Asian exceptionalism? Reflections on “Judicial Review in the Contemporary World”: Afterword to the Foreword by Doreen Lustig and J. H. H. Weiler

Abstract

This article provides a dialogue with the “three waves” development of judicial review as described by Lustig and Weiler in their Foreword article and examines whether these three waves are global in nature. As this article finds, the first two waves have been quite unsettling and contested in Asia. The first wave of judicial review, in which judges can rule against legislation on constitutional grounds, has seen variations in a few Asian jurisdictions. The second wave of judicial review, in which judges can rule against the exercise of all governmental powers on transnational normative grounds, has been confronted with strong resistance in Asia right from the very beginning. National struggles for identities and fierce competitions for voices in the global legal order have been challenging Asian states, and as a result, “politicization of higher values” on both domestic and transnational grounds may persist in Asia for the foreseeable future.