Leadership, law, and legitimacy: reflections on the changing nature of judicial politics in Asia
Leadership, Law, and legitimacy
Reflections on the changing nature of judicial politics in Asia
Constitutional courts and supreme courts of final appellate jurisdiction are unique institutions. As the principal courts in the legal hierarchy of the state, they represent the apex of the law, the fundamental institution that addresses and resolves the most important legal disputes, and thus the body entrusted with responsibility for supervising the legal contours of the regime. But to the extent that they exercise judicial review, overturning executive and legislative initiatives for inconsistency with the constitution, they are also inevitably political institutions whose decisions affect the character of the regime.
This twofold aspect of the highest courts, and the extent to which their judgments favour one over the other, has been a concern of political and legal scholars.1 The phrase ‘judicialisation of politics’ seeks to capture their increasingly political role and therefore the potentially undemocratic exercise of their authority, while ‘politicisation of the judiciary’ suggests political usurpation of the legal authority of the court in ways that undermine its expertise, independence, and judgment. As these phrases suggest, students of judicial politics are fundamentally concerned with questions about democratic and liberal constitutionalism and the extent to which the judiciary may be said to strengthen or limit democratic accountability. Consequently, the study of judicial politics is inevit ably an examination of its legitimacy, specifically within the context of the unique constitutionalism of each state and more generally within the theoretical conceptions that comprehend and frame the judicial role.
Because of the historical origins of liberal and democratic constitutionalism and the theoretical reflections that have shaped constitutional changes, it is perhaps inevitable that scholarship has focused predominantly on Western jurisprudence and constitutionalism. The farreaching influence of the American constitution as the first modern experiment in selfgovernment has obviously shaped much of the research on judicial politics.2 Through their colonial influences, Westminster ‘responsible’ government and European conceptions of the rule of law have also had an important role in directing this scholarship. Consequently, when the focus has shifted to Asia, these conceptions of constitutionalism (and implicitly judicial politics) have informed models for constitutional reform and thus have become the basis for comparative evaluations by students seeking to understand judicial politics in the region (see, for example, Ginsberg 2003; Ginsberg and Moustafa 2008; and Peerenboom 2004; Ginsburg and Chen 2009; Harding and Nicholson 2010). The question of whether courts are usurping powers that properly belong to the political domain (‘judicial activism’), which is the prevailing concern of Western students of judicial politics, is therefore inevitably asked as well about the judiciary in Asia.
The usefulness of this question is evident from the complex and subtle assessments of judicial politics revealed in the essays in this book. In this survey of judicial politics in 10 Asian countries, students of Western judicial politics will see many familiar aspects of constitutionalism, which confirm the importance, perhaps even the primacy, of the legal and constitutional over the cultural, historical, ethnic, and religious. Yet these chapters are instructive not only because they confirm what we already know; they also reveal crucial differences that warrant closer scrutiny. The examination of judicial politics in Asia in this book therefore yields significant insights not only into the nature of judicial politics— indeed politics generally—in each country analysed; these insights allow us to revisit questions and concerns that have always been present in the study of judicial politics and constitutionalism but have perhaps been overshadowed by the focus on judicial activism.
In the concluding chapter to this book I draw upon the preceding essays to explore three aspects of judicial politics that warrant closer attention from students of judicial politics and comparative constitutionalism. The first aspect concerns the importance of judges taking leadership in shaping judicial politics. I do not intend to revisit the perennial—and not always helpful—‘structure vs. agency’ problem that concerns certain subdisciplines of the social sciences. My point is more modest: the cases in this book reveal that in some instances who judges are and the unique decisions they take influence the shaping of both judicial institutions and constitutionalism.
The second theme I take up concerns the law itself. Students of judicial politics and constitutionalism have to some extent forgotten that the judiciary is a legal institution. It must therefore act, to a greater or lesser degree and depending on its constitutional and political mandate, like a legal institution. Our notion of an ‘activist’ court comes predominantly from our preconceptions about what is properly ‘legal’ and therefore what constitutes ‘improper’ activism when a judge or a court steps beyond the strictures we perceive to be legal.
My third theme, which in one sense comprehends the first two, is the question of legitimacy. The legitimacy of the judiciary is, I contend, fundamentally different from the legitimacy of other institutions, precisely because it has both legal and political dimensions. This creates a complex and acutely difficult environment for judges and the courts, who have to negotiate between contending demands of legitimacy: to the people, to the law or constitution, to elected representatives, whether legislative or executive. How well they negotiate this fine balance is the core theme of my analysis.
My focus on these three questions is not meant to suggest that they are the only three. No doubt other factors can be seen to be equally important—for example, the role in each country of religion, or traditions and history, in shaping judicial politics (on the importance of historical and ideational factors see Hilbink 2008 and McCann 2009). It is simply that, in examining the finegrained studies in this book, these three aspects of judicial politics stand out as worthy of further investigation, not only in Asia but also in the West.
It would seem obvious that who a judge is—the judge’s character—would be important for understanding the nature of judicial politics and therefore of evolving constitutionalism. Our general reluctance to ask this question is in part informed by our understanding of the law and justice as ‘blind’, that is, impartial and disinterested. Though it should not matter who the judge is, extensive research on attitudinal data and the biographies of judges reveals the continuing importance to the bench of individual character, discretion, and judgment (on attitudinal research see Pritchett 1948; Schubert 1965; and Segal and Speath 2002). Certainly, politicians are acutely conscience of the importance of who is appointed, often not for publicly salutary reasons; hence the use of institutional bodies such as judicial commissions to limit the influence of politicians in the judicial appointment process.
The importance of individual judges can be seen in appointments to the court in recently democratising states. Because they are likely to be drawn from those who advocated democracy and human rights, they are inevitably opposed to the previous authoritarian regime. For example, the Philippines Supreme Court as reconstituted in 1987 had an antiMarcos predisposition; at least five of its original members were reputed to be Marcos critics.3 When they have the power to appoint judges, politicians will naturally be tempted to choose those who favour their cause and are pliable, or at least neutral. Jarun Pukditanakul and other judges appointed to the Thai Constitutional Court in 2008 were known Thaksin critics. Musharraf’s appointment of the Dogar Court in 2007 to reconstitute the Pakistan Supreme Court was clearly aimed at political control over the judiciary. Similarly, in 2009 commentators began to speak of the Arroyo Court, because in her nine years in office Arroyo appointed 23 justices to The Philippines Supreme Court and before she left office appointed a subordinate and ally, Renato Corona, as Chief Justice.
It is in crucial junctures of political or legal evolution, such as constitutional foundings when courts have just been created, or in periods of major constitutional change, that judicial leadership assumes particular significance.4 There are notable examples in Asia of individual judges influencing judicial politics. The first Indonesian Chief Justice, Jimly Asshiddique, a respected professor of constitutional law at the University of Indonesia, proved crucial to the future legitimacy of the court. Not only did he bring the court significant political support, he also secured a sizeable budget and impressive new buildings; perhaps more importantly, he was instrumental in ensuring that the court’s decisions were better reasoned and more accessible. He was especially influential in establishing the court’s jurisprudential reasoning, in crafting Indonesia’s version of the rule of law (the negara hukum , or law state) as an underlying constitutional principle, and in upholding human rights and democratic principles.
Perhaps the most striking example of how the actions of individual judges can have major implications is Pakistan’s Ifthikar Muhammad Chaudhry, who was apparently considered reliable and unexceptional when Musharraf appointed him Chief Justice in 2005. Soon after his appointment, however, Chaudhry set up a Human Rights Office in the Supreme Court and instructed court employees to track media reports of crimes against women and children, abuses of justice, corruption, and abuses of power by civil servants and elected public officials. He then claimed jurisdiction to investigate such situations and issue judicial orders if warranted. Suspended from office in 2007, Chaudhry refused to resign and contested the decision, triggering demonstrations by lawyers and members of opposition political parties. His stance resulted in the Supreme Court declaring Musharraf’s actions to be illegal and lifting Chaudhry’s suspension.
Though Chaudhry demonstrates how the character of judges can make a major difference in judicial politics, usually its influence is mitigated by a range of institutional structures that attempt to limit the unpredictability of judicial discretion. One of the most significant, as noted, is the appointment process. The Japanese process of appointment and promotion, involving education in a Supreme Court Institute, appointments throughout the country, and 10 years of service before elevation to full judge shows the powerful potential of organisational selection in judicial appointments. The philosophical presuppositions of what a judge should do, derived from tradition, history, or in the case of Japan from Prussian scholars like Otto von Gierke and Georg Jellinek during the Meiji era, can be a powerful means of limiting judicial discretion. Similarly, the fact that Malaysian judges tend to be lawyers influenced by Westminster traditions explains their ‘legalistic’ jurisprudence. In the extreme case of Cambodia, the Khmer Rouge execution of lawyers, judges, and legal scholars meant that thereafter the quality of Cambodian judges ranged from the highly educated to the totally unschooled. By 2006 Cambodia had just 225 judges—17 per one million people—and fewer than 300 practising lawyers.5
Judges may arrogate to themselves the power of appointment, as did the Chief Justice of India and four senior judges in 1993 (who also mandated that criminal investigation of judges required judicial consent). But generally such procedures are subject to legislative or constitutional provisions. A wider appointment process may encourage more individual discretion. The Korean Constitutional Court (KCC) consists of nine justices appointed by the president, but the mixed appointment system means that of the nine, three are selected by the National Assembly and three are nominated by the Chief Justice of the Supreme Court, resulting in a more diverse bench. Combined with an increasingly large, active, and powerful Korean bar, it would seem that Korean judges might exercise greater discretion. But their short sixyear terms may make them more sensitive to the opinions of those who appoint them. The Thai attempt to combine career and noncareer judges on the bench may have provided room for greater independence. But the fact that Constitutional Court judges are appointed for a single nonrenewable term and are further termlimited by age may have had the unintended consequence of undermining institutional continuity and therefore of augmenting executive influence on the court.
Indeed, the conditions of appointment, including pay, term limits, and general independence seem to heavily influence the nature and extent of the discretion individual judges exercise. This can be seen in the Philippines, where the leadership of individual judges has not been as significant, arguably because judges there do not have life tenure, have relatively low pay, and are appointed by the president. Similarly, poor pay, corruption, lack of job security, and patronage make Cambodian judges vulnerable to outside influence and thus corruption.
The most extreme lack of judicial authority is evident in China, where the judiciary is seen as an arm of the Communist Party of China (CPC). What is interesting there, however, is that this politicisation of the judiciary gives the office of chief justice greater importance. Until 2008 decisions of the Supreme People’s Court (SPC) were influenced by the Court Presidency of Xiao Yang (1999–2008), who was largely faithful to Deng Xiaoping’s reforms that stressed the ‘rule of law’, ‘trial independence’ and professionalism as against inappropriate CPC intervention and misapplication of checks and balances within the justice system. But since Wang Shengjun became Court President in 2008, politicization of the SPC and the court system based on party leadership has been enhanced.
To understand the nature of judicial politics, it is essential to appreciate the juridical or legal foundations of the judiciary. All aspects of law and justice, such as the ideas of jurisdiction, proceedings, actions and submissions, deliberation, judgments and orders, will more or less influence how judges exercise their authority. Perhaps most important, three aspects of the judiciary at the highest level make it a unique institution: it must act according to procedures and laws; it must exercise its authority openly, subjecting itself to public scrutiny and examination; and generally speaking it must give reasons for its judgments, that is, it must persuade using arguments rather than decide by the pure exercise of will, untrammelled by the requirements of reasoning.
Since the law is usually respected, the judiciary, clothing itself in the vestments of such august authority, is a powerful institution that can make far reaching and influential decisions because its verdicts have the imprimatur of the law. At the same time, however, the law, with its unique requirements, places powerful limitations on the exercise of authority by the judiciary. These limitations can be summarised under the general rubric of ‘the rule of law’, which implicitly assumes ‘ not the rule of men’. Consequently, judges are assumed to protect the constitution by interpreting , not making , the law.
This overriding presumption has a number of aspects. For example, the assumption that the court will treat like cases alike underscores the requirement that courts will act consistently and follow their previous decisions. The idea of stare decisis thus becomes both a powerful resource and a limitation on what judges and courts can do in a specific case. Similarly, the presumptions that unconstitutionality cannot be ‘prospective’ and that impugned laws are invalid as of their enactment (and not from the judgment date), that judges cannot simply ‘redraft’ legislation to make it valid, and finally that decisions have to be made public and persuade through legal reasoning—all these are significant limits the law imposes on the judiciary. 6
The exercise of judicial review—the authority to declare executive or legislative regulations or enactments unconstitutional—is perhaps the judiciary’s most powerful source of authority. Judicial review, the power exercised by courts founded on liberal constitutionalism, is constitutionally conferred on the judiciary in Thailand, the Philippines, Korea, Japan, Indonesia, and India, though the power can be limited. For example, the Indonesian MK can only review the constitutionality of statutes enacted by the national parliament and therefore it cannot review most Indonesian law, which is found in executive and departmental regulations.7 In contrast, in the Philippines the ‘propeople, propoor, and proFilipino’ nature of the Constitution has meant that its Supreme Court has an extensive constitutional mandate that not only entrenches judicial review of cases related to human rights, including such new rights as those of indigenous peoples, it also allows the court to define economic policy and social justice. As a result the court was able to invalidate major reform initiatives of the Ramos government.8
Ramos assumed the presidency in 1992 with the intention of transforming the Philippines into a newly industrialized country by 2000. To achieve that end, he advocated economic reforms based on, among other things, liberalization, deregulation, and privatization policies. The court’s decisions undermined these reforms. For example, in Manila Prince Hotel v. Government Service Insurance System (1997), the court allowed a Filipino corporation to match the winning bid of a Malaysian company for 51 per cent of Manila Hotel shares, justifying its decision as upholding the ‘Filipino First Policy’ espoused by the 1987 Constitution. In Tatad v. Secretary of Energy (1997), the court also invalidated the 1st Oil Deregulation Law on the ground that it violated the economic rights of the Filipino people. Importantly, in Santiago v. Comelec (1997) the court ruled that the Initiative Referendum Act was not a sufficient support for amending the Constitution, thwarting efforts to remove from the text of the Constitution alleged economic protectionist or nationalist provisions as well as term limits for elected officials.9
This form of judicial review, where the court can hold enactments unconstitutional, should be distinguished from ideas of the administration of the law that are specific to legalpolitical institutions in China, Cambodia, and Malaysia. In those countries the judiciary is seen as an arm of the ruling party which is expected to ensure that party demands are recognized and enforced. We can see the contrast clearly in Malaysia, where the Supreme Court at first emphasised the importance of separation of powers in its jurisprudence, only to abandon that ‘political theory’ after the 1988 assault on it by Dr. Mahathir and the United Malays National Organization (UMNO).10 But even where there is judicial administration rather than review, the court’s power can vary significantly. In China, where there is no judicial review and the court is under direct political control, jurisprudence still matters. Thus the Wang Shengjun Court has endorsed the ‘Three Supremes’ (sange zhi shang) , placing the party’s cause and the needs of the people on the same level as the supremacy of law. While reiterating the importance of the CPC, especially the leadership of its Central PoliticalLegal Committee, Wang refers to judicial independence and professionalism (though in the form of an institutional response that reflects ‘Chinese characteristics’).
The importance of the legal nature of the judiciary becomes especially apparent when scholars seek to examine judicial activism—whether the judiciary has assumed too much power and thereby intruded improperly into the political arena. To some extent the very use of the word activism presumes that there is a ‘proper’ scope of judicial review that has clearly limned boundaries to demarcate between judicial quiescence and judicial overreach. I would argue that it is an implicit conception of the rule of law (with its jurisprudential and procedural assumptions) that allows scholars to argue in terms of activism. The more judges and courts seem to overstep, go beyond, or subvert principles of the rule of law, the more they will appear to be acting politically rather than legally and will therefore seem ‘activist’. For example, because the Japanese Supreme Court has rarely exceeded strict legal principles, it is widely regarded as not an activist court.
In contrast, it is perhaps because the KCC in Korea has relied on traditional jurisprudential techniques, such as proportionality, to balance interests that scholars questioned the basis of its decision in the Relocation of the Capital City Case. One of the central issues in the 2002 presidential election was the pledge by Roh MooHyun of the ruling New Millennium Democratic Party to move the capital away from Seoul to promote balanced development across the country. In the 2004 Capital City Case, the KCC held that the legislative act to move the capital was unconstitutional, basing its decision on the grounds that an operative though unwritten ‘customary constitution’ held Seoul to be the capital. This customary constitution could only be revised by following constitutional procedures (Article 130) that require a national referendum. The KCC decision striking down the act evoked both wideranging political and legal debates and the charge of judicial activism, precisely because, I contend, the concept of a customary constitution seemed to overstep the rule of law as previously understood.
Similarly, Thai constitutional court decisions were not challenged until a series of them seemed to go beyond the rule of law, suggesting improper activism. The court’s decision to uphold Prime Minister’s Thaksin’s innocence was interpreted as political, even though the 1,200page judgment seemed to suggest that unusual voting rules may have transformed minority opinions into a majority ruling. Subsequent cases raised more substantial concerns. The decision in May 2006 to annul the April general elections was questioned because of unusually broad legal reasoning. The 2007 dissolution of the Thai Rak Thai party, soon after adoption of the postcoup constitution, seemed political because the justices abruptly ended testimony by defence witnesses—and then returned just hours later with a verdict less than three pages long that ignored vital questions, such as how votebuying might be considered antidemocratic behaviour as defined by relevant law or how court dissolution of a party could be reconciled with the constitutionally guaranteed freedom to form a party. Finally, in the Samak case, the court forced the resignation of the first prime minister elected under the 2007 constitution by relying on a dictionary definition of ‘employee’ rather than the actual definitions set out in Thailand’s civil code and labour laws.
These examples from Korea and Thailand are not unique. Many examples of such verdicts can be found in other countries in the region. What they reveal, however, is that it is the very basis of its authority—the law—that lays the foundation for evaluating what the judiciary does and thereby sets the standard for assessing judicial activism or ‘creativity’.
The discussion above has revealed the importance of individual judges in shaping judicial politics. It has also shown the important role of the idea of the rule of law in determining both the opportunities for and the constraints on judicial discretion. In addition to these factors, it is clear that the judiciary as an institution is significant for our understanding of judicial politics. The institutional aspect especially, its origins, history, and continuing influence on how the law and politics evolve, has farreaching implications for both the discretion of individual judges and the jurisprudence of the court. Though each element— individual, jurisprudential, and institutional—may decide or influence important aspects of judicial politics, to understand the comprehensive nature of judicial politics in any country requires an appreciation of the dynamic interplay between these three elements. This more dynamic understanding of the determinative role of the judiciary in politics is suitably comprehended, I would argue, in the idea of legitimacy.
Legitimacy is a complex notion that takes into account diverse conceptions of power and authority (see generally Kane and Patapan 2009; Kane et al. 2011). Where judicial institutions are vitally concerned with the administration of justice, legitimacy is refracted through the lens of the ‘law’ and therefore assumes a complexity not evident in other institutions. This is perhaps most evident in criminal law, where the decisions of judges on both culpability and sentencing are most obviously evaluated in terms of just outcomes. But where questions involve more subtle notions of constitutionalism, such as ideas of rights, freedoms, and the rule of law generally, whether any single decision is just becomes more complex to discern and evaluate. As a result, the judiciary here finds itself in an especially difficult situation in trying to ascertain how far it can exercise its power while preserving its legitimacy. Because the role of the judiciary is both legal and political, judges need to be especially mindful of the unique demands the exercise of judicial review makes on them.
These demands are complicated not only by the uniquely political and legal role of the courts but also by contending sources of legitimacy. Foremost, of course, are the constitution and the rule of law that gives the court its most powerful mandate. Legitimacy is therefore most readily secured in complying with and defending the rule of law, as we saw above in discussing the jurisprudence of the courts and the claims made for and against judicial activism. But the judiciary is aware that its decisions defending the rule of law also have political consequences. The reason for this, though apparently paradoxical, is simple: In a sense, the less authority the court exercises, the greater its legitimacy and influence. Consequently, the more a court intervenes in both law and politics, the more it looks like any other arm of government or political institution and the more vulnerable it becomes to strident and sometimes immoderate political critique.
Judicial legitimacy is thus both very powerful and quite fragile, easily undermined by suspicions of impropriety and corruption. Therefore, in considering the consequences of its decisions, the judiciary will defend its own legitimacy not just for apparently selfseeking purposes but in order to defend the rule of law more generally. Because the judiciary is the interpreter of the rule of law, its legitimacy reflects fundamentally on the law itself. But in seeking to ensure that its legitimacy is not undermined by its judgments, the judiciary will look not only to the rule of law, including the larger community of lawyers and judges, but to other sources of legitimacy. Here we consider the two major sources: the ‘people’ and the executive or government.11
One of the crucial sources of judicial legitimacy is the people. This democratic mandate is especially clear in Asia, where constitutional reform and the entrenchment of judicial review were seen as a part of a democratic process to overthrow previously authoritarian regimes. Postcolonial independence and constitutional innovation were fundamentally democratic in intent in Thailand in 1987, India in 2003, the Philippines in 1987, South Korea in 1988, Indonesia in 2003, and Malaysia in 1957. It is therefore not surprising that people in those countries would see the judiciary as a bulwark against authoritarian rule and expect judges to exercise their judgment against encroachments on rights and freedoms.
Such a mandate is a powerful source of authority and legitimacy that can sustain the courts for a long time. Indeed, popular legitimacy is so powerful that it is even evident in countries that do not have much sense of judicial review. Even in China the importance of public sentiment is such that in the Liu Gong case the SPC changed its decision to accommodate it. Thus the SPC, though it has often risen to the defence of national standards, sometimes appears to take its cue directly from public opinion as well as the party.12
But this democratic source of legitimacy can impose highly complex demands on individual judges and courts seeking to defend their moral authority and protect their institutional power while dispensing justice. The Philippines court in a sense owed its origins to people power. Yet in its 2001 decision to remove Joseph Estrada from the presidency, the court seemed to go against the people’s wishes in order to protect the integrity of the constitution. Subsequent attempts by mostly poor proEstrada supporters to launch their version of ‘People Power’ in May 2001 ended in violence, destruction of property, and declaration of a state of rebellion. It also led in mid2003 to attempts to impeach members of the court. The legislature’s impeachment of Chief Justice Hilario Davide in November 2003 resulted in the court using its constitutional powers to preempt the impeachment process. These decisions seemed to challenge the democratic credentials of the court, apparently aligning it with the administration of Estrada’s successor and rival, Gloria MacapagalArroyo. Similarly, the Thai court’s decisions on electoral laws appeared to go against the view of the majority of the public, making the court seem to be part of the entrenched powers.
Beyond such instances, it is clear that the changing nature of politics will elicit different public expectations. As Korean society has become more pluralistic, with a larger civil society and a more sophisticated community of lawyers, democratic expectations of the judiciary have become more subtle and nuanced. Thus the goodwill of the people as a source of legitimacy and authority based on seemingly neutral decisions of the courts may be limited by the type of cases decided, such as Korea’s capital city and impeachment cases. The risk is that as its decisions become increasingly contentious, the court will look no different from the executive and the bureaucracy.
In addition to its democratic legitimacy, the judiciary is aware of the importance of securing legitimacy within the overall framework of the new constitutional settlement. This means that in questioning or even overriding executive decisions, the judiciary is aware of the need to preserve its legitimacy before the legislature and the executive. Especially in its early period when a court’s authority may be uncertain, the judiciary is often wary of imposing difficult, if not impossible, demands on the executive. The success of Indonesian democracy is arguably attributable in large measure to the judgment and discretion of the Indonesian Constitutional Court, whose ‘strategic pragmatism’ has gained it the title of guardian of Indonesia’s democracy. Although the court has employed legal means to limit the government, it has also appreciated the difficulties the executive faces in enforcing such limits. The use of prospective invalidation, decrees of invalidity that recognised further attempts at compliance, and invalidity subject to deadline, show a court that is cognisant of the limits of democratic principles in an emerging democracy.
Similarly, the Indian Supreme Court has handed down judgments that have expanded free access to antiretrovirals for AIDS patients, created a right to food, allowed Delhi to enact antipollution policies, provided justification for an education guarantee scheme, and created new mechanisms for regulating blood banks and processing medical negligence claims. It has issued interim orders mandating provision of cooked midday meals in all primary schools and of 35 kilos of grain each month at highly subsidized prices to 15 million destitute households, but these decisions have also recognised government financial constraints and the fact that the executive may be unable to implement more ambitious judgments.
The need for considered exercise of judicial review to protect judicial legitimacy arises from the complex and often fraught relationship between the judiciary, the legislature, and especially the executive. A court may have the authority to deem provisions unconstitutional, but this alone is not sufficient. It is not simply the possibility that the executive will disregard the court’s judgment and thus undermine its authority; there is also the fear that the executive will take direct action to limit the court’s power. What happened in Malaysia is instructive. The first three prime ministers after independence in 1957 (Tengku Abdul Rahman, Tun Razak, and Tun Hussein Onn), who were all lawyers, showed respect for the judiciary by not commenting on its decisions or attempting to limit its constitutional powers. In contrast, the premiership of the medical doctor Mahathir, Malaysia’s fourth and longestserving prime minister (1982–2003), saw major constitutional and legislative limitations imposed on the judiciary. Soon after assuming office, Mahathir in 1985 abolished civil appeals to the Privy Council and began criticising the judiciary for making decisions contrary to the intentions of the executive, threatening to create a law the judiciary would have to follow. Mahathir felt so constrained by judicial decisions that in 1988 he dismissed the Lord President and two other Supreme Court judges. This incident, in addition to the absence of a major opposition party in Malaysia, has resulted in a judiciary that has largely deferred to the executive, at significant cost to its own legitimacy.
These dangers suggest that the judiciary may be tempted to avoid executive attack by simply endorsing or upholding executive decrees. But this has the potential of crucially undermining the legitimacy of the courts. In India on 25 June 1975 Prime Minister Indira Gandhi suspended Article 21 of the Constitution and imprisoned hundreds of people (mainly political opponents and civil society activists) under an executive order proclaiming a state of emergency. Nine high courts found the order unconstitutional. They were overruled by the Supreme Court. That decision has had farreaching implications for the Supreme Court’s legitimacy as a guardian of civil liberties. Subsequent attempts by the prime minister to pack the court with pliable judges, superseding judges who were seen as antiregime and transferring those perceived to be hostile to her policies, further undermined the legitimacy of the court. The court has been trying ever since to regain its legitimacy but, mindful of its experience, has been using a more nuanced approach. As the cases of Malaysia and India show, it takes considerable time for a court to recover lost legitimacy.
Perhaps the question of judicial legitimacy is resolved or made easier where there is no clearcut separation between the political and the legal, so that the question of judicial legitimacy does not arise. China’s system has been described as politicallegal—the antithesis of the American separation of powers doctrine.13 Indeed, according to Article 3 of the 1980 State Constitution, all state organizations, including the SPP and SPC, are subject to ‘democratic centralism’. Yet the SPC still has the ability to ‘supervise’ and ‘guide’ the people’s court system. It also has an informal capacity to improvise review through judicial interpretation of the law, even if it has no formal power to review national legislation. It is true that the role of the SPC has changed over time. Recent attempts to emphasise ‘Chinese characteristics’, ‘mass line’, and the ‘Three Supremes’ demonstrate the importance of the judiciary as a form of ‘legitimacy building’: by improving the competence of judicial institutions the CCP hopes to enhance citizen confidence in leadership by the party.
A similar account can be given for Cambodia, where the courts are used to implement political decisions. After democratic elections in 1993 Cambodia adopted a system of checks and balances that enshrined judicial independence in the Constitution. But the judiciary has been too weak to resist the Cambodian People’s Party (CPP), which employs the courts to weaken opposition parties and suppress outspoken critics. Consequently, Cambodians see the courts as corrupt and serving party interests. Legal reforms since the early 2000s, such as institutional capacitybuilding projects, new laws and regulations, new buildings, and increased salary for judges and prosecutors, have all been initiated to enhance judicial power and legitimacy. Yet because they have not secured basic aspects of the rule of law, such as procedural fairness, equality before the law, and equal access to justice, their success has been limited.
Leaving aside cases of rule by law, courts that have extensive powers of judicial review and are secure in established constitutional regimes in effect have two paths to securing legitimacy: the Japanese and the Korean. The Japanese Supreme Court, aware of the continuing dominance until recently of the Liberal Democrats, has been unwilling to challenge policies of the Diet. It has decided to ensure its legitimacy by limiting its exercise of judicial review. Korea’s KCC has taken the alternative and potentially more difficult path of more extensive use of judicial review without obvious direct challenge of the executive. For example, in the landmark impeachment of President Roh MooHyun the court attempted to satisfy the opposition parties and their supporters by finding that President Roh had committed illegal and unconstitutional acts that would justify the motion of impeachment, but it also tried to please the president’s side by allowing him to keep his office despite the recognized violations. In doing so it decided that the court was the final authoritative arbiter of whether or not impeached public officials should be dismissed, even if they had been found guilty of illegal activities.
Judicial Legitimacy in Asia
It is perhaps inevitable that the extraordinary diversity in history, culture, and political traditions in Asia raises considerable obstacles to any attempts to generalize about the nature of judicial legitimacy in Asia. Nevertheless, as we have suggested, there are certain major themes and ideas that are consistent in all these countries, allowing us to discern important commonalities in judicial politics in the region. Useful starting points for understanding judicial politics in Asia can be found in the character and discretion of individual judges; the autochthonous jurisprudential and rule of law principles that define, empower, and constrain their discretion; and the institutional aspects of the judiciary, such as the degree of judicial independence, how judges are appointed (and dismissed), and more generally the character of constitutionalism in each nation.
But perhaps the most important aspect, as I have suggested, is the question of legitimacy. The essential foundation of the judiciary is legitimacy, since its very authority is derived not from its access to financial or political power but from the respect accorded to the rule of law. The judiciary in every country is therefore acutely aware of its own legitimacy and engaged in securing and enhancing it. Yet any such attempt is inevitably complicated by the dual nature of the judiciary. In exercising judicial review courts at the highest level are in effect both a political and a legal institution. They are therefore inevitably in a difficult situation, attempting to secure legitimacy by negotiating this duality, defending the rule of law and constitutionalism while considering the larger implications of their jurisprudence for the other branches of government, and the people generally.
Legitimacy is the fundamental concern of every court in the region. How they negotiate this problem reveals much about the state’s constitutionalism. In states with entrenched principles of liberal constitutionalism, it is possible to discern a sophisticated judiciary that has successfully negotiated the contending demands of facilitating executive policy ambitions while defending the principles of rule of law and constitutionalism. Japan, Korea, and more recently Indonesia have shown the deft touch necessary for pursuing prudent accommodation and compromise. In other cases we see how such attempts can fall short, either in favouring the executive, as in Thailand and the Philippines, or by succumbing to direct executive initiatives, as in Malaysia. The unusual case of Pakistan shows how in rare cases the judiciary may successfully counter attempts at manipulation. But in general the courts are relatively weak and therefore vulnerable to concerted and powerful political attacks. For this reason there are at the other extreme courts that de facto, if not de jure, exercise little or no judicial review. In China and Cambodia the principle of ‘rule by law’ means that the judiciary is effectively an arm of government. There notions of legitimacy are inevitably tied to the hopes and ambitions of the reigning regime or party.
Thus judicial politics in Asia demonstrates an extraordinary diversity that traverses the spectrum from liberal constitutionalism to the oneparty state. This diversity warns against a tooready application to Asian courts of principles and insights, such as judicial activism, that are familiar to Western students of constitutionalism. Yet this very diversity allows us to raise for future research fruitful questions about leadership, law, and legitimacy that may yield greater insights into the unique nature of judicial politics.
1 On the general trend see Tate and Vallinder (1995). On challenges to the trends from both progressive and conservative perspectives, see Ely (1980); Hirschl (2004); Mandel (1989); Morton and Knopff (2000); Bork (1990); Tushnet (1999).
2 On the theoretical origins of the founding of America, see Stoner (1992). On the international influence of the American constitution, see Henkin and Rosenthal (1990).
3 As Ciencia notes above, Claudio Teehankee Sr. and Vicente Abad Santos were dissenters in the Marcosera Supreme Court. Pedro Yap, as a delegate to the 1971 Constitution Convention, voted against the transitory provisions of the 1973 Constitution that gave Marcos total control of the government. Marcelo Fernan was an opposition member in the Batasan Pambansa (National Legislature), and Andres Narvasa was part of the Agrava factfinding body which found the military culpable for the assassination of Benigno Aquino Jr. in 1983. The rest of the court consisted of reputed independentminded legal scholars and human rights or libertarian advocates.
4 It is notable that the judgment that established the principle of judicial review in America, Chief Justice Marshall’s opinion in Marbury v. Madison , 5 U.S. (1 Cranch) 137 (1803), was one of the earliest Supreme Court decisions.
5 As Un So notes above, since 2002 as part of the judicial reform process the government has trained more lawyers and prosecutors so that by 2010, there were 309 judges and 594 lawyers.
6 On the jurisprudential problems raised by void ab initio vs progressive overruling, as well as ‘advisory’ opinions, see Patapan (2000: 102–104).
7 Examples of these, as Butt notes above, include government regulations, presidential regulations, and ministerial decrees. The court also lacks jurisdiction to review the many thousands of bylaws that local governments have enacted since decentralisation.
8 As Ciencia notes, the court did uphold the constitutionality of the Ramosendorsed valueadded tax in Tolentino v. Secretary of Finance (1995) and sustained the Philippine Senate’s ratification of the World Trade Organization in Tañada v. Angara (1997).
9 It also has lawmaking powers. For example, in 2008, the Supreme Court promulgated the writ of amparo to contain the rise in extrajudicial executions in the Philippines, and in April 2010 promulgated the writ of kalikasan to address urgent environmental concerns.
10 Mahathir sacked the Lord President and two Supreme Court justices, subjected judges to disciplinary action, and finally amended the Constitution to limit the powers of the judiciary.
11 It is tempting to consider the influence on the courts in terms of concentric or overlapping circles, with the centre dominated by peers; then legal communities, such as bar associations; human rights advocates and NGOs, as well as the international legal community; and finally the encompassing political communities (see, for example, Epp 1998 and Baum 2006). Though useful as a heuristic device, such an approach would not give sufficient attention to the influence of ideas (legal, indigenous, religious, cultural) on decisions and to the unpredictability of political contestations and struggles, which could constantly disrupt such a neat typology.
12 See, for example, Hou and Keith’s discussion above of the 2007 SPC ‘opinion’ (yijian) on the three principles of open trial (according to law, open trial without delay, and open trial in all respects), as well as the Wang Shengjun court’s 2009 regulations (guiding) on broadcasting live court trials over the Internet.
13 The SPC, as Hou and Keith note, has to cope with the institutional realities of ‘judiciary and administration are inseparable’ (sifa yu xingzheng bufen).