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Whither Converging Narratives Of Justice In Transition? Transitional Justice And Judicial Reform In Taiwan, Agnes S. Schick-Chen
Whither Converging Narratives Of Justice In Transition? Transitional Justice And Judicial Reform In Taiwan, Agnes S. Schick-Chen
Washington International Law Journal
Referring to Taiwan’s recent transitional justice legislation as a first tentative step towards the possibility of judicial solutions for problems of injustice dating from the authoritarian era, this paper elaborates chances and difficulties of introducing the judiciary to the ongoing processes of coming to terms with the past in Taiwan. It intends to argue that apart from the specific circumstances of Taiwan’s transition to democracy after the lifting of martial law in 1987, the avoidance of a judicial approach to transitional justice was both caused by and the reason for a deficit in narratives of judicial justice. Together with the …
Victim Participation In Japan, Erik Herber
Victim Participation In Japan, Erik Herber
Washington International Law Journal
In 2008, a victim participation system was introduced in Japan, which enabled crime victims to participate in criminal proceedings. One of the goals of the system was to correct the wrong done to victims due to their lack of previous involvement, thus giving crime victims what they “naturally desire.” Employing Malcolm Feeley’s analytical framework to make sense of planned legal change, this Article shows that the new system emerged against the background of a combination of international trends: victim activism and public perceptions of crime getting out of hand. It finds that for reasons that are not well understood, only …
Court Reform With Chinese Characteristics, Margaret Y.K. Woo
Court Reform With Chinese Characteristics, Margaret Y.K. Woo
Washington International Law Journal
In Court Reform on Trial: Why Simple Solutions Fail, Malcolm Feeley identified a number of obstacles that undermine reforms of the United States court system. Feeley’s proposed solution was to adopt a problem-oriented “rights strategy”—letting the courts themselves solve their problems through litigation. This is because litigation is a forum in which courts are well placed to identify specific problems and devise pragmatic solutions. This Article takes a look at this proposition in the context of court reforms in China and concludes that courts (and law) are also a reflection of national goals and identity. Any reforms to a …
East Asian Court Reform On Trial: Comments On The Contributions, Malcolm M. Feeley
East Asian Court Reform On Trial: Comments On The Contributions, Malcolm M. Feeley
Washington International Law Journal
I am honored to have my book, Court Reform on Trial: Why Simple Solutions Fail, serve as the organizing framework for this symposium. The enterprise has proven valuable as it provided a reason to assemble a set of articles that focus on important changes in Asian courts in recent decades. Further, it appears that the reforms in three of the countries are loosely related to each other. While Japan had a head start on judicial reforms, both Korea and Taiwan embarked on the same path as soon as they had shed authoritarian rule. China has pursued a more ambitious …
Assessing The Direct And Indirect Impact Of Citizen Participation In Serious Criminal Trials In Japan, Matthew J. Wilson
Assessing The Direct And Indirect Impact Of Citizen Participation In Serious Criminal Trials In Japan, Matthew J. Wilson
Washington International Law Journal
In Japan, the idea of citizen involvement in the judicial process has gained greater acceptance over the past decade. On May 21, 2009, Japan implemented its saiban’in seido or “lay judge system” as part of monumental legal reforms designed to encourage civic engagement, enhance transparency, and provide greater access to the justice system. About eight years before this historic day, a special governmental committee known as the Justice System Reform Council (“JSRC”) set forth wide-sweeping recommendations for revamping Japan’s judicial system. The underlying goals targeted three pillars of fundamental reform, namely: (i) a justice system that is “easier to use, …
Advance Toward "People's Court" In South Korea, Yong Chul Park
Advance Toward "People's Court" In South Korea, Yong Chul Park
Washington International Law Journal
Since 2008, criminal jury trials have been implemented in South Korea with the Citizen Participation in Criminal Trials Act. Under the Act, defendants have the option to choose a jury trial over a bench trial, although jury verdicts, as well as sentencing opinions rendered by a jury, are not binding on the court pursuant to Article 46(2) of the Act. While Korea’s adoption of a criminal jury trial was an ambitious move toward judicial reform, it has faced serious obstacles and has had limited influence over the Korean judicial system. In this Article, I use the five stages of planned …
East Asian Court Reform On Trial: Introduction To The Symposium, Setsuo Miyazawa
East Asian Court Reform On Trial: Introduction To The Symposium, Setsuo Miyazawa
Washington International Law Journal
No abstract provided.
Criminal Court Reform In Taiwan: A Case Of Fragmented Reform In A Not-Fragmented Court System, Kai-Ping Su
Criminal Court Reform In Taiwan: A Case Of Fragmented Reform In A Not-Fragmented Court System, Kai-Ping Su
Washington International Law Journal
This Article examines the character of Taiwan’s criminal court system and proposed court reforms. Taiwan’s criminal court is a not-fragmented system, distinct from the fragmented American criminal court. In fact, with hierarchical control in prosecutorial rulings and central administration of judicial decision-making, Taiwan’s criminal court system can be deemed a relatively centralized and bureaucratic organization. Given this context, when Taiwan’s criminal justice system disappoints the people, judges take the blame for the failures of the system. To resolve the serious problem of public distrust in judges and the court system, Taiwan’s government and the judicial authority make “responding to expectations …
Pushing The Envelope: Application Of Guiding Cases In Chinese Courts And Development Of Case Law In China, Mo Zhang
Washington International Law Journal
The modern Chinese legal system has at least two notable features. First, bearing the civil law tradition, Chinese courts do not follow precedent. Second, under the people’s congress system, the Chinese judiciary has no power to make law. In recent years, however, the Supreme People’s Court of China began building a guiding case system in the Chinese judiciary. The application of guiding cases implicates (a) an expansion of the power of the Chinese judiciary into the field of law-making; and (b) development of case law in China. Chinese guiding cases differ from the common law cases in many aspects, and …
Moving Towards A Nominal Constitutional Court? Critical Reflections On The Shift From Judicial Activism To Constitutional Irrelevance In Taiwan's Constitutional Politics, Ming-Sung Kuo
Washington International Law Journal
The Taiwan Constitutional Court (TCC, also known as the Council of Grand Justices) has been regarded as a central player in Taiwan’s transition to democracy in the late twentieth century. Transforming from a rubberstamp under the authoritarian regime into a facilitator of political dispute settlement, the TCC channelled volatile political forces into its jurisdiction. Thanks to the TCC’s judicial activism, the judicialization of constitutional politics was characteristic of Taiwan’s democratization in the last two decades of the twentieth century. The TCC scholarship asserts that the TCC has continued to play a pivotal role in Taiwan’s constitutional politics in the twenty-first …
Globalization, Rights, And Judicial Review In The Supreme Court Of India, Manoj Mate
Globalization, Rights, And Judicial Review In The Supreme Court Of India, Manoj Mate
Washington International Law Journal
This article examines the broader and evolving role of the Supreme Court of India in an era of globalization by examining the Court’s decisionmaking in rights-based challenges to economic liberalization, privatization, and development policies over the past three decades. While the Court has been mostly deferential in its review of these policies and projects, it has in many cases been active and instrumental in remaking and reshaping regulatory frameworks, bureaucratic structures, accountability norms, and in redefining the terrain of fundamental rights that non-governmental organizations (NGOs) and other litigants have invoked in challenges to these policies. This article argues that the …
The U.K. Supreme Court At War, Po Jen Yap
The U.K. Supreme Court At War, Po Jen Yap
Washington International Law Journal
This article contends that the underlying normative assumptions of civil libertarians and national security “executive unilateralists” are premised on a variant of the “nirvana fallacy.” In other words, civil libertarians generate a best-case scenario for rigorous judicial oversight over executive action during emergencies and compare it to the worst-case scenario for executive action; the reverse holds true for executive unilateralists. In practice, the Supreme Court of the United Kingdom has been cognizant of the institutional advantages and limitations of its office when it adjudicates national security disputes, and has not succumbed to the criticisms of scholars in either camp. Instead, …
Foreign Precedents In Constitutional Adjudication By The Supreme Court Of Singapore, 1963-2013, Jack Tsen-Ta Lee
Foreign Precedents In Constitutional Adjudication By The Supreme Court Of Singapore, 1963-2013, Jack Tsen-Ta Lee
Washington International Law Journal
This article surveys the use of foreign precedents in constitutional adjudication by the Supreme Court of Singapore for over half of a century during the terms of the first three Chief Justices—Wee Chong Jin (1963–1990), Yong Pung How (1990–2006), and Chan Sek Keong (2006–2012)—and the first year in office of the fourth Chief Justice, Sundaresh Menon (2012–2013). It concludes that while judges have always cited foreign case law, they have only actually applied foreign cases where the wording of the Constitution and the constitutional arrangements in Singapore are fairly analogous to the constitutional texts and arrangements upon which the cases …
Changing The Rules Of The (International) Game: How International Law Is Turning National Courts Into International Political Actors, Osnat Grady Schwartz
Changing The Rules Of The (International) Game: How International Law Is Turning National Courts Into International Political Actors, Osnat Grady Schwartz
Washington International Law Journal
Courts are known to be political actors. National courts play the political game in the national domain. International courts play it in the international sphere. This article studies the transformation of national courts into international political actors (IPAs), and the part international law plays in so making them. The article identifies, categorizes, and demonstrates the influence of national courts and judges on international relations (IR), separating the influence into two main categories: direct and indirect. Direct influence, is the effect of a national court taking a position on international issues in concrete situations with immediate IR implications. Indirect influence is …
Finding Justice Scalia In Burma: Constitutional Interpretation And The Impeachment Of Myanmar's Constitutional Tribunal, Dominic J. Nardi Jr.
Finding Justice Scalia In Burma: Constitutional Interpretation And The Impeachment Of Myanmar's Constitutional Tribunal, Dominic J. Nardi Jr.
Washington International Law Journal
While the comparative courts literature has yielded valuable insights into confrontations between political elites and judges, we still know relatively little about if and how jurisprudential methodology affects the ability of constitutional courts to survive such crises. How does the choice between originalism versus living constitutionalism affect a court’s relationship with the other branches of government? Do political elites tend to be more hostile towards certain methods of interpretation? The 2012 impeachment of Myanmar’s Constitutional Tribunal presents an interesting example of the interplay between jurisprudence and politics. After fifty years of military rule, Myanmar’s 2008 Constitution produced a new civilian …
Sources Of Law, Sources Of Authority: The Failure Of The Philippines' Code Of Muslim Personal Laws, Gregory M. Chiarella
Sources Of Law, Sources Of Authority: The Failure Of The Philippines' Code Of Muslim Personal Laws, Gregory M. Chiarella
Washington International Law Journal
The Code of Muslim Personal Laws of the Philippines (“CMPL”) was established in 1977 as part of an effort to quell longstanding violence between Christians and Muslims in the predominantly Christian country. This codification of Islamic laws in the areas of marriage, divorce, and inheritance provided for a system of Shari‛a courts that would operate within the larger framework of the legal system of the Philippines. Three and a half decades later, the CMPL has had little effect. The Shari‛a courts are understaffed and underutilized, accounting for less than 0.1% of the caseload in the Philippines. The CMPL is plagued …
Civil Justice And The Constitution: Limits On Instrumental Judicial Administration In Japan, Mark A. Levin
Civil Justice And The Constitution: Limits On Instrumental Judicial Administration In Japan, Mark A. Levin
Washington International Law Journal
Numerous works have shown how central judicial administrators in Japan may ideologically influence the nation’s lower court judges. This piece draws upon these reports to analyze and frame these circumstances as “instrumental judicial administration,” qualitatively distinguishing the various means used by administrators and reflecting on their degrees of impact on civil procedural justice. Then, moving from description to prescription, the work provides a thorough consideration of the underlying legal context, broadly drawing from constitutional text and history, statutory text, and case law, before launching a search for solutions in its conclusion. Although the immediate focus is on how instrumental judicial …
Access To Justice For The Poor: The Singapore Judiciary At Work, Gary Chan Kok Yew
Access To Justice For The Poor: The Singapore Judiciary At Work, Gary Chan Kok Yew
Washington International Law Journal
This Article examines the concrete efforts and programs of the Singapore judiciary to maintain and enhance access to justice for the poor. This examination is undertaken via overlapping economic, procedural, and institutional approaches. The Article will examine three main contentions. First, that the Singapore judiciary’s concrete efforts in maintaining and promoting access to justice for the poor have been fairly comprehensive and pro-active. Second, that abstract constitutional discourse on the right of access to justice and the associated rights of legal representation and legal aid are virtually absent in Singapore. Thus, the judicial practice for enhancing access to justice for …
The Vietnamese Judiciary: The Politics Of Appointment And Promotion, Penelope (Pip) Nicholson, Nguyen Hung Quang
The Vietnamese Judiciary: The Politics Of Appointment And Promotion, Penelope (Pip) Nicholson, Nguyen Hung Quang
Washington International Law Journal
This Article contends that while the Vietnamese judiciary and court system have been the subject of not insignificant reforms over the last two years, they remain political institutions. More particularly, our analysis of the manner and criteria for the appointment and dismissal of judicial officers characterizes these officers as having to act within the auspices of the Communist Party of Vietnam, despite reforms having been introduced that cast the courts as more independent.
One Country, Three Systems? Judicial Review In Macau After Ng Ka Lling, Judith R. Krebs
One Country, Three Systems? Judicial Review In Macau After Ng Ka Lling, Judith R. Krebs
Washington International Law Journal
The Ng Ka Ling decision by the Hong Kong Court of Final Appeals and its reversal by the Standing Committee of China's National People's Congress, raise serious concerns regarding the adequacy of judicial review and the protection of the rule of law in the new special administrative regions under China's "One Country, Two Systems" approach. Judicial review lies at the forefront of this controversy because it largely delineates the contours of local autonomy and the extent to which those who experience legal violations will have remedies. This Comment explores the roots of the conflict in Hong Kong and examines whether …
Primus Inter Pares: Is The Singapore Judiciary First Among Equals?, Karen Blőchlinger
Primus Inter Pares: Is The Singapore Judiciary First Among Equals?, Karen Blőchlinger
Washington International Law Journal
Chief Justice Yong Pung How has implemented many changes in the Singapore judicial system since his appointment to the post in 1990. The reforms have concentrated on active case management, providing mediation as an alternative mechanism to resolve disputes, and implementing information technology in the courtroom. One of the results of these reforms is that the backlog of cases has been eliminated and the judicial system has become dramatically more efficient. However, an increased efficiency in judicial administration cannot be justified if it is attained at the expense of restricting access to justice. This Comment reviews the judicial reforms in …
Law And Discretion In The Contemporary Chinese Courts, Margaret Y.K. Woo
Law And Discretion In The Contemporary Chinese Courts, Margaret Y.K. Woo
Washington International Law Journal
The last twenty years of Chinese legal reforms have been particularly interesting to scholars and activists alike. During this period, Chinese legal reforms have moved from purely substantive changes in economic laws to the realm of domestic structural reforms of the court system. Today, legal reformers are discussing the use of open trials, adversarial advocacy, and even judicial independence. This Article explores how far some of these reforms may go by considering the path of structural and procedural changes adopted by the Chinese courts in the past twenty years. It includes an analysis of the tension faced by all legal …
Juduicial Power & Illusion: The Republic Of China's Council Of Grand Justices And Constitutional Interpretation, F. Fraser Mendel
Juduicial Power & Illusion: The Republic Of China's Council Of Grand Justices And Constitutional Interpretation, F. Fraser Mendel
Washington International Law Journal
The Republic of China underwent a rapid political transformation from an authoritarian nation to a democratic state which required change at every level of the government. The ROC's Council of Grand Justices has contributed to this period of reform through a number of constitutional interpretations which have resulted in greater individual liberties and further restrictions on government actions. This has been accomplished even though the Council operates against substantive and procedural limitations on its powers. A review of these Council interpretations from the past decade reveals that the Council has made steady inroads towards fulfilling its role as the supreme …