ABSTRACT
Introduction Over the past 25 years, the role of courts in asserting the supremacy of constitutions while providing equitable justice as part of the expansion of the rule of law has become a central topic of debate in Southeast Asia. Consider the role of courts in Thailand’s continuing political turmoil, the high-profile religious and political cases in Malaysia, or the continuing struggles of courts in Burma and Cambodia to assert their independence from politics. These are struggles not only about notions of the rule of law but also about the extent to which the law has acquired primacy over politics – a critical aspect of current constitutional trajectories in Southeast Asia. Courts, particularly those charged with judicial review of constitutional issues, are critical to this process. With political governance playing an increasingly important role as part of the “judicialization of politics,” which Hirschl describes as “the ever-accelerating reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies” (2006: 721), the region’s courts have been at the center of contestation in disputes ranging from human rights protection to religious matters and broad public policy questions. They have therefore become critical to the extent to which the rule of law is conceptualized and applied fairly in Southeast Asia. Yet, like the institution of the judiciary itself, the trend of judicializing the constitutional and political arena and its consequences are not well understood. In fact, though well documented for the United States, Europe, and Latin America (see Tate and Vallinder 1995; Epp 1998; Feeley and Rubin 1998; Stone Sweet 2000; Shapiro and Stone Sweet 2002; Sieder et al. 2005b), the judicialization of politics in Asia, particularly Southeast Asia, has rarely been explored (though see, for tentative exploration, Ginsburg and Chen 2009; Harding and Nicholson 2010; Dressel 2012). This is perhaps not surprising. The region still battles legacies of executive dominance and an unusual degree of regime diversity that all have higher visibility than what happens within courts. In fact, almost 20 years ago, because so many regimes were neither democratic nor constitutional, a leading scholar claimed that “a majority of Southeast Asian countries are unlikely candidates for the judicialization of politics” (Tate 1994: 188).
