Comparative Constitutional Law in Asia

Comparative Constitutional Law in Asia

Edited by Rosalind Dixon and Tom Ginsburg

Comparative constitutional law is a field of increasing importance around the world, but much of the literature is focused on Europe, North America, and English-speaking jurisdictions. The importance of Asia for the broader field is demonstrated here in original contributions that look thematically at issues from a general perspective, with special attention on how they have been treated in East Asian jurisdictions.

Chapter 3: Constitutional courts in East Asia

Tom Ginsburg

Subjects: asian studies, asian law, law - academic, asian law, comparative law, constitutional and administrative law


After decades of authoritarian rule, East Asia has experienced a wave of democratization since the mid-1980s. Transitions toward more open political structures have been effectuated in South Korea, Taiwan, Thailand, Mongolia, Myanmar and Indonesia, and even the Leninist states of China and Vietnam have experienced tentative moves toward more participatory politics (Balme and Sidel 2007). These political transitions have been accompanied by an important but understudied phenomenon: the emergence of powerful constitutional courts in the region. In at least three countries, Indonesia, South Korea and Mongolia, constitutional courts created during the democratic transition have emerged as real constraints on political authority. In Taiwan, the Council of Grand Justices reawakened after years of relative quiet to play an important role in Taiwan's long political transition to democracy. In other countries, such as Thailand and Myanmar, courts found themselves in the middle of significant political conflicts, and had less success. Given the cultural and political history of the region, this is a phenomenon that might be seen as surprising. After all, most political systems in the region were until the 1980s dominated by powerful executives without effective judicial constraint. The political systems of non-Communist Asia involved varying degrees of "authoritarian pluralism," wherein a certain degree of political openness was allowed to the extent it did not challenge authoritarian rule (Scalapino 1997: 150). Thus there was little precedent for active courts protecting rights or interfering with state action.

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