Getting to Know AACC Members

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Fabian Duessel

Asian Association for Constitutional Courts and Equivalent Institutions

Asia is a strong political and economic force in the world, and constitutional legal scholarship focusing on this region has been growing in recent years. At the same time, Asian institutions of constitutional justice have started to build platforms for cooperation and exchange. In fact, the Association of Asian Constitutional Courts and Equivalent Institutions (AACC), established in 2010, currently already consists of 16 member institutions. An important first step in starting to engage more with the work of these courts, particularly for the purpose of comparative work, is a better understanding of the context in which they arose and currently operate, how they are structured and the extent of their jurisdiction.

With this post I hope to provide a glimpse into the diversity of context, structure and jurisdiction within the member institutions of the AACC. Readers who wish to engage in more detailed analysis will find useful materials in the AACC’s Secretariat for Research and Development’s (SRD) first publication, Jurisdictions and Organization of AACC Members, available on the AACC SRD website. The publication’s contents on individual AACC member institutions are also separately available via the AACC SRD online database. This post is a shortened and modified excerpt from the introductory chapter of the publication. For the full chapter, see Fabian Duessel, ‘Introduction: Connecting Institutions of Constitutional Justice in Asia’, in: AACC SRD (ed.), Jurisdictions and Organization of AACC Members (AACC SRD / Constitutional Court of Korea, 2018), pp. 2-10.

Understanding different contexts

The context within which each AACC member institution was established varies greatly, and has direct institutional consequences. An example is the Supreme Court of the Philippines, the AACC member with the longest history. It was established in 1901 while the Philippines was still under the rule of the USA. According to the AACC Member Fact File submitted to AACC SRD by the Supreme Court of the Philippines, the ‘judicial organization… was conceived by the American lawyers in the Philippine Commission and was patterned in its basic structures after similar organizations in the United States... The Anglo-American legal system under which the Supreme Court of the Philippine Islands was expected to operate was entirely different from the old Spanish system the Filipinos were familiar with. Adjustments had to be made; hence, the decisions of the Supreme Court during its early years reflected a blend of both the Anglo-American and Spanish systems.’

AACC members consist of institutions which operate in civil law and common law environments, as well as within contexts that may be described as hybrid environments. Due to particular political and historical circumstances, some possess unique powers and authorities, at least within the AACC context. It is this rich diversity evident among the AACC members which makes the enterprise of comparative constitutional research within the AACC particularly worthwhile.

Observing organizational options

Various models for judicial appointment exist. Examples of a system of cooperation can be found in AACC member institutions where one branch of government enjoys the sole right to propose candidates for appointment, while another branch is tasked with providing or withholding consent. For the appointments to succeed, cooperation between the two branches of the government is necessary. In contrast, appointment systems in some other countries involve more than two branches of government and may specifically require that consent from various branches of government be secured. For example, AACC members in countries such as Indonesia, Korea and Mongolia conduct an appointment process where different branches of the state have the right to respectively nominate a certain number of candidates.

Regarding the terms of office, some AACC member institutions have a term limit of 5 years, such as in Myanmar, whereas others provide for a term of 12 years, such as in Turkey. Whether fixed terms are renewable is another issue of interest. Other AACC institutions do not specify a fixed term, and instead only impose a fixed retirement age, such as in Malaysia. Interestingly, at some institutions the term of office of the Chief Justice or equivalent is shorter than that of the other members of the bench. Two examples are Indonesia and the Kyrgyz Republic.

Whether a specific department of constitutional research exists, and how many research staff are employed, varies from institution to institution across the world. That is also the case within the AACC context. Taking the Constitutional Court of Korea as an example, around 64 Constitution Research Officers (CRO), also known as Rapporteur Judges (hereafter ‘Rapporteur Judges’), assist the Justices in the delivery of judgements. Some of them are directly allocated to work with individual Justices, while others are not assigned to Justices and instead work within specific groups focusing on a certain subject area, such as civil liberties, property rights or social rights. The Rapporteur Judges are also organized separately from the Secretariat of the Constitutional Court of Korea. This is in contrast, for example, to the organization of constitutional research at the Constitutional Court of Indonesia. In Indonesia, staff directly engaged in constitutional research are called Researchers, and they operate within the organizational unit called the Research Center. This Research Center itself operates under the authority of the Secretary General of the Constitutional Court of Indonesia.

Appreciating jurisdictional diversity

Readers who keep broad definitions of constitutional jurisdictions in mind will notice that across the AACC, most member institutions enjoy the powers of abstract review and the resolution of competence disputes (see the ‘Member Fact Files’ referred to above). Individual access to constitutional justice also ranks relatively high. A significant number of members exercise the powers of concrete review, or what may be described as an equivalent function. However, only a minority of AACC members exercises the power of impeachment or party dissolution. The comparison of constitutional jurisdictions must be undertaken with care, since the complexity of finding the most fitting terminology can affect the accuracy of making a precise functional comparison. It is therefore important to see how courts themselves describe their jurisdictions, something that is now easily accessible via AACC SRD’s publications and the online database.

Future research

Readers who thoroughly engage with the aspects discussed above will be well equipped for further research in relation to the work of member courts. Jurisdictions and Organization of AACC Members provides a wealth of materials that should assist with identifying various other potential research themes. Conducting further comparative analysis of specific jurisdictions across AACC members is also an immediate future task of AACC SRD. Future AACC SRD Conferences may systematically analyse functionally equivalent jurisdictions of AACC member institutions, and precisely and accurately present in detail the practical similarities and differences. Through this kind of work AACC SRD hopes to both foster deeper mutual understanding, and develop material that is of interest to the global research community.

Fabian Duessel is one of the Deputy Directors of the Secretariat for Research and Development (SRD) of the Association of Asian Constitutional Courts and Equivalent Institutions (AACC). Prior to joining AACC SRD, he was a research fellow at the University of Tuebingen’s Faculty of Law, Germany.

Suggested citation:  Fabian Duessel, ‘Getting to know AACC members’ IACL-AIDC Blog (1 February 2019)