Expert talk

Forum on the Concept of Constitutional Courts

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Details

More than 100 lawyers from the academe, law offices and government attended the „Forum on the Concept of a Constitutional Court” upon the invitation of LAWASIA Philippines and the Konrad-Adenauer-Stiftung (KAS). Meanwhile, 50 countries have implemented a constitutional court; the first of its kind was established in Germany in 1949.

This is one reason why LAWASIA Philippines asked the Konrad-Adenauer-Stiftung to invite a renowned German expert to discuss this concept in the Philippines. Other resource persons came from South Korea and Thailand.

The proceedings of the conference will be available soon on this webpage: www.kas.ph/philippinen.

Summary of proceedings

The forum formally opened with the introductory remarks of Mr. Klaus Preschle, Country Representative of the Konrad Adenauer Stiftung. He welcomed and thanked the forum’s resource persons, speakers and guests. He gave a brief history of the German Constitutional Court and the role Dr. Adenauer played in it. He also informed the forum’s body of the rule of law program of KAS in Asia, including its goals and mission. He stressed the importance of a strong and working judiciary in a democratic society. His hope is for this “Forum on the Concept of a Constitutional Court” to contribute to the greater efforts toward helping strengthen and reform judicial systems.

Ambassador Raul Goco of LawAsia also welcomed the speakers, guests and participants. He talked about the efforts of LawAsia and how it got to partner with the Konrad Adenauer Stiftung for this particular event. He encouraged the participants to make this forum an opportunity for learning, sharing and asking questions.

The morning’s main guest speaker was Professor Dr. Rudolf Dolzer from the University of Bonn; he was introduced as an expert on Constitutional Court. Dr. Dolzer began his talk with the history of the German Federal Republic and the German Constitution, and how the Constitutional Court has evolved. Then he talked lengthily about the features of the German constitutional tribunal, focusing too on the powers allocated to such court. He shared the German Constitutional Court’s experiences, including the challenges it faced and continues to address. He stressed though that his role was not to give advice or solutions, because he came “not as a politician or missionary” but as a comparative professor. He also taught in the Yale University College of Law and as such had the opportunity to comparatively study the German Constitutional Court and the United States judiciary, as well as the other models in Europe.

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HIGHLIGHTS OF PROF. DR. DOLZER’S PRESENTATION:

Prof. Dr. Dr. Rudolf Dolzer said that the Constitutional Court is the major and dominant innovation in the past 50 years in Europe. The Constitutional Court is essentially characterized by three elements:

First, the Constitutional Court is considered to be the organ and guardian of the constitutional system;

Second it has the monopoly in relation to judicial review which the other courts do not share; and

Third is that the decision of the Constitutional Court is binding on all organs of the state and all citizens.

At this point it is Germany (since 1949), Italy, France (since 1958), Spain and Portugal that have Constitutional Courts. Poland and the Czech Republic introduced the Constitutional Court after 1991. The Constitutional Court is the dominant mode of approaching constitutional issues in continental Europe. The Netherlands, Sweden, Denmark have not introduced the Constitutional Court. Austria used to have a Constitutional Court and then abandoned it and then came back to it.

He also spoke on the reasons for having Constitutional Court:

In Europe, in the past 50 or even 100 years there is a tendency to view the constitution as a legal document. The court is seen as arbiter of constitutional matters-as a neutral power. The Constitutional Court is considered the least dangerous branch.

Constitutional Courts are no contradiction to parliamentary democracy. The question is often raised that ultimately the power lies with the people, and therefore ultimately the power lies in the legislature elected by the people. That means the ultimate word about major issues, including constitutional issues, must lie with the parliament. Germany decided that this is not an argument against such a court.

The German Constitutional Court is part of the judiciary.

The most difficult part of any Constitutional Court is the process of nominating judges. Germany found a fairly pragmatic solution; judges are not nominated in the same manner as in the highest civil or administrative court. The constitutional judge in a Constitutional Court must have different authority, different legitimacy, different standing and rank, and different perspectives of the public and of the constitution. Half of the judges in the Constitutional Court are appointed by parliament, by the lower house, the other behalf by the upper house, because Germany has a federal system.

The German Constitutional Court has the broadest power among all the Constitutional Courts in the world. One of the expressions of this is that the organs of the state themselves can bring cases. First of all, every organ of the state can ask for judicial review; every organ state can say that law is unconstitutional. Moreover the organs of the state can bring a case under the German constitution to the Constitutional Court against other organs of the state.

On approaches to interpretation: Prof Dr. Dolzer believes that it is not possible to speak of any kind of defined methodology to interpret the constitution. There is a mixture of approaches to interpretation: legal, historical, liberal contexts. The outcome in practice is a mixture. It is the exercise of interpreting a legal living document that is the basis of society; that is the basis of legal framework and has to be interpreted by someone from the least dangerous branch. It is therefore appropriate that he Constitutional Court to review the constitution and interpret it. The constitution is some kind of higher law with some elements of natural law. The task of the Constitutional Court is not just to interpret the individual clauses of the constitution, but also to interpret the basic philosophy of constitution.

On the question of whether the existence of the Constitutional Court unnecessarily reduce the authority of the courts, legislative and executive branches, Prof. Dr. Dolzer stated that the answers must be given by each country on the basis of its traditions, experience, priorities and constitution.

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After Dr. Dolzer’s lecture, Dean Amado Valdez of the UE College of Law and Dr. Gupit gave their reactions to Dr. Dolzer’s talk. Both said that the Constitutional Court is still a new concept in the Philippines, but they extolled the advantages it has brought to other countries, which have established it. Dean Valdez talked about how the current political situation in the Philippines is opening up an opportunity for change; he admitted that there were several questions that needed to be addressed before change could happen, but still stressed that everybody should be open to initiating change including in the judiciary. Dr. Gupit talked about how the Philippine judiciary’s umbilical cord is attached to the American system, and that given these historical roots of the Philippine judiciary, it might be difficult to change the system. However, like Dean Valdez, he also said that there was nothing wrong in dreaming for such change and probably seeing it realized too.

An open forum followed, during which the questions circled around the issues of the nomination process, the decision process within the Constitutional Court, the relationship of the Constitutional Court to the legislative and executive branches, and some more features and experiences of the German Constitutional Court that may help Filipino lawyers understand how the system works.

In the first session in the afternoon, guest speakers from Korea, Atty. Kim and from Thailand, Professor Prokati, spoke about their countries’ experiences with the Constitutional Court.

Atty. Kim informed the participants that this year is the Korean Constitutional Court’s 20th anniversary. He talked about the history of the Korean constitution and with it how the Constitutional Court came about; he said there was a transition body, called the constitutional committee bestowed with some limited powers and which performed limited activities, which was put in place before the Constitutional Court. He talked about the competencies or powers of this court and how it is helping address constitutional and political issues in Korea. The Constitutional Court of Korea came about as a response to the need to restore independence and trust to the judiciary. On the other hand, the Constitutional Court of Thailand is now suffering from this lack of trust by the public and lack of independence from the political branches of government. This was the focus of Professor Prokati’s talk as he related the political turmoil currently being confronted by the Thai government and people; it was not too long ago he said when Thailand also faced the same crisis under the leadership of its previous leader. The professor also discussed the history of the Constitutional Court, its competencies and the issues that it decided upon in the past. Today the Thai Constitutional Court has in its hands once again a critical issue, that of deciding on the political fate of Thai’s Prime Minister.

Dean Andres Bautista of the Institute of Law of the FEU and Atty Adel Tamano served as reactors to the talks of Atty Kim and Professor Prokati. Dean Bautista noted the advantages and disadvantages brought about by the Constitutional Courts in the Korean and Thai contexts, and he compared it with the possible advantages and disadvantages to the Philippines if such system will be adopted here. He also mentioned that the Philippine judiciary is patterned after the American system and that this may be a critical factor that needs to be addressed. Atty. Tamano touched on the politicization of the court, particularly in the Philippine setting. He also talked about the political implications when changes are made now to allow for the establishment of a Constitutional Court, and that before 2010 may not be the right time for it.

In the open forum, the questions focused too on the politicization of the Philippine court, as well as those of Korea’s and Thailand’s; and how could such situation be avoided or could it be avoided?

The final session in the afternoon involved observations from Filipino law practitioners, including former justices. Dean Marvic Leonen of the UP College of Law talked about the rule of law and the judiciary in the Philippines, including its history which has very close ties to the American judicial system. But he emphasized on how currently the law and judicial system functions in the life of the ordinary people and different sectors of society, and how these two serve them. He noted the “multi-ethnic, multi-dimensional” characteristic of Philippine society, which he said is a critical element in deciding judicial reform or change. He also said it may not be necessary to create a Constitutional Court, because as it is now Philippine lawyers are able to transform cases into constitutional issues.

Justice Manuel Lazaro was not also very upbeat that the Constitutional Court would be realized in the Philippines, but he is not closed to the possibility of it being initiated by the younger generation. He cited as reason for his view the tie historical ties of the Philippine judiciary to that of the American. He also said there should be a revision or amendment of the constitution in order to set up in the Philippines a Constitutional Court.

The third speaker from the Philippines, Dr. Aguila Grapilon, focused on the power to conduct judicial review of the Constitutional Court. He stressed that this power is already being exercised successfully by the Philippine Supreme Court, citing several cases and the long jurisprudence experience in the Philippines.

Former Supreme Court Justice Justo Torres was the last speaker from the Philippines and of the forum. Justice Torres ‘disabused the minds” of those present who have heard all day that there is no Constitutional Court in the Philippines. He said there is and this is in fact according to the Philippine Constitution. He recounted the history of the Philippine Constitution’s evolution, stressing that these were very good and well drafted constitutions that could compare with any constitution in the world. He said that an advantage of a Constitutional Court is that it will help de-clog the Supreme Court, which has always been swamped with thousands of cases, rendering it impossible for the high court to deliver decisions speedily and with more quality.

Questions during the last of the day’s open forum focused on how the Constitutional Court could be made politically acceptable in the Philippines and how the problems confronting the Philippine judiciary can be addressed.

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Venue

Sofitel Philippine Plaza

Speakers

  • Prof. Dr. Rudolf Dolzer (Germany)Atty. Kim Ik-Tae (Korea)Prof. Kitisak Prokati (Thailand)
    Contact

    Klaus Preschle

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