Patterns and Cultures of Intra-Asian Judicial Cooperation

Abstract

Scholars frequently distinguish between indirect and direct judicial dialogues. While most attention has been devoted to the first type (i.e. the practice of cross-referencing foreign decisions), these can only yield a partial understanding of the degree to which courts and their individual members identify themselves as part of particular cross-border epistemic judicial community. Additional and clearer insights into such self-identification can be obtained by examining why judges choose to meet colleagues from certain jurisdictions, the setting in which such encounters take place and the kind of issues that are debated. The relevance of an inquiry into direct dialogues and related epistemic politics in Asia is arguably even greater than in Europe or Africa, where pan-regional organisations exist that provide both an obvious imperative for judges to pursue transnational interaction and natural focus as far as the constitutional doctrines for debate are concerned. This chapter accordingly traces leading patterns in direct judicial dialogues in Asia and analyses the underlying cultures of regional judicial cooperation. It shows that while some judiciaries, notably the Korean Constitutional Court, have embraced a strategy of proselytising constitutionalism and rights-based thinking, many others prefer dialogues geared towards constitutional infrastructure issues. The existing culture of intra-regional judicial ties in Asia further exhibits clear tendencies of judicial self-interest and instrumentalism, while appearing to be less infused with the ideas of comity and parity that scholars often like to associate with direct judicial contact in horizontal settings. This is facilitated by the existence of a developmental gap among the countries in the region, with judiciaries from first-world states that have well-developed legal infrastructures and ample resources interacting with courts from third-world nations. Patterns of judicial cooperation are unlikely to remain static, however, and two developments should be highlighted here. First, the growing emphasis placed on training and education with a transnational flavour by judicial associations or foreign outreach programs by mature Asian constitutional courts. If executed well, such initiatives can help level the playing field among Asian courts. Second, while legal tradition has traditionally been a significant factor for Asian courts in deciding which epistemic community to align themselves with, geographic proximity is very much on the ascent as an identity marker. Taken together, these factors suggest that the future of judicial cooperation in Asia will progressively exhibit stronger intra-regional characteristics.