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 4: Judicial engagement

Cheryl Saunders

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

Extract

This chapter examines whether and how judges of courts in Asian jurisdictions engage with foreign and international sources of law in resolving constitutional cases. 'Engagement' is used in a neutral sense, to encompass any reference to transnational legal sources, whether positive, negative or bland (cf. Jackson 2010). It extends to consultation of transnational sources by courts, even where this is not reflected in their published reasons. Like the other chapters in this book, this one builds on earlier work, which examined the topic from a more global perspective (Saunders 2011). By adopting an exclusive focus on courts in the Asian region, the chapter seeks both to throw light on constitutional review in Asia and to deepen understanding of judicial engagement as a practice. In doing so, it has the potential also to identify any distinctive characteristics of judicial engagement in the Asian region and thus to provide insight into the utility of regions as a tool of analysis in comparative constitutional law. The earlier chapter took into account experience with judicial engagement in a small number of selected Asian jurisdictions: Japan, Taiwan and Singapore. The approach in this chapter is to determine the extent to which conclusions based on a global sample of jurisdictions are verified, qualified, elaborated or altered by an exclusively Asian focus. In one important respect, which itself is instructive, I depart from the parameters of the earlier study, by including judicial engagement with international, as well as foreign law.

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