A Tale of Two Courts: The Judicialization of Electoral Politics in Asia

Abstract

This article examines the judicialization of electoral politics in Asia, an important but understudied trend, as demonstrated in Thailand and Indonesia. Though the constitutional courts in both have similar histories and institutional arrangements, their electoral interventions vary radically. We argue that the diffusion or concentration of power among post‐transition elites determines whether the effect of judicial activism will be to shore up or undermine electoral governance. Where power is diffused, as in Indonesia, political actors, less able to impose their own will on the judiciary, seem to prefer a credible referee, which fosters electoral competition. Where power is concentrated, as in Thailand, elites have both the motive and the means to turn judicial activism to antidemocratic ends. By focusing on the ends, rather than the means, of judicial activism, this account goes beyond personalities and institutional design to enhance understanding of the role of the courts in transitional democracies.

Contesting Tobacco-Control Policy in Indonesia

“…80 Mietzner 2013. 81 Mietzner 2010;Dressel and Mietzner 2012. The Constitutional Court's reformist credentials were tarnished by revelations in 2013 that Akil Mochtar, then chair of the court, had taken bribes in relation to a series of regional election disputes.…”

Governance, Courts and Politics in Asia

“…Elite dynamics not only critically determine whether courts will be propelled into the political fray but, as the cases indicate, they are also critical in shaping behaviour when courts are confronted with mega-political issues. For instance, in Korea and Indonesia, elite configurations have been diffused, allowing for societal acceptance of the courts as final arbiters; there the courts have seized on the political space to not only engage in areas of governance, but also to actively advance the good governance agenda (Dressel and Mietzner 2012). On the other hand, where elites have managed to align the courts to their purposes, as in Thailand, or shown little division amongst each other, as in Singapore, courts are unlikely to even look for room to intervene; nor are they able to actively shape a good governance agenda that might run against engrained elite interests.…”

The Role of the Constitutional Tribunal in Myanmar’s Reform Process

“…109 In light of these experiences, a number of commentators have argued that the case of the Indonesian Constitutional Court "has demonstrated that judicial intervention related to elections can in fact promote democratic consolidation." 110 Indeed, in deciding electoral disputes, the Indonesian Constitutional Court had become "activist" in a number of ways. The court began, from November 2008 onwards, to review the quality of the election process itself (such as the nomination of candidates, the abuse of power by incumbent candidates, etc.).…”

“…With this decision, the Constitutional Court had become a "positive legislator", thereby moving beyond its role as a "negative legislator" as envisaged in the Constitution, and thus formally "overstepping the boundaries of its authority". 112 What is remarkable in the case of the Indonesian Constitutional Court is that although the court moved from being a mere "negative legislator" to being a "positive legislator", and although it went beyond its authority as circumscribed by the Constitution, it has not suffered the negative consequences that other constitutional courts in emerging democracies have faced. 113 Indeed, although the court's "activist" approach has been criticised by legislators, who are of the view that the court has unduly overstepped the boundaries of its authority and entered the area of law-making, the Constitutional Court is, overall, a highly respected and popular institution in Indonesia.…”

“…113 Indeed, although the court's "activist" approach has been criticised by legislators, who are of the view that the court has unduly overstepped the boundaries of its authority and entered the area of law-making, the Constitutional Court is, overall, a highly respected and popular institution in Indonesia. 114 One plausible explanation for this remarkable stability of the Indonesian Constitutional Court in its early years (despite its "activist" approach) is that it firmly established its legitimacy through support from the public. Indeed, the court's numerous activities to engage the population and win public support, its comparatively broad rules of standing allowing individual citizens and representatives of traditional communities to petition the court, as well as the considerable number of cases brought before it, all contributed to bolstering the legitimacy of the court in the eyes of the public, as well as its reputation for independence and autonomy.…”