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The Politics of Judicial Review in Asia

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 The Politics of Judicial Review in Asia

Dr. Björn Dressel

Associate Professor, Crawford School of Public Policy
Australian National University
Bjoern.dressel@anu.edu.au

FORTHCOMING
OXFORD HANDBOOK OF CONSTIUTIONAL LAW IN ASIA

Abstract

As judicial review has expanded in Asia during the last quarter century, new studies have
emerged that seek to move beyond the traditional scholarly approach to the region to draw
attention to judicial review from a more political perspective. Surveying this literature, this
article addresses three central questions that have recently arisen: (1) What is driving countries
in the region to adopt judicial review? (2) Under what conditions do courts exert these new
powers assertively—and successfully? (3) Now that they are empowered, how do judges decide
cases as they do, and what forces, other than an independent judgement on how the law applies
to the facts before the court, are likely to influence their decisions? Arguing that the region
poses considerable challenges to current models, the article also draws attention to recent
scholarly analyses of the informal dynamics of judicial politics, some of which take a distinct
relational approach that seems well suited to a better understanding of how judicial review
operates in this diverse, dynamic, region.

1
Introduction

Judicial review, the principle by which courts can declare acts of either the executive or the
legislative branch unconstitutional, has expanded considerably in Asia in the past twenty-five
years.1 Arising in part from the colonial legal heritage, in part from the far-reaching
constitutional changes that accompanied political and economic liberalization in the 1990s, two
primary models of judicial review have been adopted across Asia: one centralized, revolving
around a constitutional court, and the other decentralized, with judicial review diffused through
all levels of the court system. By 2010, of the sixteen countries in Asia, all but two, Brunei and
Vietnam, had adopted some form of judicial and constitutional review (see table 1), though
there are considerable differences among these diverse jurisdictions.2

It is therefore perhaps not surprising that a distinct body of scholarship has emerged that draws
attention, both theoretical and empirical, to the political dynamics of judicial review. Moving
beyond normative and descriptive legal scholarship, empirical scholarly analyses have drawn
on theoretical debates in judicial politics and other fields to track judicial developments in the
region. From these studies three basic questions have emerged: (1) What is driving countries
in the region to adopt judicial review? (2) Under what conditions do courts exert these powers
assertively—and successfully? (3) Now that they are empowered, how do judges decide cases
as they do, and what forces, other than independent judgement on how the law applies to the
facts before the court, are likely to influence their decisions?

As a critical review of previous scholarship will show, while Asia’s political, legal, and cultural
diversity raises a number of questions, it is also fertile ground for debates about judicial review.
For instance, while models developed in the West have often been applied to the region, the
puzzling performance of Asian courts in high-profile constitutional cases has led observers to
question the theoretical reach of current models of judicial behaviour there. As a result, new
scholarship has begun to give more attention to the informal dimension of judicial politics in
Asia, especially the importance of relational dynamics based on, e.g., common political
interests, ideas, social identity, and even clientelistic obligations—dimensions not fully
accommodated in existing models of how judges engage in judicial review.

1
For purposes of this chapter, Asia refers only to East and Southeast Asia, not South Asia
2
See for details, Wen-Chen Chang and others, Constitutionalism in Asia. Cases and Materials (Hart Publishing
2014) 307-459.

2
This chapter therefore engages with scholarly works that have responded to the three major
questions raised— how to explain the spread of judicial review in the region, the assertiveness
of courts, and the behaviour of judges. It will also reflect on how what is happening in the
region might inform more general debates about judicial review, including, perhaps, a more
distinct future research agenda on informality in judicial politics. Such an agenda might well
apply not only to the region but also to other less institutionalized settings in the Global South.

How Judicial Review Has Been Institutionalized in the Region

A cursory look at the region illustrates that those states that function under a common law
system, arising from British or US colonial rule (e.g., Japan, Malaysia, Singapore, the
Philippines), operate a decentralized system of judicial review vested in the courts, whereas a
centralized system of specialized constitutional review anchored in a Constitutional Court has
mainly been adopted by their civil law neighbors (e.g., Taiwan, South Korea, Mongolia,
Cambodia, Thailand, Indonesia, and Myanmar). Socialist legal systems (e.g., China, Laos)
have also opted for constitutional review, though there it is generally exercised by a special
committee of the legislature. And although East Timor has yet to constitute its Supreme Court,
leaving judicial review for now to the Court of Appeal, only Vietnam and Brunei have no
constitutional provision for formal judicial review, though debates continue at least in
Vietnam—(and perhaps even in China (table 1).3

3
Son Ngoc Bui, ‘The Discourse of Constitutional Review in Vietnam’ 9 Journal of Comparative Law Larry Cata
Backer, ‘A Constitutional Court for China Within the Chinese Communist Party: Scientific Development and a
Reconsideration of the Institutional Role of the CCP’ 43 Suffolk University Law Review 593 Guobin Zhu,
‘Constitutional Review in China : An Unaccomplished Project or a Mirage ?’ 43 Suffolk University Law Review
625 M. Ulric Killion, ‘China's Amended Constitution: Quest for Liberty and Independent Judicial Review’ 4
Washington University Global Studies Law Review 43

3
Table 1, Judicial Review in East and Southeast Asia

Country Region Type of Reviewing Year

Review Institution Established
Brunei Southeast Asia No review, only Interpretation 1984
interpretation Tribunal
Myanmar Southeast Asia Constitutional Constitutional 2008
review Tribunal
Cambodia Southeast Asia Constitutional Constitutional 1993
review Council
China East Asia Constitutional Standing Committee 1949
review of the National
People’s Congress
Indonesia Southeast Asia Constitutional Constitutional Court 1997
review
Japan East Asia Judicial review Supreme Court 1945
South Korea East Asia Constitutional Constitutional Court 1986
review
Laos Southeast Asia Constitutional National Assembly
review Standing Committee
Malaysia Southeast Asia Judicial review High Court 1957
Mongolia East Asia Constitutional Constitutional Court 1992
review [Tsets]
Philippines Southeast Asia Judicial review Supreme Court (1987)
Singapore Southeast Asia Judicial review High Court 1969
Taiwan East Asia Constitutional Council of Grand 1947
review Justices of the
Judicial Yuan
Thailand Southeast Asia Constitutional Constitutional Court 1997, 2008,
review 2017
Timor Leste Southeast Asia Judicial review Supreme Court
Vietnam Southeast Asia No review, only National Assembly
supervision
Adapted from Chang, Thio et al. 2014, p. 312.

4
While in East Asia the centralized model of constitutional review is dominant, in Southeast
Asia that model is almost equally balanced by the judicial review model. While partly a
reflection of a given state’s legal system, judicial review also reflects the dynamics of regime
change in those states. In fact, except for Taiwan’s Constitutional Court (known before 1993
as the Council of Grand Justices), the creation of constitutional courts in the region has often
been the direct outcome of the democratisation and constitutional reforms of the late 1980s and
1990s. Given a unique opportunity to borrow models from the West (e.g., Germany, Austria,
or France), or from each other4, these courts have been specifically equipped with powers to
review the constitutionality of parliamentary or executive enactments and to resolve disputes
between government agencies, although they differ in the extent to which they can perform
abstract and concrete review or respond to individual complaints.5 Recognition of the political
nature of constitutional review is evidenced by these courts being equipped with powers to
adjudicate disputes between state organs and exercise ancillary powers of impeachment, party
dissolution, and resolution of election disputes. Combined with the resulting often elevated
public profile of courts, this expanded competence has invited scholarly reflections on the
constitutional consequences6, often based on claims that the region is undergoing a broad
judicialization of politics.7

Scholarly Opinions on the Politics of Judicial Review in Asia

Given these developments, it is not surprising that the spread of judicial and constitutional
review in the region garnered much attention in the first wave of empirical law and politics
scholarship. Moving beyond early descriptions of the expansion of judicial power, in the region

4
Tom Ginsburg, ‘Constitutional Courts in East Asia’ in Rosalind Dixon and Tom Ginsburg (eds), Comparative
Constitutional Law in Asia (Edward Elgar 2014) 55
5
See for details When Chang et al 2014, 329
6
Tom Ginsburg, ‘Constitutional Afterlife: The Continuing Impact of Thailand's Postpolitical Constitution’ 7
International Journal of Constitutional Law 83 Joerg Menzel, ‘Constitutionalism in Southeast Asia: Some
Comparative Perspectives’ in Clauspeter Hill and Joerg Menzel (eds), Constitutionalism in Southeast Asia:, vol 3
(Konrad Adenauer Stiftung 2009) C Dürkop and Yap Hui Bin, Present Status and Future Development of
Constitutional Jurisdictions in Asia (Konrad Adenauer Stiftung Publisher 2004) Marco Bünte and Björn Dressel
(eds), Politics and Constitutions in Southeast Asia (Routledge 2017)
7
Björn Dressel (ed), The Judicialization of Politics in Asia (Routledge 2012)

5
and globally8, the new studies have sought specifically to understand why politicians would be
willing to limit their own powers by assenting to judicial review. Here Ginsburg’s strategic
account of how judicial review was established in East Asia9 has been foundational from both
empirical and theoretical perspectives. Drawing on Ramseyer’s work on judicial independence
in Japan10, Ginsburg advances the argument that fragmentation of the political system, as
measured by the competitiveness of parties, drives constitutional arrangements for judicial
review, and ultimately the independence and related performance of judges. Judicial review is
thus conceptualized as strategic insurance against political uncertainty: How the party system
configures political forces at the time of the transition to democracy explains variation in initial
judicial scope, and eventually judicial behaviour. As Ginsburg has shown in his East Asian
cases, where political actors were firmly in control of the transition, incentives to expand court
powers were few; where political diffusion was greater, so were incentives to promote judicial
powers.11 Similarly, the more diffused the post-transition party structure, the “more space
courts have in which to operate” in terms of review powers as there is less ability to control
appointments or punish the court and individual judges, and thus the more likely it is that courts
will assert their powers.12

This electoral market or insurance model has, however, been challenged, both empirically and
theoretically. In fact, a number of case studies from the region have illuminated nuances in the
process of judicial empowerment that do not always align with the insurance model,
particularly, though not exclusively, within settings that are less than democratic.13 Hirschl’s
hegemonic preservation thesis, though developed outside the region, has provided a powerful
counter-narrative. He views the establishment of judicial review and the resulting judicial

8
Neal C. Tate and Torbjörn Vallinder (eds), The Global Expansion of Judicial Power (New York University Press
1995) Neal C. Tate, ‘The Judicialization of Politics in the Philippines and Southeast Asia’ 15 International
Political Science Review 187
9
Tom Ginsburg, Judicial Review in New Democracies. Constitutional Courts in Asian Cases. (Cambridge
University Press 2003)
10
Mark J. Ramseyer, ‘The Puzzling (In)Dependence of Courts: A Comparative Approach’ 23 Journal of Legal
Studies 721 Mark J. Ramseyer and Eric B. Rasmusen, Measuring Judicial Independence: The Political Economy
of Judging in Japan (University of Chicago Press 2003)
11
Ginsburg, Judicial Review in New Democracies. Constitutional Courts in Asian Cases. 30
12
Ibid. 25-26
13
Lawrence Shao-liang Liu, ‘Judicial Review and Emerging Constitutionalism: The Uneasy Case for the Republic
of China on Taiwan’ 39 The American Journal of Comparative Law 509 Donald Horowitz, Constitutional Change
and Democracy in Indonesia (Cambridge University Press 2013) Norikazu Kawagishi, ‘The birth of judicial
review in Japan’ 5 International Journal of Constitutional Law 308 David J. Policy Danelski, ‘The Origins of
Judicial Review in the United States and Japan’ 19 Policy Studies Journal 151 Björn Dressel and Marcus
Mietzner, ‘The Judicialization of Electoral Politics in Asia: A Tale of Two Courts’ 25 Governance 391; see also
Tom Ginsburg, ‘Confucian Constitutionalism? The Emergence of Constitutional Review in Korea and Taiwan’ 27
Law & Social Inquiry 763

6
empowerment as the “by-product of a strategic interplay” between influential sociopolitical
groups—politicians, economic elites, and judges themselves—that insulates challenged policy
preferences against popular pressures.14 That argument has found a receptive audience,
especially among scholars trying to make sense of constitutional and judicial developments in
Thailand.15 Thus, although by now institutional arrangements for judicial review seem well-
established in the region, the debates about their political roots are not yet settled, especially
since the dynamism and diversity of the region militate against easy generalization.

A closely related question that has arisen is under what conditions courts exert their judicial
review powers successfully—a question common among scholars puzzled by the diversity of
court behaviour in the region, particular in high-profile political cases. Some scholars have
attempted to find answers through typological work on court behaviour16, others through
comparative17 and paired comparisons18, and still others through in-depth studies of single
cases19, but all seeking to identify reasons for expansions and contractions in the behaviour of
courts over time and across issue areas.20 Some scholars have emphasized structural factors,
such as major features of the political regime (e.g., authoritarian, democratic)21; the political

14
Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard
University Press 2004) 213
15
Eugénie Mérieau, ‘Thailand’s Deep State, Royal Power and the Constitutional Court (1997–2015)’ 46 Journal
of Contemporary Asia 445 Björn Dressel, ‘Judicialization of Politics or Politicization of the Judiciary?
Considerations from recent events in Thailand’ 23 The Pacific Review 671
16
Björn Dressel, ‘The Judicialization of Politics in Asia: Towards a Framework of Analysis’ in Björn Dressel (ed),
The Judicialization of Politics in Asia (Routledge 2012) Albert H.Y. Chen and Andrew Harding (eds),
Constitutional Courts in Asia (Cambridge University Press 2018)
17
Chien-Chih Lin, ‘Autocracy, Democracy, and Juristocracy: The Wax and Wane of Judicial Power in the Four
Asian Tigers’ 48 Georgetown Journal of International Law Wen-Chen Chang, ‘Strategic Judicial Responses in
Politically Charged Cases, East Asian Experiences’ I Con 885 Tom Ginsburg, ‘Constitutional Courts in East Asia:
Understanding Variation’ 3 Journal of Comparative Law 80 Aurel Croissant, ‘Provisions, practices and
performances of constitutional review in democratizing East Asia’ 23 Pacific Review 549
18
Chang Jiunn-rong Yeh (ed), The Functional Transformation of Courts. Tawain and Korea in Comparison (V& R
Academic; National Taiwan University Press 2015) Chien-Chih Lin, ‘Pace of Constitutional Transition Matters:
The Judicialization of Politics in Indonesia and Korea’ 20 UCLA Journal of International Law and Foreign Affairs
275
19
Simon Butt, The Constitutional Court and Democracy in Indonesia (Brill Nijhoff 2015) Justine Guichard,
Regime Transition and the Judicial Politics of Enmity: Democratic Inclusion and Exclusion in South Korean
Constitutional Justice (Palgrave Macmillan 2016) Jaclyn N. Neo, Constitutional Interpretation in Singapore:
Theory and Practice (Routledge 2017) Hiroshi Itoh, ‘Judicial Review and Judicial Activism in Japan’ 53 Law and
Contemporary Problems 169
20
Jiunn-rong Yeh, ‘Politicization of Constitutional Courts in Asia: Institutional Features, Contexts and
Legitimacy’ in Henning Glaser (ed), Constitutional Jurisprudence (Nomos 2016) Alejandro N. Cienca Jr. , ‘From
Judicialization to Politicization of the Judiciary: The Philippine Case’ in Björn Dressel (ed), The Judicialization of
Politics in Asia (Routledge 2012) Dressel, supra note 15
21
Po Jen Yap, Courts and Democracies in Asia (Cambridge University Press 2017)

7
and legal powers of the judiciary22; the degree of political competition23; how much the legal
complex and the public in supporting the court24; and the structure of the political elites.25
Finally, some scholars have also drawn attention to internal court dynamics, such as how the
court leadership26, evolving values and preferences on the bench27, and internal politics might
affect court operations.28

Consistent with other broad scholarly debates29, what emerges from these works is less a single
comprehensive theory than a recognition that the assertive exercise of judicial review at critical
junctures may be the result of a complex interplay of factors and contextual configurations—
though it has been suggested that over time there may emerge stable court patterns along the
continuum of activist, restrained, and muted.30 Regional studies of courts in authoritarian
settings have also cautioned against overgeneralization, arguing that the very different
dynamics of court behaviour in China31 and Myanmar32 might best be related to a law-and-
order logic.33 An ancillary question that has arisen is what ensures the success of these new
courts—a question some authors have considered in strategic-delegative34 or game-theoretic

22
Cienca Jr. James R Klein, ‘The Battle for the Rule of Law in Thailand: The Constitutional Court of Thailand’ in
Amara Raksasataya and James R Klein (eds), The Constitutional Court of Thailand The Provisions and the
Working of the Court (Constitution for the People Society 2003) Jeong Hyun Jeon, ‘Political functions and
dilemma of the Korean constitutional court’ 47 Korea Observer 461
23
Tom Ginsburg, ‘The Constitutional Court and the Judicialization of Korean Politics’ in Andrew Harding and
Penelope Nicholson (eds), New Courts in Asia (Routledge 2010) Ramseyer and Rasmusen
24
Terence C. Halliday, Lucien Karpik and Malcom M. Feeley (eds), Fates of Political Liberalism in the British
Post-Colony: The Politics of the Legal Complex (Cambridge University Press 2014) Sida Liu and Terence C.
Halliday, Criminal Defense in China. The Politics of Lawyers at Work (Cambridge University Press 2016) Imelda
Deinla, ‘Public support and judicial empowerment of the Philippine Supreme Court’ 36 Contemporary
Southeast Asia: A Journal of International and Strategic Affairs 128 Sigal Ben-Rafael Galanti and Alon
Levkowitz, ‘Attitudes towards judicial review in Japan and South Korea: indications for the existence of a
liberal-democratic civic culture’ [Taylor & Francis] 25 International Review of Sociology 318
25
Dressel and Mietzner, supra note 13
26
Fritz Edward Siregar, ‘The Political Context of Judicial Review in Indonesia’ 5 Indonesia Law Review 208
27
Panthip Pruksacholavit and Nuno Garoupa, ‘Patterns of Judicial Behavior in the Thai Constitutional Court,
2008-2014: An Empirical Approach’ 24 Asian Pacific Law Review 16
28
Martites Danguilan Vitug, Shadow of Doubt: Probing the Supreme Court (Public Trust Media Group 2010)
Martites Danguilan Vitug, Hour Before Dawn. The Fall and Uncertain Rise of the Philippine Supreme Court
(Cleverheads Publishing 2012) David Law, ‘The Anatomy of a Conservative Court: Judicial Review in Japan’ 87
Texas Law Review 1545
29
Diana Kapiszewski, Gordon Silverstein and Robert A. Kagan (eds), Consequential Courts. Judicial Roles in
Global Perspective (Cambridge University Press 2013)
30
See Dressel, ibid, supra note 16
31
Ronald C. Keith, Zhiqiu Lin and Shumei Hou, China's Supreme Court (Routledge 2016) Liu Ling Li, ‘The
‘Production’ of Corruption in China’s Courts: Judicial Politics and Decision Making in a One-Party State’ 37 Law
& Social Inquiry 848
32
Nick Cheesman, Opposing the Rule of Law: How Myanmar's Courts Make Law and Order (Cambridge
University Press 2015)
33
Cheesman, ibid.
34
Eric C. Ip, ‘Judicial review in China: A positive political economy analysis’ 8 Review of Law and Economics 331

8
 35
terms. Others have noted the possibility that the role of the court is to facilitate dialogue
between branches of government rather than be the final arbiter of political conflict.36

The third and final question, now speeding to the centre of current regional debates about
judicial politics, is how to explain the professional behaviour of individual judges. Now that
judges are empowered, what might explain how they exercise that power, and to what effect?
Such questions have traditionally been at the core of judicial politics scholarship, though the
Asian context has proven to be difficult terrain for current models.

Traditionally, studies of judicial politics have been dominated by legalistic, attitudinal, and
strategic-rational approaches—approaches that come with very different hypothesis about what
motivates and influences a judge’s decision.37 Legalistic accounts assume that judges apply the
law in conformity with precedent and legal norms; legal considerations principally guide their
behaviour, and law and legal mechanisms are the sole constraint on their actions.38 Attitudinal
models, however, downplay the influence of law to argue that ideological positions and policy
preferences shape the decisions of judges and courts, especially courts of last resort.39 Finally,
the dominant strategic-rational models share the notion that judges seek to satisfy nonlegal
preferences, but they also acknowledge that in doing so they must take into account the
preferences of other political and institutional actors, so that they may adapt their preferred
decision outcome to expected responses or to secure the outcome that will be most accepted.40
Thus, all the traditional models of judicial behaviour assume, though to different degrees, that,
particularly in higher courts, considerations of policy, particularly legal policy, substantially
influence judicial choices.41

35
Chien-Chih Lin, ‘An Inter-court Struggle for Judicial Supremacy’ 11 University of Pennsylvania Asian Law
Review, 294
36
Jiunn-rong Yeh, ‘Presidential politics and the judicial facilitation of dialogue between political actors in new
Asian democracies: Comparing the South Korean and Taiwanese experiences’ 8 International Journal of
Constitutional Law 911 Po Jen Yap, Constitutional Dialogue in Common Law Asia (Oxford University Press 2015)
37
Jeffrey A. Segal, ‘Judicial Behavior’ in Keith E. Whittington, Daniel R. Kelemen and Gregory A. Caldeira (eds),
The Oxford Handbook of Law and Politics (Oxford University Press 2008)
38
Michael A. Bailey and Forrest Maltzman, The Constrained Court: Law, Politics and the Decisions Justices
Make (Princeton Univ. Press 2011)
39
Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge
University Press 2002)
40
Lee Epstein and Jack Knight, The Choices Justices Make (CQ Press 1998) Pablo Spiller and Rafael Gely,
‘Strategic Judicial Decision-making’ in Keith E. Whittington, Daniel R. Kelemen and Gregory A. Caldeira
(eds), The Oxford Handbook of Law and Politics (Oxford University Press 2010) Ramseyer
41
Lawrence Baum, Judges and their Audiences: A Perspective on Judicial Behavior (Princeton University Press
2006)

9
But though these models have all proved useful elsewhere, how well do they work in Asia?
Attempts to test the attitudinal model in the Philippines42 and Thailand43, and to explore judicial
ideology (or ideal points) in Taiwan44 and the Philippines45, have had at best mixed results. So
have descriptive statistical explorations of the independence of the voting patterns of the
Philippines Supreme Court bench46, or of the Thai Constitutional Court in highly political
cases.47

While the shortage of data, except perhaps for the Philippines48, has been a problem for the
emerging empirical literature, it is already clear that the region may raise fundamental
challenges to the core assumptions of current, mainly Western, models of judicial behaviour.
For instance, how valid for the region are assumptions that political and legal systems are
solidly institutionalised, so that they exert constraints on judges via accepted legal mechanisms
and doctrines (legalistic models)? or that ideological and policy preferences track party lines
(attitudinal models)? or that there is complete information that allows for strategic responses
to other political institutions (strategic-rational models)? In fact, within the region legal
changes are regular and frequent, ideological fault lines and party systems are not necessarily
coherent, and institutions are not firmly rooted—all of which introduce significant uncertainty
complicated by information asymmetries and the persistence of informal practices.49 In fact,

42
Laarni Escresa and Nuno Garoupa, ‘Judicial Politics in Unstable Democracies: The Case of the Philippine
Supreme Court, An Empirical Analysis 1986-2010’ 3 Asian Journal of Law and Economics 1 Laarni Escresa and
Nuno Garoupa, ‘Testing the Logic of Strategic Defection: The Case of the Philippine Supreme Court, 1986-2010’
21 Asian Journal of Political Science 189
43
Panthip Pruksacholavit and Garoupa, supra note 27
44
Lucia Dalla Pellegrina, Nuno Garoupa and Shirley Ching-ping Lin, ‘Judicial Ideal Points in New Democracies:
The Case of Taiwan’ 7 National Taiwan University Law Review
45
Lucia Dalla Pellegrina, Laarni Escresa and Nuno Garoupa, ‘Measuring Judicial Ideal Points in New
Democracies: The Case of the Philippines’ 1 Asian Journal of Law and Society 125
46
Desiree A. Desierto, ‘Judicial Independence: Evidence from the Philippine Supreme Court (1970-2003)’ in
Norman Schofield and Gonzalo Caballero (eds), The Political Economy of Governance (Springer International
Publishing 2015)
47
Björn Dressel and Khemthong Tonsakulrungruang, ‘Coloured Judgement? The Work of the Thai
Constitutional Court, 1998–2016’ early print, 13 June 2018 Journal of Contemporary Asia
48
See early efforts for the creation of a judicial high courts data base in the Global South, including a data set
for the Philippines Supreme Court (1970-2003), by Stacia L. Haynie, Reginald S. Sheehan, Donald R. Songer, and
C. Neal Tate. 2007. High Courts Judicial Database. http://artsandsciences.sc.edu/poli/juri/highcts.htm/. Its
early use and recent expansion is illustrated by scholarly works that include Neal C. Tate and Stacia L. Haynie,
‘Authoritarianism and the Functions of Courts: A Time Series Analysis of the Philippine Supreme Court, 1961-
1987 ’ 27 Law and Society Review 707 Stacia L. Haynie, ‘Resource Inequalities and Litigation Outcomes in the
Philippine Supreme Court’ 56 Journal of Politics 752 Desierto Stacia L. Haynie, ‘Paradise Lost: Politicisation of
the Philippines Supreme Court in the Post Marcos Era’ 22 Asian Studies Review 459
49
Björn Dressel, ‘The Informal Dimension of Constitutional Politics in Asia: Insights from the Philippines and
Indonesia’ in Albert H.Y. Chen and Andrew Harding (eds), Constitutional Courts in Asia (Cambridge University
Press. 2018) Lin, ‘An Inter-court Struggle for Judicial Supremacy’

10
for a long time socio-legal scholarship within the region has been highlighting legal and judicial
dynamics that are specific to the region, such as the prevalence of relationship-based legal
exchanges and customary notions of justice within courts and law enforcement agencies50, or
pressures exerted on judges by political and private actors in major cases51 – a phenomenon
that in the region is not just limited to less-developed, authoritarian, and semi-authoritarian
Asian states.52

To be sure, applying alternative historical-institutional and other neo-institutional perspectives

might address some of these concerns. Indeed, with the rapid expansion of legal education
within the region, the professionalization of the legal profession, and related reforms of the
court and legal system53, further empirical work on the transformation of the legal complex
should do much to build a better understanding of judicial behaviour in the region—particularly
if institutional factors are seen not simply as constraints on judges but also as helping constitute
their preferences.54 This is already apparent in the few studies of the pathways to prominence
and the socio-biographic backgrounds of judges55 and of the tensions building between
indigenous legal education and trajectories (e.g., the growing influence of Islamic law schools
and state-controlled legal curricula) and the influences exerted on legal practice through
training and ideas transferred from abroad.56

Clearly, much more foundational empirical work is needed to understand judicial behaviour in
the region. Very little is yet known about who these judges are in terms of background, training,
and personal relationships, or about how they are applying their new powers—where they
become active and to what effect. More generally, though, the history of socio-legal studies of

50
David M. Engel, Code and Custom in a Thai Provincial Court: The Interaction of Formal and Informal Systems
of Justice (University of Arizona Press 1978) David M. Engel and Jaruwan Engel, Tort, Custom, and Karma:
Globalization and Legal Consciousness in Thailand (Stanford University 2010) Sebastiaan Pompe, The
Indonesian Supreme Court: A Study of Institutional Collapse (Cornell University Press 2005) Cheesman Duncan
McCargo, Indicting Legalism: The Politics of Justice in Thailand (Cornell University Press forthcoming)
51
Ross Worthington, ‘Between Hermes and Themis: An Empirical Study of the Contemporary Judiciary in
Singapore’ 28 Journal of Law and Society 490
52
Simon Butt, ‘Indonesia's Constitutional Court: A Reform Over-Achiever?’ 87 Inside Indonesia 10
53
Stacey Steel and Katherine Taylor (eds), Legal Education in Asia: Globalization, Change Contexts (Routledge
2009)
54
Howard Gillman, ‘The Court as an Idea, Not a Building (or a Game): Interpretive Institutionalism and the
Analysis of Supreme Court Decision-Making’ in Cornell Clayton and Howard Gillman (eds), Supreme Court
Decision-Making: New Institutionalist Approaches (University of Chicago Press 1999)
55
Neal C. Tate, ‘The Social Background, Political Recruitment, and Decision-Making of the Philippine Supreme
Court Justices, 1901-1968’ (Unpublished Ph.D. Dissertation, Tulane University 1970)
56
Ran Hirschl, ‘Constitutional Courts as Bulwarks of Secularism’ in Diana Kapiszewski, Gordon Silverstein and
Robert A. Kagan (eds), Consequential Court (Cambridge University Press 2013)

11
the region not only raises questions about core assumptions of Western models of judicial
behaviour, it also suggests alternative perspectives that are more sensitive to the social, cultural,
and other less formal influences on judicial behaviour—recognize the reality that in Asia
boundaries between law and politics are often fluid and may sometimes even dissolve totally.

Where to? Rethinking Current Scholarship

The Asian context has much to offer for today’s debates about the politics of judicial review.
To date most empirical studies there have simply applied theories and models that have
emerged elsewhere. Fortunately, the problems that have arisen in applying these models to the
region, and the Global South generally, have also opened up new avenues for research.57

One stream of scholarship that is not only highly relevant to the region but is also partly
informed by it is the recent emphasis on the informal dimension of judicial politics, and more
specifically the relational nature of judicial behaviour.58 Drawing on diverse studies from the
Global South, this scholarship embraces the fact that in many non-Western societies, formal
and informal practices are closely interwoven and day-to-day personal interactions are
institutional realities. Judges cannot insulate themselves from informal norms of friendship,
clientelism, corruption, and patrimonialism, even though those norms may compete with—or
even displace—formal institutions and rules. Thus, dynamic patterns of personal interactions,
relations, and primordial ties, on and off the bench, can be critical to how judges behave and
perform, and an understanding of extensive judicial networks may capture how such informal
dynamics might influence a variety of outcomes, among them judicial appointments, actual
independence, court reforms, and judicial decisions.59

A concern with formal institutional roles alone is simply not sufficient to explain judicial
dynamics in these settings. That may be why some recent studies from outside the region have
employed a direct network perspective to illustrate how the way ideas are diffused within
judicial institutions can have far-reaching consequences for institutional reform and

57
Björn Dressel, Raul Sanchez Urribarri and Alexander Stroh, ‘Courts and Informal Networks: Towards a
Relational Perspective on Judicial Politics beyond Western Democracies’ International Political Science Review
58
Björn Dressel, Raul Sanchez Urribarri and Alexander Stroh, ‘The Informal Dimension of Judicial Politics: A
Relational Perspective’ 13 Annual Review of Law and Social Science 413
59
Ibid.

12
jurisprudence60; and others have shown how patronage networks have influenced judicial
appointments to a variety of courts over long periods.61 Empirical studies have also highlighted
how informal networks can be mobilized in support of court independence, for instance through
creating alliances with civil society.62 In Asia, empirical studies have traced the influence of
corruption networks in China’s courts63, and measured how university networks and
presidential loyalties have affected the voting patterns of Philippines Supreme Court justices
in high-profile cases.64 Scholars are also drawn attention, though so far principally from a more
conceptual and explorative perspective, to the emergence in the region of networks of judges
themselves.65

Drawing attention to the informal nature of judicial politics seems particularly suitable in this
region. For instance, in Southeast Asia persistent patterns of clientelism and patronage66 have
long been recognized, and studies of courts there have increasingly drawn attention to deep-
rooted cultures of corruption67, political pressures, influences on court decisions and judicial
appointments68, and the exercise of political connections when courts have become
politicized.69 And while East Asian courts seem generally to be more institutionalized and law-
bound, and thus less prone to collapse of the boundaries between law and politics, there is still
considerable anectodal evidence that judges there are not fully insulated from political
influences in appointments or pressures in high-profile casees.70

60
Matthew C. Ingram, ‘Networked Justice: Judges, The Diffusion of Ideas, and Legal Reform Movements in
Mexico ’ 48 Journal of Latin American Studies 739 Matthew C. Ingram, Crafting Courts in New Democracies:
The Politics of Subnational Judicial Reform in Brazil and Mexico (Cambridge University Press 2016a)
61
Andrea Pozas-Loyo and Julio Rios-Figuero, ‘Anatomy of an Informal Institution: The 'Gentlemen's Pact' and
Judicial Selection in Mexico, 1917-1994’ 39 International Political Science Review
62
Alexei Trochev and Rachel Ellett, ‘Judges and their Allies’ 2 Journal of Law and Courts 67
63
Ling Li, ‘Moral economy of corruption - Guanxi networks in China’s courts’ 39 International Political Science
Review
64
Björn Dressel and Tomoo Inoue, ‘Informal Networks and Judicial Decisions: Insights from the Philippines
Supreme Court, 1986-2015’ 39 International Political Science Review
65
Maartje De Visser, ‘We All Stand Together: The Role of the Association of Asian Constitutional Courts and
Equivalent Institutions in Promoting Constitutionalism’ 3 Asian Journal of Law and Society 105
66
James C. Scott, ‘Patron-Client Politics and Political Change in Southeast Asia’ 66 The Americal Political
Science Review 91
67
Pompe Howard Dick and Timothy Lindsey, Corruption in Asia. Rethinking the Governance Paradigm (The
Federation Press 2002)
68
Yvonne T. Chua and others, ‘Political Economy Analysis of Judicial Appointments in the Philippines’ VERA
Files Khoo Boo Teik, ‘Between Law and Politics: The Malaysian Judiciary since Independence’ in Kanishka
Jayasuriya (ed), Law, Capitalism and Power in Asia (Routledge 1999)
69
Khemthong Tonsakulrungruang, ‘Thailand: An Abuse of Judicial Review ’ in Po Jen Yap (ed), Judicial Review of
Elections in Asia (Routledge 2016) Dressel and Tonsakulrungruang
70
Tom Ginsburg and Gombosure Ganzorig, ‘When Courts and Politics Collide: Mongolia's Constitutional Crisis’
14 Columbia Journal of Asian Law

13
 An informal, relational approach to judicial politics not only resonates with regional dynamics
but also allows for a unique perspectives on the three central scholarly concerns about judicial
review raised here, invites nuanced research into how ideational networks have come to
influence the establishment of judicial review; how judicial networks shape the values of courts
in the region and the way judges understand their role; and, perhaps most challenging, how
relationships on and off the bench may influence the opinions of individual judges.

Conclusion

This chapter has surveyed empirical approaches to the politics of judicial review in Asia.
Highlighting three central questions that have animated the small but growing field of relevant
empirical studies, it has illustrated the considerable challenges the region poses for studies of
judicial review there, while at the same time mapping exciting new avenues for future research.
This dynamic region has much to offer in terms of testing current models and generating
political theories of judicial review related to the understudied Global South; it is likely to
shape the field of judicial politics in decades to come.

C. Hahm, ‘Beyond "law vs. politics" in constitutional adjudication: lessons from South Korea’ 10 International
Journal of Constitutional Law 6

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