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.
In the 21st century, elected authoritarians excel at capturing the poorly cabined intralegal powers of the state to consolidate power and to increase dependence of an expanding gyre of the population on direct connections to the beneficence of the incumbent regime. The challenge to the courts is much more likely to be structural not individual and concerned with governance not rights. This paper will develop a methodology of judicial democratic intervention using three key judicial mandates as guideposts. The three are the Basic Structures doctrine from India, the Certification Decision from South Africa, and the Colombian denial of a third term to President Uribe. Taken together these decisions preserve the permanent need for accountability to independent sources of power such as the judiciary, structural protections against excessive entrenchment of majoritarian power, and the preservation of political competition against the lock up of state authority by the power of incumbency.
Independent judges seldom challenged, and often supported, the injustices of apartheid. South Africans have long attributed this to judicial positivism or formalism, a belief tracing back to a 1972 article by John Dugard. Dugard’s article was brave politically but flawed factually, not least in accepting positivism as an explanation for judicial behavior under National Socialism when Germans had long rejected this argument. Clearing things up matters partly because Dugard’s argument affects South African legal culture to this day. But in addition, the confidence in the German parallel, together with other chauvinisms, has prevented South Africans from looking to other examples, including strong parallels to the judiciaries of the (semi-)authoritarian states of Latin America. Does the shared interest in transformative constitutionalism today have its roots in shared past experiences of judicial complicity in evil?
I examine authoritarian regimes in relation to the political power configuration that is central to how autocracy is practised within their systems. First, Dominant Party Democracies have been ruled by the same dominant political party since the nation’s independence. Although there are regular and free elections, the hyper-incumbent ruling party can reconfigure electoral rules to stave off the opposition. Next, in Independent Military Democracies, the military is an independent branch of government, leading to oscillation between martial and civilian rule; even after civilian rule returns, the military retains a veto defending its core interests. Finally, in Communist Regimes, elections are a sham, and all levers of state power are subjected to the singular control of the Communist Party. These three regime types are not exhaustive of all authoritarian regimes, but they are the predominant ones in Asia. I explore the constitutional role of the courts in these three regime types.