“Sanctioning Constitutional Defiance: A Comparative Human Rights Perspective from Germany, the United States, South Africa, Italy, and South Korea” -By Fransiscus Nanga Roka

In constitutional democracies, the phrase “final and binding” is supposed to mean exactly that. Yet around the world, we are witnessing a dangerous pattern: lawmakers ignore constitutional court rulings and there are no consequences. Under such circumstances, a constitution does not just weaken; it becomes optional. What is at the heart of this conflict is a simple yet discomfiting truth: constitutional courts do not enforce themselves. Their authority depends not only upon legal theory, but also political submission. And when legislative bodies shunt decisions made by judges without penalty, they expose a structural flaw in modern constitutionalism, one that threatens both the rule of law and human rights. Experience from other comparative case examples shows that mature democracies do not leave this problem unsolved.

In the Federal Republic of Germany, the Federal Constitutional Court’s authority is not merely a symbolic one; it is a working system. Its judgements bind all state organs, and deliberate non compliance with them leads to institutional as well legal consequences such as constitutional complaints and political accountability mechanisms. The system functions not because defiance is impossible, but rather because it is expensive. A more fragile but illuminating model is offered by the United States. Although the Supreme Court of the United States lacks direct enforcement power, its verdicts are reinforced by a culture of constitutional supremacy bulwarked by congressional supervision, judicial review and occasionally, civil contempt trial procedures. Yet even in the U.S., recent tension alerts us to how quickly adherence can evaporate if political actors believe defiance will not carry immediate costs. In South Africa, the Constitutional Court of South Africa has taken a more assertive role. It has not hesitated to declare executive and legislative action unconstitutional, and crucially has imposed enforceable remedial orders. In landmark cases, even high ranking officials have had direct legal consequences for refusing court rulings. Here constitutional authority is enforced not just by theory but also through penalties.

But the Italian example suggests that a new combination might also be tried. In Italy, the combination of systematic pressure applied through judicial annulment, and a certain flexibility on the part of political actors willing to accept that which cannot be changed has kept law in line with constitutional requirements. If the enactment violates rulings of the Constitutional Court, those laws will be struck down. Whenever a Legislative ` goform’ into negative territory receives repeated defiance, institutional backlashes invariably follow; political crises ensue. The warning is clear: to persist in disregarding constitutional committments itself casts doubt on government.

In South Korea, perhaps the most vigorous enforcement model is provided by the Constitutional Court. On the strength of its decisions, national leaders at the summit have been summarily dismissd from office, and laws invalidated. It is not a matter of procedure that the cost of constitutional defiance to carry is now seen as a real expense.

What can be said of these places is that, rega rdless how it is implemented, constitutional suzerainty does not, on its own, just appear out of nowhere. It has to be safeguarded through any number of means making constitutional disobedience difficut.

By contrast, in countries where there are no sanctions for ignoring constitutional court decisions, the consequences are severe. First, legal certainty dissolves. If such protections can be politically ignored, how can citizens rely on constitutional guarantees? Second, human rights themselves are in danger. Because many times the only place constitutiona courts can turn up a e violated right is as the very last line of defense for an endangered human term ne. T he disregard of their conclusions mens that those guarantees instead become something to be wished for rather than implemented. Third, democratic legitimacy erodes. A Parliament where elected officials treat the constitution selectively is not a democratic system respecting human rights. It is a tyranny of the majority that wears a constitutional crown.

The fact that we have yet to handle this kind of constitutional defiance represents a deficiency in normative terms.

The solution, Advanced in equal measure and equally difficult to accept, will be found in an approach in which constitutional protection becomes tasteless unless followed up with ways of actually allaving those who do wrong their duty. These could include:

• Legal accusations against those legislators who deliberately explore laws despite being told by law courts that they are unconstitutional;
• Combined with either pecuhary or procedural fines, the automatic voiding of Ald Law That violates constitution.
• Trial powers, including binding enforcement decisions and, where appropriate, contempt-like processions;
• Transparency and responsible arrangement on the part of the public that makes lawbreaking hard to disregard or ignore. Opponents will say that sanctioning legislators is judicial overreach. But the only really dangerous thing is if their interpretation and execution go altogether unchecked. Without enforcement like that carried out by judicial courts, a constitutional court does not control power at all–it just gives advice to those who may or might not follow through.

And if a constitution can be disregarded without consequence then it is no more than a powder puff or worse still.

The worldwide message is loud and clear. From Berlin to Seoul, it is due to the consequences of defiance that constitutional democracies survive, not simply because none ever occurs. So where such consequences are lacking, the fabric of constitutional existence starts to come unravelled.If the international community really wants to protect either the rule of law or human rights then it must address this directly. Good intentions alone on its part will not do. The law depends for its existence on being enforced. Because when legislators are allowed to contravene without having their actions legally sanctioned, it is no longer a question of whether the rule of law exists.

That is perhaps more doubtful.

Fransiscus Nanga Roka

Faculty of Law University 17 August 1945 Surabaya Indonesia