Constitutional amendment is a common method by which political branches bring about constitutional change. Some of these amendments however may critically transform the existing constitutional arrangement to serve what Landau and Dixon have called “abusive” constitutional aims. This paper examines recent judicial engagements with constitutional amendments in Singapore and Malaysia. In particular, it highlights the employment of the judicially created basic structure doctrine as a way to defend certain fundamental features of the constitutional order against political overreach. The discussion is contextualized within Malaysia and Singapore's evolving political conditions and serves to highlight the potential as well as limits of judicial review as a way to uphold extant constitutional values.
Over the last 15 years the Malaysian monarchies (constituting about a fifth of all extant monarchies globally) have re-established themselves not only reputationally but also as important elements in the Malaysian political system. This paper looks at what has been dubbed 'Nazrinian' monarchy and its Johor variant, 'The Order', and their impact on acute political issues such as discrimination, religion and government formation. The explanation is found, partly at least, in the absence of effective corrective mechanisms elsewhere in the political system.
The Singapore judiciary is not known for actively or robustly pushing the national constitutional discourse in a way that can be observed in highest courts in other matured jurisdictions. That is however not to say that the Constitution leads a dormant existence: on the contrary, its role and the meaning of its provisions are very much in the political and public domain, and increasingly so in recent years. This paper examines how non-judicial actors in Singapore formulate, push for and engage with each other's interpretation of constitutional requirements. In addition, it queries the underlying considerations and incentives that may shape their decision to speak out – or refrain from doing so. The Singapore experience shows how the nature of the political settlement, combined with other extra-legal dynamics, determine whether and how legally created opportunities for constitutional guardianship are, or fail to be, exercised.
Indonesia's Constitutional Court is considered as one of Asia's most activist courts. In this paper we investigate empirically the determinants of judicial behaviour at the Constitutional Court of Indonesia in the period 2003-2017. The paper draws on a unique data set of 80 high profile political cases complemented by data on the socio-biographic profiles of judges on the bench. We start off by describing patterns in judicial decision making across time and court benches, before seeking to test more specifically for the impact of the judges' professional background, presidential terms, Chief Justice influence and appointment tracks. We discuss these empirical results in the context of Indonesia's evolving constitutional democracy and the implications for the comparative judicial politics literature on judicial behaviour.