What is the role of courts in evolving constitutional democracies in Asia? How can courts in dominant political party systems assert judicial power? In states with a history of consolidated political power, judicial deference or dialogue with the political branches can only go so far. I argue in support of an empowered role for courts in these contexts through judicial assertions of power. Courts can assert power by exercising judicial review to strike down legislation or by assuming a power to invalidate constitutional amendments. Courts can also manifest judicial power through strategic assertiveness, such as Marbury-style strategies in which courts lay the foundations for future political confrontations. The key feature these judicial approaches share is that they are aimed at strengthening, not restricting, judicial authority. I draw on two recent decisions issued by the Malaysian apex court as examples of strategic judicial empowerment.
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