Democracies and Courts in Asia

Abstract

This paper explores the role that Asian courts play in the democratization of their political systems and illuminates how law and politics interact in the judicial construction of constitutional doctrines. In dominantparty democracies (e.g. Singapore, Malaysia, and Hong Kong), courts can only take a limited range of actions adverse to the government’s interests before the latter retaliates by deploying constitutional or unconstitutional means to discipline the courts. While their courts are unable to successfully challenge the core interests of their governments, they must pursue 'dialogic' pathways to constrain the institutional pathologies of authoritarian politics. On the other hand, in dynamic democracies (e.g. India, South Korea, and Taiwan), where political power regularly rotates between competing political parties, courts can more successfully innovate and make systemic changes to the electoral system. Finally, in fragile democracies (e.g. Thailand, Pakistan, and Bangladesh) where the military is not under the firm control of the civilian government and the country regularly oscillates between martial law and civilian rule, their courts – unlike those in dominant-party democracies – tend to consistently overreach. Such high-octane judicial review by partisan or imprudent judges can easily facilitate or precipitate a hostile takeover by the armed forces, and lead to the demise of the rule of law.