Maartje De Visser
Singapore Management University
Editors’ note: this blog post is a reply to a piece by Fabian Duessel on ‘Getting to know AACC Members’ published on the IACL-AIDC Blog on 2 February 2019 and available here.
In his recent blogpost ‘Getting to Know AACC Members’, Fabian Duessel points to the need for scholars to improve their understanding of the composition, powers and work environment of Asian courts with a constitutional mandate. His piece highlights the contribution that the Association of Asian Constitutional Courts and Equivalent Institutions (AACC) can make to such an enterprise through the dissemination of relevant materials. His invitation echoes the call forcefully made by Ran Hirschl, among others, to ensure that comparative constitutional research is truly comparative in its focus. This means that Asia’s courts should not merely be perceived of as examples showcasing transplant theory in action: the classic Asian story being how the Korean Constitutional Court was modelled after the German Federal Constitutional Court and in turn served as the main inspiration for the creators of the Indonesian Constitutional Court. Asia’s courts should rightly be examined on their own terms. To that end, resources such as the AACC publications are valuable in two ways. On the one hand, the information contained therein is supplied by the AACC’s members themselves: this allows the researcher to get a sense of how these institutions perceive themselves, their attributes and their role within the wider constitutional settlement and how they wish to present themselves vis-à-vis the outside world. On the other hand, the AACC materials published to date are all drawn up in English, further alleviating the problem of easy accessibility of information that has been identified as one of the reasons for the original neglect of Asia and its institutions in comparative constitutional law.
I agree that intra- as well as inter-regional comparisons of the design of constitutional courts are important. The main argument advanced in this post, however, is that the AACC should not only be conceived as a source of materials for comparative constitutional research; rather, it should also be seen as an object of study in its own right. Two lines of inquiry suggest themselves: the AACC as a vehicle to promote constitutionalism, and the AACC as a manifestation of a quasi-institutionalized form of judicial contact.
AACC as a champion of constitutional values
According to Article 3 of its Statute, the AACC is intended to promote the holy trinity of constitutionalism: ‘the protection of human rights; the guarantee of democracy; [and] the implementation of the rule of law’. These objectives are to be realized mainly in three ways. First, through biennial congresses during which members and invited observers and guests can exchange information and experiences. Second, through the provision of technical assistance to improve judicial independence. Third, through collaboration with other organizations dealing with constitutional matters. To that end, the AACC regularly sends representatives to conferences organized by similar judicial associations in other regions, has acceded to the World Conference on Constitutional Justice and concluded a Memorandum of Understanding with the Venice Commission.
The AACC, then, has clearly set an ambitious agenda for itself and it may legitimately be asked how its actual performance measures up as it approaches its tin anniversary in 2020. In earlier work, I have been relatively skeptical of the AACC’s contribution to fostering respect for bedrock constitutional values and enhancing the performance of constitutional adjudication in Asia. Notably, for the first years of its existence, the principal means to do so was through its congresses. While these have undoubtedly contributed to judicial socialization among AACC members, their usefulness for exchanging views on challenges faced or effective coping strategies is (inevitably) limited in two ways. First, by the short duration of these gatherings, typically lasting less than two full days every two years. Second, by the fact that the themes chosen for discussion have been framed in broad and generic terms (e.g. ‘constitutional justice in Asia at present and in the future’). In addition, although the AACC’s current membership spans far and wide in geographic terms, the Association includes fewer than a third of all institutions in the region that dispense constitutional justice, with India’s active Supreme Court as a particularly notable absentee.
Yet, there have been recent changes to the AACC’s internal organization that can enable it to augment its contribution to the realization of constitutionalism in Asia. In 2016, the AACC Board agreed to establish permanent Research, Training and Administrative Secretariats housed at the Korean, Turkish and Indonesian constitutional courts respectively. Part of the duties of the Secretariats is arranging events that will provide additional opportunities for learning and information-sharing. To this end, the Training Secretariat runs an annual week-long fundamental rights summer school for junior judges and supporting staff. The Research Secretariat – of which Fabien Duessel is a deputy director – runs a one year secondment program and is tasked with setting up a database with landmark rulings by AACC members as well as conducting comparative studies. The first of these studies was neatly summarized in Fabian Duessel’s original blogpost. This sort of ‘outreach activity’ appears to be geared at enticing other courts to apply to join and thereby allow the Association to become a genuinely pan-Asian enterprise.
These new initiatives by the AACC should be monitored for results, also with a view to formulating further suggestions for improvement to allow the Association to meet its self-imposed targets. This is important for two reasons. First, several member courts operate in countries that face serious threats to constitutional values (think of Turkey, Myanmar, the Philippines). Second, Asia remains the only region in the world that lacks a transnational judicial body that could otherwise don the mantle of transnational advocate of democracy, fundamental rights and the rule of law.
AACC as an institutionalized judicial network
When Anne-Marie Slaughter first wrote about ‘judicial networks’, the phenomenon mainly took the form of loosely grouped epistemic communities in which members interacted with each other in relatively informal settings. Since then, we have witnessed the mushrooming of (quasi-)institutionalized platforms that allow for regular contact among a stable set of participants.
It is clear that the AACC is designed, and functions, as a formal judicial network. As I have argued, in my research pertaining to such networks in the constitutional arena, there are at least three dimensions of institutionalized networks like this that warrant exploration. First, consider the extent to which they practice what they preach: in other words, are networks transparent about the activities engaged in, thereby allowing for a measure of judicial accountability? In the case of the AACC, the website maintained by the Research Secretariat is certainly a step in the right direction. Secondly, consider the internal social dynamics among the members. It is too simplistic to think of judicial networks as gatherings of like-minded professionals committed only to the promotion of constitutional ideals. As with any social grouping, there will be leaders and laggards in judicial networks, with the former typically seeking to set the agenda of the network to match their own priorities or concerns. Understanding which courts belong to which category will help in understanding the choice in activities and themes that the network pursues at any point in time. Within the AACC, the Korean Constitutional Court has emerged as the proverbial primus inter pares, and it is thus no coincidence that the permanent secretariat with the heaviest and largest portfolio is physically located within that court. Finally, there is the question about what institutionalized networking amounts to. When AACC courts are rated as more independent or when constitutional rights are better protected, can this be attributed to courts’ membership of the Association and if so, what is the strength of that correlation?
It is by now accepted that the presence of a citation of a foreign precedent is not determinative of the existence of foreign influence on domestic adjudication. In the same way, the actual impact of real-time, face-to-face networking must be demonstrated through empirical research. The efforts undertaken by Fabian Duessel and his colleagues within the AACC Research Secretariat to study and publicly share insights about how its members deliver constitutional justice in Asia will be vital in this regard.
Maartje De Visser is an Associate Professor of Law, SMU School of Law
Suggested citation: Maartje De Visser, ‘The AACC – and Not Only its Members – as an Object of Constitutional Research’ IACL-AIDC Blog (20 February 2019) https://blog-iacl-aidc.org/2019-posts/2019/2/20/the-aacc-and-not-only-its-members-as-an-object-of-constitutional-research