Why aren’t Southeast Asian courts like Pakistan’s?

Here’s an interesting article in the Economist about Pakistan’s Supreme Court. The court essentially seems to be trying to oust President Zardari by compelling him to return his corrupt gains. Pakistan has been run by military juntas or incompetent civilians. Until recently, many had dismissed the judiciary as a force for liberal politics. And yet… I’ve written elsewhere about how Pakistani courts have used Indian courts as a model for public interest litigation. The Supreme Court now seems inspired from its victory over General Musharraf to take on the country’s political elites directly.

What I find fascinating for the purposes of this blog is the comparison. Aside from the Philippines, relatively few courts in Southeast Asia have taken such an active role in political life. Certainly, the courts in the authoritarian regimes like Burma and Cambodia have not aggressively challenged political elites. Even in the quasi-democracies, such as Malaysia, the courts have treaded carefully. I find this last case the most interesting because, like Pakistan, Malaysia inherited its legal system from British common law – precisely the legal system most often associated with more powerful courts.[1] The aftermath of the High Court’s “Allah” decision illustrates the limits of the Malaysian judiciary tragically enough.

The closest case comes from Thailand. Thailand’s Constitutional Court was originally part of the progressive 1997 Constitution, but conservative elites have since co-opted it to combat populism. In 2007, the military launched a coup to overthrow populist Prime Minister Thaksin Shinawatra. While in power, the military gave the Constitutional Court extensive powers to police political parties and appointed sympathetic justices. When a reincarnation of Thaksin’s political party, the PPP, won 233 out of 480 seats in the subsequent elections, the court aggressively heard cases suggesting its candidates had violated constitutional requirements. In September 2008, the court forced Prime Minister Samak Sundaravej to resign because he was the host of a cooking program while serving in office. These decisions eventually forced the PPP out of power and installed the more amenable Democrat Party in power. [For a good overview of constitutional developments in Thailand, see Tom Ginsburg’s recent article].

I think one interesting court to follow will be Indonesia’s Mahkamah Konstitusi. The court is independent enough to strike down laws under the controversial Article 33 of the constitution. It hasn’t struck at politicians directly (except for deciding election disputes, which constitutes a large portion of its docket). The court might be well poised to fill part of the vacuum given  SBY’s diminished political standing. Even so, I doubt it will reach the excesses of Pakistan’s Supreme Court.

[1] Of course, there is considerable debate on this point, but I believe there is some credence to it. I recommend Martin Shapiro’s Courts for an overview of the differences between common and civil law courts.

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