Constitutional courts and supreme courts of final appellate jurisdiction are unique institutions. As the principal courts in the legal hierarchy of the state, they represent the apex of the law, the fundamental institution that addresses and resolves the most important legal disputes, and thus the body entrusted with responsibility for supervising the legal contours of the regime. But to the extent that they exercise judicial review, overturning executive and legislative initiatives for inconsistency with the constitution, they are also inevitably political institutions whose decisions affect the character of the regime. This twofold aspect of the highest courts, and the extent to which their judgments favour one over the other, has been a concern of political and legal scholars.1 The phrase ‘judicialisation of politics’ seeks to capture their increasingly political role and therefore the potentially undemocratic exercise of their authority, while ‘politicisation of the judiciary’ suggests political usurpation of the legal authority of the court in ways that undermine its expertise, independence, and judgment. As these phrases suggest, students of judicial politics are fundamentally concerned with questions about democratic and liberal constitutionalism and the extent to which the judiciary may be said to strengthen or limit democratic accountability. Consequently, the study of judicial politics is inevit­ ably an examination of its legitimacy, specifically within the context of the unique constitutionalism of each state and more generally within the theoretical conceptions that comprehend and frame the judicial role. Because of the historical origins of liberal and democratic constitutionalism and the theoretical reflections that have shaped constitutional changes, it is perhaps inevitable that scholarship has focused predominantly on Western jurisprudence and constitutionalism. The far­ reaching influence of the American constitution as the first modern experiment in self­ government has obviously shaped much of the research on judicial politics.2 Through their colonial influences, Westminster ‘responsible’ government and European conceptions of the rule of law have also had an important role in directing this scholarship. Consequently, when the focus has shifted to Asia, these conceptions of constitutionalism (and implicitly judicial politics) have informed models for constitutional reform and thus have become the basis for comparative evaluations by students seeking to understand judicial politics in the region (see, for example, Ginsberg 2003;

Ginsberg and Moustafa 2008; and Peerenboom 2004; Ginsburg and Chen 2009; Harding and Nicholson 2010). The question of whether courts are usurping powers that properly belong to the political domain (‘judicial activism’), which is the prevailing concern of Western students of judicial politics, is therefore inevitably asked as well about the judiciary in Asia. The usefulness of this question is evident from the complex and subtle assessments of judicial politics revealed in the essays in this book. In this survey of judicial politics in 10 Asian countries, students of Western judicial politics will see many familiar aspects of constitutionalism, which confirm the importance, perhaps even the primacy, of the legal and constitutional over the cultural, historical, ethnic, and religious. Yet these chapters are instructive not only because they confirm what we already know; they also reveal crucial differences that warrant closer scrutiny. The examination of judicial politics in Asia in this book therefore yields significant insights not only into the nature of judicial politicsindeed politics generally-in each country analysed; these insights allow us to revisit questions and concerns that have always been present in the study of judicial politics and constitutionalism but have perhaps been overshadowed by the focus on judicial activism. In the concluding chapter to this book I draw upon the preceding essays to explore three aspects of judicial politics that warrant closer attention from students of judicial politics and comparative constitutionalism. The first aspect concerns the importance of judges taking leadership in shaping judicial politics. I do not intend to revisit the perennial-and not always helpful-‘structure vs. agency’ problem that concerns certain subdisciplines of the social sciences. My point is more modest: the cases in this book reveal that in some instances who judges are and the unique decisions they take influence the shaping of both judicial institutions and constitutionalism. The second theme I take up concerns the law itself. Students of judicial politics and constitutionalism have to some extent forgotten that the judiciary is a legal institution. It must therefore act, to a greater or lesser degree and depending on its constitutional and political mandate, like a legal institution. Our notion of an ‘activist’ court comes predominantly from our preconceptions about what is properly ‘legal’ and therefore what constitutes ‘improper’ activism when a judge or a court steps beyond the strictures we perceive to be legal. My third theme, which in one sense comprehends the first two, is the question of legitimacy. The legitimacy of the judiciary is, I contend, fundamentally different from the legitimacy of other institutions, precisely because it has both legal and political dimensions. This creates a complex and acutely difficult environment for judges and the courts, who have to negotiate between contending demands of legitimacy: to the people, to the law or constitution, to elected representatives, whether legislative or executive. How well they negotiate this fine balance is the core theme of my analysis. My focus on these three questions is not meant to suggest that they are the only three. No doubt other factors can be seen to be equally important-for example, the role in each country of religion, or traditions and history, in shaping

judicial politics (on the importance of historical and ideational factors see Hilbink 2008 and McCann 2009). It is simply that, in examining the fine­ grained studies in this book, these three aspects of judicial politics stand out as worthy of further investigation, not only in Asia but also in the West.