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Cheng-Yi Huang

Fears of abusive executive power are common in new democracies, but they do not guarantee the well-functioning of government after political transition. This chapter examines the relationship between judicial review, agency decision-making and legislative delegation through case-studies of three new democracies, i.e., Poland, South Africa, and Taiwan. In the first two decades, these courts developed a rights-oriented jurisprudence and Rechtstaat-like control of administrative action. However, they gradually realized stringent scrutiny of administrative decision could jeopardize the dynamics of political process which was much needed for state-building after democratization. Courts in these countries vigilantly carved out a model of judicial deference, highlighting the judicial function of information elicitation. However, in this past decade, with the resurgence of arbitrary executive power, the courts in Taiwan and South Africa have begun to rely on procedural fairness to constrain the administration. Procedural fairness is also a tool of the court to invite different sectors to sit down and talk to each other. It helps the court to garnish social trust. The turn to procedural justice in these new democracies means that these societies have fallen into fierce clashes and courts are assuming the role of trust-builders. The cases of Poland, Taiwan and South Africa, demonstrate how a self-restraining court may release the executive power from the anachronistic fears and reinvigorate the dynamic interaction among different political actors.