Global south Rule of law Flashcards
A remarkable sequence of events in Pakistan caught the international legal community’s imagination when
the deposed Pakistan Supreme Court CJ , Iftikhar Muhammad Chaudhry, was reinstated for the second time from the 2nd wave of Lawyers Movement in Mar 2009
Why was chaundry dismissed
military ruler dismissed him, 2nd dismissal was by military regime dismissing a wave of judges replaced them with pro-regime judges
What did the 2007 dismissay of Chaundry CJ lead to?
protests by Pakistina’s lawyers, representing struggles for the Rule of Law and liberal democracy in the Global South
In the Global South there has been an historical rejection of liberalism because
permitted gross injustices through the civilising mission of colonialism.
It has been argued that ROL theories embody a particular
Western conception of liberal human rights and democracy which is not always applicable in different cultural contexts;
Thicker conceptions of the ROL which requires laws to be
o be democratically legitimate and the protection of substantive liberal rights is inherently Westernised
The universalisation of a Western conception of the ROL is not conducive to
the historical, political and social contexts of the Global South.
n the Global South, there have been frequent populist movements for
greater judicial activism which formal ROL theory seeks to constrain.
This is because the ROL is associated with concrete political demands and an inherent distrust of democratic institutions.
Contextualised and decontextualised ROL
Need a contextualised theory of the ROL because a de-contextualised theory ignores who it advantages and who it disadvantages. A new ROL theory should seek to challenge deep-rooted inequalities which includes positive obligations for the state.
However, if the judiciary were to act progressively to instigate social change;
- This subverts the separation of powers
- Undermines the supremacy of legislation
background of rule of law in global south
he breakout of violence in Pakistan post the dismissal of the Supreme
Court judge by the President, Musharaf led to a situation where the entire
legal community erupted over what was perceived to be a complete
contravention of notions of the rule
The courts in the lead up to the dismissal of the PM had been taking a far
more
activist approach. They had been attacking corrupt practices in
Pakistan, and had been pushing for a more substantive rights based
approach to legal decision making.
The movement
what did they want
ovement that saw the Western
system of democracy and rule of law as the ideal and wished to
implement that in their own country, but according to their particular
context
criticism of the movement/judicial activism of the court
the rule of law as becoming deeply politicised and therefore in
trouble of seeing the whole society
competing conceptions of the Rule of Law can be divided into
“formal” and “substantive” versions
Rule -by law is
disadvantage
governance by law is the minimum necessary condition of the Rule of Law.
meaningless when tyrannical or dictatorial regimes retain the power to declare what the law is and alter it at their convenienc
Formal legality
procedural legality
- Principles of Fuller’s inner morality of law e.g. enerality, clarity, public promulgation, temporal stability, substantive consistency, absence of retroactive application, a substantial degree of adherence by officials and subjects, and the reasonable possibility of compliance by the subjects with the promulgated rules
- Raz: independence of the judiciary, principles of natural justice, judicial review, access to justice, and limits on the discretion of crime preventing agencies
- Summers: rule-making bodies, independent tribunals and other redress mechanisms, civic education of citizens, an independent legal profession, and legal academia
Democratic legality
requires the conformity of governmental action to a valid law but also requires such law itself to be democratically legitimate.
The thinnest substantive version is
includes individual rights into concept of democratic legality e.g. property, contract, privacy
The second substantive brand of Rule of Law adds
Civil and political rights
thickest substantive version includes
socio-economic or social welfare rights in addition to individual and political rights
he common sense of the rule of law within Western societies is
democratic legality with individual rights
the core of Rule of Law theory
is provided by formal legality and that Rule of Law includes at least that.
he debate between formal and substantive versions of the Rule of Law may be understood.
a concern with the seepage of politics into law
The formalists fear that the incorporation of politically-contested notions such as the various kinds of rights may overburden the concept and hence render it devoid of any independent value.
judicial activism.
active political involvement of judges in contentious social issues.
Judges, who are usually appointed rather than elected, interpret the law in such a way as to change its original meaning and intent
Judicial activism can take many forms: it may simply mean that judges
are speaking out on controversial ethical and political issues when such pronouncements are not really proper to the role of a judg
Judicial activism cmean using one’s position as a judge
o radically reinterpret and rewrite the law, to suit trendy political opinion or to enforce a stifling political correctness.
a focus on “thin” definitions places emphasis on
procedures through which rules are formulated and applie
A “thick” definition delineates positively
n delineates positively the rule of law as incorporating such elements as a strong constitution, an effective electoral system, a commitment to gender equality, laws for the protection of minorities and other vulnerable groups and a strong civil society.
The Philippine judicial system at the local level is
corrupt, allowing wealthy individuals to win cases through unlawful means
Tamanaha has highlighted a more recent form of this debate, the tension between “two core ideas”
“the classical rule of law ideal that there are independent legal limits on law itself” and (2) “legal instrumentalism, . . . that law (and hence the Rule of Law) is a means for political, social and economic ends
The thicker theories of Rule of Law appear, in contrast, to be concerned primarily with its utility for
the rule of law is only meaningful
redistributions of political, social, and increasingly economic, power.
the Rule of Law is meaningful only because, and to the extent that, it helps secure such ends.
formal legality achieves the valuable social goal of
ensuring a minimal level of liberty by constraining the exercise of governmental powers
- Limits gov, they are subject to the law
substantive conceptions of the Rule of Law that also seek to
advance the core liberal aims of enhancing the autonomy of the citizen and safeguarding basic liberties from the state’s intrusion.
the extent that both formal and substantive conceptions
arbitrarily limit the ends which the Rule of Law may serve, they become arguments for maintaining status quo particularly in societies where law is relatively efficient.
The sustained assault from the Left undermined the claim that law, especially public law adjudication,
could be separated from politics and could be undertaken in a largely formal manner
What did CLS claim
laws are indeterminate, undermining the formal rule of law
CLS standpoint was not, for the most part, that law is in fact radically
indeterminate and that judges act politically in the sense that they decide individual cases based largely upon their political leanings or affiliations.
If CLS standpoint was not, for the most part, that law is in fact radically indeterminate and that judges act politically in the sense that they decide individual cases based largely upon their political leanings or affiliations
WHAT does it mean then?
logically indeterminate while being in fact quite determinate.
While legal rules, precedents and statutes may be given different interpretations, in reality they are often interpreted in consistent ways with the result that the law changes very slowly.
Thus, the lasting legacy and value of the CLS critique, building on the earlier work of the Realists, is that it has made it increasingly difficult to
distinctions between law and politics
In much of the Global South constitutionalism
is weak and democracy is thin or procedural. And yet, the usage of law to further coercive state power is pervasive.
Global South state
bureaucratic-administrative state has failed to transform in many places in the Global South into a welfare state,
what is the question
If the dominant conceptions of formal and substantive (liberal rights- oriented) legality are rooted in the political and socio-economic contexts of Western democracies, are these suitable models for postcolonial states and transitional democracies of the Global South?
there is the demand to articulate visions of the Rule of Law
are tied in with concrete questions of constitutional politics
what can we not do
plagiarizing universalist abstract answers to some of these questions from the North—such as the uncritical adoption of separation of powers—may become an obstacle to the quest for socio-economic justice that is increasingly at the heart of the Rule of Law in the Global South
what should we do in global south
answer visions of rule of law e.g.
Does the rule of law . . . privilege ‘good’ and ethically viable ways of
structuring representation? . . . Does it favour federalism over unitary, republican over monarchical, secular over theological, flexible over rigid constitutional formats? Does it privilege plenary judicial review over forms of legislative, executive and administrative action? .may hierarchies of administration of justice devised, justices appointed and their autonomy and accountability be concretely define
In opposition to abstract theorization, a call is thus being made to envision the rule of law
with the explicit ideological agenda of challenging deep-rooted inequalities in both the public and private domains, which includes positive obligations of the state to make law for the disadvantaged, deprived
Rule of law in global south must be
Rule of Law must be mindful of historical inequalities and simultaneously imbued with visions of more egalitarian futures
how is law relatively indeterminate
Can be changed by judicial decision making, legislature
Judicial decision making is
rigid, stable and conservative. b/c judges whose decisions then become binding on everyone come from limited classes and groups in society and share certain class commitments
are modern liberal legal systems wicked
yes, some parts
e.g. indigenous, anti terrorism law, illegal immigrants
why do disadvantaged groups benefit from judicial activism?
they compel state to be more egalitarian so they can only make things better
majorities would lose
Is substantive conception of rule of law negative or positive? Explain
negative discourse
by focusing on individual rights, prevent state from doing things, but cannot compel them to do anything. E.g. redress historical imbalances.
what was the dismissal of CJ a symbol of?
authoritarian and military rule even which highest judicial officer in the country was not proteced from arbitrary power of the military regime
- Challenged judicial independence and rule of law
Lawyers movement protesting against dismissal of CJ,
what did they call for
democracy, rule of law , constitutionalism, judicial independence
Can’t have meaningful substantive democracy without
rule of law or justice. STRONG AND JUST LEGAL INSTITUTIONS
According to Cheema, when does the judiciary become a strong, popular institution with lots of public support
when they stopped becoming apolotical, neutral institution
when they got involved in social-economic redistribution of power, trying to create to compel state to become more egalitarian
suo motu action
Courts under s 184(3) of the Pakistan Constitution can take sou moto action based on public interest. Special power of Indian and Pakistani Courts
Judicial muteness
- low level of judicial independence and low level of judicial involvement
courts don’t do much and do little b/c of strong government and strong regimes. e.g. cambodia, singapore
Judicial restraint
High level of judicial independece but do very little to challenge the executive
e.g. japan. Australia has high degree of indepenence, has capacity to do a lot but chooses not to
Is judicial restraint political?
Cheema argues that judicial restraint is equally political.
- Capacity to challenge executive but choose not to because they are comfortable with elite consensus and status quo
Judicial activism
High judicial independence + high judicial involvement e.g. korea, indonesia
- said to be overly political
Politicisation of the judiciary
low judicial independence + high involvement e.g. Thailaid 2006-2010
traditional status of judges
strictly neutral and reluctant to become involved with what were seen as purely ‘political’ issues. because they are neither elected nor accountable, should confine themselves solely to issues of legal interpretation and the maintenance of the rule of law
how does liberal judges influence politicisation of judiciary
challenge the power of government if they felt human rights were under threat. e.g. british judges
why shouldn’t judges answer political issues?
1.
members come from such a narrow social background
why shouldn’t judges answer political issues?
2.
- not elected and are therefore not accountable by parliament or public.
- can make decisoins that are against national interest or public opinion
The Supreme Court Bar Association of Pakistan declared the suspension of the Chief Justice as
assault on independence of judiciary
Lawyers’ Movement was the name given to the
popular mass protest movement started by the lawyers of Pakistan in response to the actions of 9th March 2007 by the country’s military ruler
New’ constitutionalism in the South
India, South Africa, Colombia … substantive rule of law
Constitutionalism’
recognizes the need for government with powers but at the same time insists that limitation be placed on those powersm.
A government which goes beyond its limits loses its authority and legitima
what is the role of judiciary in pakistan
strengthens demotratic trends in pakistan
what is the substance of democracy? what does it include
rule of law is the substance of democracy
it includes, supremeacy of the constitution, equality before the law and civil liberties
history of pakistan’s democracy
blatant disregard.
Legislature and executive act undertake their functions as if they have unlimited power or are above the law
to safeguard democracy in pakistan what must we ensure
judicial independence.
protect citizen’s rights. safeguard rule of law
Since appointment to Supreme Court in 2005, what did Chaundry began to exercise
how did this affect the cases
began to exercise the court’s suo moto powers
took on cases re corruption of bureaucracy, abuse of police powers
these cases won, gaining popularity among populace
judicialization of politics
expansion of the province of courts and judges in determining public policy outcomes
what are public policy questions courts are answering
religious liberties and privacy to property, trade and commerce, education, immigration, labor, and environmental protection.
in US, courts have
long played a significant role in policymaking
Judicial Restraint is a theory of judicial interpretation that encourages judges to
do not strike down law unless they are obviously unconstitutional. Judicially-restrained judges respect stare-decisis, the principle of upholding established precedent handed down by past judges.
Judicial restraint and deference
urges judges considering constitutional questions to grant substantial deference to the views of the elected branches and invalidate their actions only when constitutional limits have clearly been violated.
judicial restraints
courts should hesitate to
use judicial review to promote new ideas or policy preferences. In short, the courts should interpret the law and not intervene in policy-making.
Under judicial restraint, judges should always decide cases based on
- The original intent of those who wrote the constitution.
- Precedent – past decisions in earlier cases.
- The court should leave policy making to others.
Judicial activism describes judicial rulings suspected of being based on
personal or political considerations rather than on existing law.
According to the idea of judicial activism, judges should use their powers to
correct injustices, especially when the other branches of government do not act to do so. This means that Judicial activism has a great role in formulating social policies on issues like protection of rights of an individual, civil rights, public morality, and political unfairness.
The higher judiciary (comprising of the Supreme Court and the High Court is largely perceived by the people of India as an institution that
champions their fundamental rights, breaks on the arbitrary exercise of power by any public functionary and this has increased the importance of judiciary manifold.
In India, judiciary interferes with
every aspect of the social and political life through the tool of judicial activism.
During the last few years, Judicial Activism has opened up a new dimension for the Judicial process and has
given a new hope to the millions who starve for their livelihood. There is no reason why the Court should not adopt activist approach similar to Court in America , so as to provide remedial amplitude to the citizens of India
How may substantive rule of law be achieved in global south?
through judiial activism
Indian Judiciary & Rule of Law
Supreme Court and the various High Courts through Judicial activism and public interest litigation, have made significant contributions towards protecting freedoms and preventing human rights violations and abuses, thereby ensuring that the Rule of Law and respect for citizens’ rights
judicial activism in pakistan is seen as
by lawyers and the media as a positive development
According to cheema Chaudhry Court’s public law jurisprudence can hardly be labelled as judicial activism because
refers more appropriately to courts stretching established jurisprudential principles’ and developing novel interpretations of law
How is the Chaundry Court display proactivism
- initiating suo motu
- human rights cases
- turned the Original Jurisdiction of the Supreme Court into a tool of Public Interest Litigation (PIL)
While the Chaudhry Court was increasingly criticized for engaging in judicial activism, that critique
is weak. it rests on the conservative and unrealistic notions of an apolitical judiciary and hard distinctions between law and politics.
judicialization of politics is the norm around the world, and most recently courts in Asia have become noticeably activist
some courts have actively engaged in judicial actiism
by intervening in politics to promote good governance
- checks and balances on executiv abuse
- uphold supremacy of law
- protect citzens rights
The Korean and Indonesian constitutional Court are good example of
judicial activism in direct support of democratic governance and constitutionalism by adjudicating politically charged cases
How can judicial politicisation be bad e.g. thailand
judges become policy-makers and elite seek to influence court decisions. Elites have relid on courts to advane their interests and block reform attempts
How can judicial politicisation be bad e.g. thailand
judges become policy-makers and elite seek to influence court decisions. Elites have relid on courts to advane their interests and block reform attempts
- lack of impartiality, political bias
judiciary goes is largely driven by the type of regime: courts seem more activist in
in established, vibrant democracies (e.g., South Korea, Indonesia, India, Taiwan)
judges are far less assertive in
semi-authoritarian and authoritarian settings (e.g., China, Cambodia, Malaysia).
