The Concept of a "Shadow Court"
Establishing Asia Court of Human Right is not a brand-new, but difficult idea. In fact, South Korea and Indonesia ever raised this issue for discussion. There was no conclusion, however. Compared with the difficulty of drafting a real, official Asian Court of Human Right, it might be much easier to establish a private, unofficial shadow one. Furthermore, based on the shadow one’s working experience, Asian societies may find some consensus and a practicable way to promote and realize a real one.
A Successful "Shadow Court" experiment in Taiwan
The concept of creating a “shadow human right court” is based on Taiwan’s experience of establishing a successful shadow court of Taiwan Constitutional Court (TCC)—Constitutional Court Simulation (CCS) which had addressed on same-sex marriage ruling, the constitutionality of death penalty and transitional justice issues separately from 2014 to 2016. The donor-supported project brought together academics, rights advocates, judges, and lawyers to further judicial and legal reform in Taiwan.
What distinguishes CCS from conventional constitutional courts is that CCS was characterized by openness and transparency. Examples abound. Just to name a few. The selection of Justices of CCS and cases were never shrouded in secrecy. CCS allowed the general public to see preliminary hearings and judiciary proceedings as they happened in real time. Clients could appear before CCS to make statements; expert witnesses, publicly express opinions; lawyers, cross-examine witnesses. In addition to live broadcasts, CCS proceedings were videotaped for later viewing. They were easily accessible on Youtube. All transcripts of statements and court rulings were open and accessible to the general public. It is no exaggeration to state that proceedings are subject to the full glare of public scrutiny.
In stark contrast to the TCC that had previously invoked the political question doctrine to refuse to adjudicate cases, CCS did not shun crucial issues. Seen from the perspective of due process and democracy, CCS was able to set higher standards than the TCC in terms of the selection of Justices and cases, the training of court clerks, the exercise of judicial discretion, and the maintenance of the independence and impartiality of justices and prosecutors, the right of public access to documents of court files. As a result, CCS substantially increased the public’s confidence in the administration of justice.
In the past practices during 2014-2016, CCS had heard not only local opinions of local experts, but also international experiences and foreign perspectives from former Justices Albie Sachs and Richard Goldstone of the South African Constitutional Court, Justice Marek Zubit of the Constitutional Tribunal of Poland, and 4 acclaimed scholars from the United States, the United Kingdom, Australia, and Chili. The live testimony of these domestic and international experts brought international conversations which had given all the participants a second thought on the given issues. After CCS made its constitutionality judgement of same-sex ruling in 2014, TCC, which had held oral argument only nine times since 1947, had accept a case regarding same sex marriage ruling which was filed by the same lawyer and NGOs who filed a case to CCS, and held its 10th oral arguments in May. 2017. And CCS had sent its judgement on same-sex marriage ruling as amucus cariae to its peer before TCC delivered its judgement on May. 24, 2017.
Leap of Faith--Asian Human Rights Court Simulation
Based on the successful experience of CCS, the project of Asian Human Right Simulation is going to create a transnational human rights oversight system. It could then serve as a bridge linking up rights defenders, civil society groups, and the government in Asia. And We hope the Asia Court Simulation of Human Right’s working experience could lead Asian civil society to create a official human right court, be a Asia-wide right advocacy, and play as a real shadow court after a official human right court in Asia been established.