Thursday, April 21, 2016

New Book by PJ Yap: Judicial Review of Elections in Asia (Routledge)

Judicial Review of Elections in Asia
Editor: Po Jen Yap
April 2016, Routledge, 238 pp
Description: In the past century, Asian nations have experienced a wave of democratisation as countries in the region have gained independence or transitioned from authoritarian military rule towards more participatory politics. At the same time, there has been an expansion of judicial power in Asia, whereby new courts or empowered old ones emerge as independent constraints on governmental authority.
     This is the first book to assess the judicial review of elections in Asia. It provides important insights into how Asian courts can strategically engage with the political actors in their jurisdictions and contribute to a country’s democratic discourse. Each chapter in the book sheds light on the judicial review of elections and the electoral process in a specific Asian jurisdiction, including Common Law Asia, namely Hong Kong, India, Malaysia, and Singapore, as well as jurisdictions in Civil Law Asia, namely Indonesia, Japan, the Republic of Korea, Taiwan, and Thailand. It fills a gap in the literature by addressing a central challenge to democratic governance, namely the problem of partisan self-dealing in the electoral processes.
     By exploring the constantly evolving role of the courts in addressing pivotal constitutional questions, this book will be of interest to students and scholars of Asian Law, Governance and Politics.

"Courts and Elections in Asia"
In the past century, as the winds of political change swept across the globe, Asian nations too experienced a wave of democratisation as countries in the region gained independence or transitioned from authoritarian military rule towards more participatory politics. In tandem with this democratisation trend, we may also witness a concomitant expansion of judicial power in Asia, whereby new courts or empowered old ones emerge as independent constraints on governmental authority. The rise of the courts, and the accompanying ‘judicialisation of politics’, is as much an Asian phenomenon, as it is a prevalent trend in the West. 
     There is now a rich corpus of literature on how Asian courts have participated in and even reshaped the human rights discourse in their respective jurisdictions. However, little academic literature has examined how Asian courts have responded to deficiencies in the electoral processes and the concomitant problem of partisan self-dealing. Specifically, partisan self-dealing occurs when the political actors devise electoral rules that govern voting, political parties, electoral boundaries, apportionment, the administration of elections, and campaign finance that are designed to entrench themselves in power. The purpose of this book is to redress this gap in the scholarship by exploring how courts in Asia have addressed this central challenge to democratic governance. 
     The chapters in this volume stemmed from a symposium held at the University of Hong Kong in July 2015. Each of the ten chapters profiled in Part I and Part II of this book sheds light on the judicial review of elections and the elect- oral process in a specific Asian jurisdiction. Part I examines the common law jurisdictions of Hong Kong, India, Malaysia, Pakistan, and Singapore.  Part II explores the civil law jurisdictions of Indonesia, Japan, South Korea, Taiwan, and Thailand. To allow readers to draw insights from judicial practices in non- Asian jurisdictions, Part III includes, as a comparative foil, a brief account of the state of play in Australia, Canada, and South Africa...

The judicial review of elections in Hong Kong is a relatively recent phenomenon. It occurs in a unique milieu of entrenched political rights and political institutions that are on an evolving course to becoming fully democratic. In this milieu, a contradiction has become apparent; while Hong Kong courts are prepared to strike down unreasonable restrictions on voting and candidacy, sometimes with significant consequences, they have done very little to impact the most unfair and illegitimate aspects of Hong Kong’s electoral systems. These aspects include the functional constituencies that have returned at least half of all legislators since 1985, the 1200 member election committee that nominates and elects the chief executive, and the practice of corporate voting used in both the election committee and functional constituency elections. 
     From a critical examination of the relevant judicial review case law, this chapter explains how the contradiction came about and what sustains it. It then reflects on how the contradiction might be resolved going forwards, particularly after the 2015 failed attempt to introduce universal suffrage of the chief executive. Two opposite paths of resolution are discussed. One sees courts applying political rights even more robustly to chip away at those illegitimate aspects mentioned above. The other sees courts becoming even more deferential, declining judicial review of electoral laws on the ground that they are matters best left for political negotiations and legislative review. The chapter notes that the impact of the political reform exercise of 2013 to 2015, which was over-shadowed by a more assertive role played by the Chinese central government, may influence a more deferential approach in the future. However, arguments are made for why courts should resist taking such a path...

"Judicial review of the electoral process in Singapore after Vellama"
Vellama d/o Marie Muthu v. Attorney General remains the first and the only occasion where the Singapore judiciary had the opportunity to review a challenge to the local electoral process. Specifically, the Singapore Court of Appeal held that the Prime Minister had a constitutional duty under Article 492 of the Constitution to call for a by-election when a casual vacancy arose. But, on the facts, the Court of Appeal also held that the applicant, a resident voter of the Hougang Single Member Constituency (SMC), had no standing to seek declaratory relief from the courts after a by-election to fill the vacancy at Hougang SMC had been carried out, and she thus incurred no ‘special damage’ after that to seek judicial relief. 
     The facts and the procedural history of the case may be briefly stated. Following the vacancy of the Parliamentary Hougang SMC on 14 February 2012, a resident voter of the said SMC instituted judicial review proceedings for a mandatory order requiring the Prime Minister to advise the President to issue a writ of election for Hougang SMC and a declaration on the proper construction on Article 49 of the Constitution. On 2 March 2012, the Prime Minister announced that he intended to call for a by-election in Hougang SMC but had not decided on a time. On 3 April 2012, the High Court granted the applicant leave for a judicial review hearing. The by-election was subsequently held on 26 May 2012. The High Court dismissed the applicant’s case on 1 August 2012 and the Court of Appeal dismissed her appeal on 5 July 2013. 
     In this chapter, I shall examine three core issues relating to the judicial review of the electoral process in Singapore that was raised in Vellama: (1) the locus standi of the Applicant; (2) the constitutional duty of Prime Minster to call for a by-election when a vacancy arose; and (3) the determination of cost orders for such public interest litigations...

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