Po Jen Yap on Dialogic Judicial Review and First World Autocracies (new book chapter)

"Dialogic Judicial Review and First World Autocracies"
Po Jen Yap
in Madhav Khosla (ed),Vicki C Jackson (ed),Redefining Comparative Constitutional Law: Essays for Mark Tushnet (Oxford University Press),Chapter 19,pp.274 - 292
Published online: November 2024

Abstract: Dialogic or weak-form review is the only viable and effective path for courts operating in First World autocracies. The judicial use of strong-form review to address problems posed by sedition laws and restrictions on the franchise—as Mark Tushnet suggests—would be counterproductive as this would only be to the detriment of the courts. At the same time, I argue that dialogic review is not judicial abdication. I will also show how weak-form review has enhanced rights protection in Singapore and Hong Kong, and has imposed soft but meaningful controls on state power in these autocracies. Precisely because these autocracies want to remain First World, the perceived independence of the courts must be preserved for their governments to retain talent and continued investments in the economy. Governments in First World autocracies are sensitive to global businesses’ perception of the regime’s commitment to the rule of law as that directly impacts the entity’s economic future. This is unlike military dictatorships and banana republics, where the rent-seeking behavior of autocrats is driven primarily by the self-interest of its cabal. Therefore, in First World autocracies, so long as the courts respect the regime’s plenary agenda-setting powers, the government will in turn acquiesce to the judiciary’s calibrated show of force to preserve rights.