New Courts in Asia

Harding, Andrew; Nicholson, Pip

doi:10.4324/9780203862841

Cited by 49 publications

(8 citation statements)

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“…Here, we seek to present new evidence and comparative insights from the involvement of the constitutional courts in Thailand and Indonesia in electoral politics. Judicialization of politics—described by Hirschl (2006, 721) as “the ever‐accelerating reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies”—has been well documented for the United States, Europe, and Latin America (see Feeley and Rubin 1998; Guarnieri and Pederzoli 2002; Sieder, Schjolden, and Angell 2005b; Stone Sweet 2000; Tate and Vallinder 1995) but less so for Asia in general, and hardly at all for Southeast Asia (for exceptions, see Ginsburg 2003; Ginsburg and Chen 2009; Harding and Leyland 2009; Harding and Nicholson 2010). Tate (1994, 188) once proclaimed that “a majority of Southeast Asian countries are unlikely candidates for the judicialization of politics,” because their regimes were neither democratic nor constitutional.…”

Section: Introductionmentioning

confidence: 99%

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

Dressel¹,

Mietzner²

2012

Governance

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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.

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Section: Introductionmentioning

confidence: 99%

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

Dressel¹,

Mietzner²

2012

Governance

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“…In particular, individuals are now often entitled to their "day in court". Yet there is at best minimal evidence that constitutional law and values are penetrating administrative practice in Asia, nor is there much indication that public administration and judiciaries will enter into a new partnership of the type known from the US context (Dressel, 2012;Ginsburg & Chen, 2009;Harding & Nicholson, 2010;Rosenbloom, 1987). Part of the equation may be that the judiciary has been asserting itself unevenly in terms of engagement and issue areas, and that although constitutional law has in places enabled growing judicialisation, there are few signs that public administration is becoming more deeply constitutionalised, at least in Western terms.…”

Section: Conclusion and Looking Aheadmentioning

confidence: 98%

Public administration and the rule of law in Asia: breadth without depth?

Dressel

2014

Asia Pacific Journal of Public Administration

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Public administration in Asia has undergone considerable transformation over the last two decades, yet commitment to the rule of law has remained problematic. Presenting a basic typology of state types based on the breadth and depth of how public administration is situated within the rule of law, this article argues that while in recent years states in Asia have made great strides towards fuller legalisation and judicialisation of the public administration space as part of a broader process of institutional layering, they have largely failed to deepen its enforcement in terms of universality and impartiality. Drawing on East Asian Barometer data, the analysis shows how, because citizens' attitudes have given little support to the rule of law framework in public administration, elites have had little incentive to advocate for reform. Taking into account the broader organisation of state power in Asia with its ideological emphasis on developmental outcomes, substantial empirical and theoretical questions are raised about the trajectory of public administration in the region.

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“…In all three "Category II Cases", new constitutions were drafted or existing constitutions substantially amended to mark the transition from authoritarianism or hybrid regime to democracy, with strenuous efforts in constitutional engineering for the purpose of constructing a more perfect democratic political system with strong constitutional guarantees of citizens' rights and high aspirations towards social justice, elaborate mechanisms of separation of powers and checks and balances, and a powerful judicial machinery to safeguard the integrity and supremacy of the constitution. Thus the empowerment of the Supreme Court of the Philippines by the 1987 Constitution (Ciencia 2012) (Harding and Leyland 2008;Harding and Nicholson 2010). This in turn gave rise to the phenomenon of the judicialization of politics , and, in the cases of the Philippines and Thailand, even the politicization of the judiciary, as will be discussed below.…”

Section: Category II Cases: the Philippines Thailand And Indonesiamentioning

confidence: 99%

Constitutions, Constitutional Practice and Constitutionalism in East Asia

Chen

2014

SSRN Journal

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The constitutions and constitutional practice of states in East and Southeast Asia (hereafter called "East Asia") provide worthwhile case studies for scholars of comparative constitutional law, constitutional theory and politics. This chapter seeks to provide a conceptual framework for such comparative studies, and discusses some key components of the existing literature on this subject. It is hoped that the chapter can serve as a point of departure or guide for further research into the topic. Given space limitations, the treatment in this chapter is necessarily selective and incomplete, in terms of both the countries and the literature included in the discussion. East Asia is a region characterized by great ethnic, cultural, religious and linguistic diversities, different levels of economic development, and large variations in the types of political regimes that have existed or are now prevalent. This is highly relevant to the study of Asian constitutionalism, as constitutional law is bound up with history and politics. All states in East Asia have adopted written constitutions in modern times, but the nature, purposes and functions of these constitutions vary according to the nature and character of the political regimes in which they exist. This chapter will therefore begin with a discussion of the types of regimes that have existed in modern East Asia, before proceeding to investigate the relationship between constitutions and regime types.

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New Courts in Asia

Cited by 49 publications

References 0 publications

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

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

Public administration and the rule of law in Asia: breadth without depth?

Constitutions, Constitutional Practice and Constitutionalism in East Asia

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