The Politics of Judicial Review

Abstract

Constitutional review has expanded in Asia over the last two decades, yet observers find the uneven performance of courts there in high-profile constitutional cases puzzling, to the point that the theoretical reach of current models of judicial behavior to Asian settings is being questioned. Starting with a critical review of previous scholarship on constitutional review in the region before turning attention to scholarly contributions that highlight how both law and politics work to determine judicial roles, this chapter argues that a concern with formal institutional roles alone is not sufficient to explain how courts deal with constitutional matters in countries where the law is not as institutionalized as in Western democracies. Instead redirecting attention to how judges regularly mediate, or straddle, the demands imposed by law, politics, and day-to-day relationships, this chapter suggests a contextually grounded informal-relational perspective to advance our understanding of constitutional review and judicial politics in Asia.