The Impact of Constitutional Courts in Asia

Abstract

Courts around the world have become more and more influential, and Asian courts are no exception. The effects of Asian constitutional courts span all political, social, and economic areas and fall into five main categories: (1) consolidating democracies, (2) exacerbating political chaos, (3) perpetuating authoritarianism, (4) facilitating economic development, and (5) spurring social change. Politically, constitutional courts in many Asian countries have helped consolidate fledgling democracies by entrenching constitutional principles, by facilitating the disbandment of unconstitutional parties, by promoting a level political playing field, by permitting the impeachment of authoritarian heads of state, and by minimizing religious clashes. Judicial intervention, however, may spawn unwanted results when it fails to hammer out a solution that facilitates constitutional functioning. Worse still, judicial intervention may perpetuate authoritarian reign. Economically, an efficient and independent judiciary usually signals a government’s commitment to property protection, which is a foundation of economic development, including foreign investment. This principle, interestingly enough, applies to autocracies as well as to democracies. Socially, judicial decisions may either spearhead social change or plant the seeds of future progress. Indeed, decisions unfavorable to petitioners can trigger, in ordinary people, a profound awareness of rights, resulting in even more litigation. Notably, these five types of effects are not necessarily mutually exclusive and are, in some scenarios, complementary. For example, a capable court may simultaneously facilitate economic development and undergird dictatorships. Furthermore, these effects are a function of three interdependent factors: the scope of judicial powers, the degree of judicial activism, and the response of audiences. Other things being equal, the more powerful and active a court is, the more likely its decisions will be able to generate repercussions, thereby strengthening the judiciary. To be sure, other things are not always equal in reality, and these factors are endogenous to a considerable extent. Moreover, the effects of constitutional courts do not remain constant, as political environments in which they are embedded are volatile. Therefore, the relationships between the five judicial effects and the three interdependent factors are rather dynamic. Although constitutional courts in Asia have become much more influential in general since the 1990s, the growth in their judicial effects has not necessarily been a blessing. Sometimes when the decisions of Asian courts have crossed lines that politicians deem inviolable, the courts have encountered various degrees of political revenge. To navigate the storms of political retaliation provoked by controversial judicial decisions, many constitutional courts—particularly those in democratizing Asian states—must steer a middle path between obedience and recalcitrance.