that it would be a good approach for the political branches to include a general authorization in the statute governing the court, while leaving the actual choice of modalities and execution to judicial self-regulation. Doing so would offer the court the necessary flexibility to smoothly adapt its efforts to changing circumstances, such as the rise and fall in popularity of a given social media tool.
Further, there is the difficult question of whether the general public is actually listening, and which audience(s) the court believes it is communicating with: those with a prior interest in constitutional affairs, possibly possessing a certain level of education, or also – or even primarily – those who can be called the ‘uncurious public’? Finally, courts will need to be mindful of the need to maintain their perceived or actual impartiality. Yet, in the end, as Beverly McLachlin has aptly put it: “The judges in modern society are not potentates: they are rather servants, servants of the people in the highest and most honourable sense of that term.” Investing in direct engagement with the general public accordingly seems both important and a sensible use of judicial energies and resources.
Suggested citation: Maartje De Visser, Towards a New Relationship Between Courts and the Public? Int’l J. Const. L. Blog, Dec. 7, 2022, at: http://www.iconnectblog.com/2022/12/towards-a-new-relationship-between-courts-and-the-public/