PANEL SESSIONS I MONDAY JUNE 25 2018 4.45 PM – 6.15 PM

Room: CYTT 3.20

  • CONSTITUTIONALIZING TRANSITIONAL JUSTICE: HOW CONSTITUTIONS AND COURTS DEAL WITH THE PAST ATROCITY
    This panel brings scholars and practitioners from different countries (Hungary, Poland, Kazakhstan, and Taiwan ) and disciplines (law and political science) together to analyze the indispensable role of constitutions and constitutional courts in the process of overcoming political injustice of the past. Issues raised in the panel include: is a new constitution inevitable for the successful practice of transitional justice after democratization, revolution or civil war? What could or should a constitutional court do in response to political injustice from the past? Would it be too risky for the court to test the water with a new constitution immediately after a transition for the swift rectification of past wrongdoings?As scholars who so intensely debate the promises made by the constitution, we also try to inquire: would the process of transitional justice affect the constitutional culture, political dynamics among parties or public trust in the constitution and constitutional courts?
  • Why Constitution Matters with Transitional Justice: Comparison of Taiwan and South Korea
    The paths of constitutional reform and democratization in Taiwan and South Korea paralleled as well as diverged from each other. The difference has a huge impact upon their policies and legal strategy toward transitional justice. Constitution in post-authoritarian Taiwan failed to form a new political identity against past atrocity. Even though the Constitutional Court has made effort to instill theoretical bases to redress unfair criminal treatment of political activists, these rulings simply reaffirm the untouchable issue of political legitimacy enshrined in the 1947 Constitution of the Republic of China. The KMT simply passed legislation to award monetary compensation for political victims under martial law. However, Korea has actively investigated at least two political incidents. The case of Taiwan illustrates an outdated constitution not only cannot provide a sound foundation for transitional justice but also fails to facilitate political communication within a growing democracy.
  • Between Blaming and Naming: Constitutions and Transitional Justice in Post-Soviet States
    The quarter-century of politics in twelve non-Baltic post-Soviet states shows the approaches of transitional justice from blaming to naming towards the abuses of human rights committed by Soviet and post-Soviet regimes. All post-Soviet regimes officially blame Stalinist regime in general while very few – Georgia and Ukraine – actually blame post-Stalinist regime, name concrete perpetrators of the abuses and collaborators and attempt lustration. Most post-Soviet states keep most of the secret police archives secret yet they permit rehabilitation, compensation and memorialization of victims of Stalin‘s purges without naming concrete perpetrators of purges and officials in charge of expropriation – the pattern inherited from the last years of the USSR. Most of these states glorify the memory of the victims and encourage repatriation of ancestors of the victims, like in Kazakhstan, without announcing the names of officials and collaborators with secret police responsible for their fleeing.
  • Facing the Shadows of the Past During Transitions: The Role of the Constitution in the Case of Hungary
    One of the greatest challenges facing Hungary is coping with the grievances left by the authoritarian and totalitarian regimes in the 20th century. The question of how to settle the pro-Nazi and communist pasts of the country was first raised during the democratic transition in 1989. This paper discusses how the democratic 1989 constitution of Hungary and its judicial interpretation given by the Constitutional Court dealt with the problem of transitional justice, and how this approach influenced reconciliation and democratic consolidation. The paper introduces those legal solutions. Retroactive justice, responses to state security measures and the regulation of compensation for wrongdoings in the past are also examined. Recently, the question of settling the past has been brought up again as part of the country‘s shift toward authoritarian rule. Therefore, the unsettled past has continued to be the bedrock of political fights in the present. It also discusses the 2011 constitution.
  • “Chief Justices of Constitutional Courts in Democratic Transition: Roles and Models”
    The disagreement on the proper role of judges confronting upon issues of political morality goes back to the renowned debate between Herbert Hart and Ronald Dworkin. The generations of constitutional courts, led by ambitious chief justices in many countries, are considered the most important institutional guarantors of transitional justice and constitutionalism on account of their decisions on political morality, human rights, principles of rule of law and separation of powers. However, the constitutional adjudication is Janus-faced because the activity of the courts may contribute to the re-emergence of authoritarianism. The paper offers different case studies from Russia, Hungary and Moldova to demonstrate how chief justices deal with problems left by former authoritarian parties, during the period of emerging new authoritarianism.