Challenges in constitutional adjudication II

The process of seeking justice has become a global trend in recent years. However, in comparison to other regions, the culture of impunity has been deemed as a major obstacle to most Asian countries for a long time. Influenced by local or transnational contexts, few Asian countries adopted criminal sanctions to address the issues of responsibility. For example, South Korea adopted the domestic trial to deal with the criminal responsibility of former Presidents. East Timor and Cambodia, under international interference, established the hybrid international criminal tribunals to prosecute the perpetrators. In addition, Taiwan has recently a discussion on the ways to prosecute wrongdoers of the previous authoritarian regime. Against this backdrop, this paper aims to address the features and challenges of these criminal mechanisms have and identify the driving forces that encourage or constrain those Asian countries to deal with the issues of the responsibility of transitional justice.

Courts around the world have developed a wealth of interpretive methods that are supposed to reconcile the tension between faithful readings of the law and legitimate interpretive discretion. One of these interpretive methods is constitutionally conforming interpretation (CCI), which requires judges to select the interpretation that is most harmonious with the constitution when there are multiple reasonable interpretations available. Tasked with interpreting the constitution, the Taiwan Constitutional Court (TCC) has regularly used CCI. The method has enabled the TCC to navigate through some intense political storms and avoid a head-on clash with the political branches of government. CCI, nevertheless, has attracted some criticism from both practitioners and academia.

This paper aims to analyze social policies in Brazil and its relation with the increase of judicialization. The literature on judicialization of public policies in Latin America considers that the high rates of litigation may be a consequence of economic crises and problematic government plans. These constitutions have sponsored the coexistence between generous socioeconomic rights and neoliberal economic agenda. This has led to intense litigation movements. In Brazil, social policies have been subject to intense cuts and pressures. In the process of implementation of those policies, bureaucracies narrow the criteria for benefits. I argue that the possibility that these bureaucratic-administrative decisions are reviewed by the judiciary constitutes a palliative remedy for the erosion and dismemberment of social policies. It is a limited response. I defend the idea that these individual claims do not challenge political and power dynamics and may eventually weaken the social reaction.

Literature on comparative constitutional law usually treats two different political rights as one: the right to vote and the right to register as a voter. The same frequently happens with international law. We can assume that those rights are coincidental in many democratic countries, indeed. However, as I posit using Brazil as an example, this is not a conceptual necessity, and differentiating between those rights is recommended for some reasons. Besides the methodological relevance, there are political and social gains in this differentiation. Special requirements to register as a voter, such as deadlines, procedure, place e.g., may apply and restrict political participation even in countries that formally recognize a universal right to vote. To escape the formalistic trap, it is important to check whether these conditions meet a democratic requirement. Also, in young democracies, having the title of a voter means recognition as a citizen, and thus to be treated as free and equal.

Despite being an obstacle to legislative majoritarianism, judicial review itself often turns to simple majorities while deciding a case. Recently, authors such as Krishnamurthi, Waldron, and Shugerman have questioned the usage of simple majorities in judicial review and supported establishing supermajorities. In doing so, they have been mostly inspired by a general analysis of voting rules and the experience of some states in the United States (such as Ohio, North Dakota, and Nebraska). Most authors advocating for supermajorities tend to ignore the effective usage of the mechanism in comparative law. Countries such as Mexico, Poland, Georgia, Czech Republic, Chile, Costa Rica, or Corea have experience with supermajorities, and understanding its functioning is crucial to the supermajorities debate. I offer an account of the comparative debate as an input to a defense of the supermajorities conceived as deferential mechanisms.