Framing Workshop on the role of the Judiciary in Constitutional Transitions

On November 14-15, the International Institute for Democracy and Electoral Assistance (International IDEA) hosted a workshop on the theme of “The Judiciary and Constitutional Transitions” together with the International Development Law Organization (IDLO).

The workshop addressed three themes concerning the role of the? judiciary during and immediately after a democratic constitutional transition: how the constitution can transform the judiciary, the kinds of strategic behaviour the judiciary can engage in to establish its role and relationships under the new constitutional framework and finally the use of socio-economic rights to improve social justice. Professors Yashpal Ghai, Tom Ginsburg and David Landau delivered presentations on these three themes respectively.

Following the thematic presentations, country experts presented a series of case studies from India, Indonesia, Kenya, Chile, Hungary, Tunisia, Egypt, Libya, South Sudan, Zimbabwe and Nepal. Refer to the menu to the left to access the access full programme, concept note, background papers and list of participants.

In terms of transformation of the judiciary, Professor Ghai examined how the Constitution can change the structure, independence, jurisdiction, composition and attitudes of the judiciary. He highlighted the importance of changing attitudes, by directing the judiciary – through the constitutional text – to interpret the Constitution in a progressive manner. While each of the country presentations covered these issues to various extents, much of the discussion focused around the issue of integrity, including through a presentation of the vetting process in Kenya from Jan Van Zyl Smit. Questions were raised regarding how to balance the need to improve judicial integrity with respect for judicial independence and avoidance of politically-motivated purges.

With regards to strategic behaviour, Professor Ginsburg first set the context – legislatures have never been less popular and judges have more public support and confidence than ever. He stressed the point that Courts famously have neither sword nor purse, so must look for allies to help build their reputation and support their position. The seeking of the public as an ally for the Courts became a recurring theme through the workshop – with a general agreement that such an alliance was necessary for a post-transition judiciary to establish itself, but some unease over the idea of populist judges and how that might affect their decision making.

Coming to the issue of socio-economic rights, Professor Landau called for a focus on remedies rather than the rights themselves if enforcement of socio-economic rights is going to have positive effects for the poor – specifically drawing a line between the individual adjudication where relief is given to the litigant, and structural injunctions where direction is given for a change in government practice which might thus affect a broader number of beneficiaries, with an increased likelihood of relief reaching the poor. While not calling for structural injunctions as a broad-based solution in making socio-economic rights work for the poor, Landau urged more creativity among new or reformed judiciaries in finding remedies in socio-economic litigation. He also called for broader understanding of how different jurisdictions have dealt with common challenges in this area – such as separation of powers issues and capacity of the courts to enforce such rights.

International IDEA will release a full report early in 2015 which will feed into the Institute’s research and development of other knowledge resources in this crucial area of constitution building.

Workshop papers