Asian judiciaries and emergency powers: reasons for optimism?

doi:10.1017/CBO9780511770630.018

17 - Asian judiciaries and emergency powers: reasons for optimism?

from PART IV - The role of the courts

Published online by Cambridge University Press: 04 August 2010

Arun K. Thiruvengadam

Edited by

Victor V. Ramraj and

Arun K. Thiruvengadam

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Victor V. Ramraj: Affiliation:
National University of Singapore
Arun K. Thiruvengadam: Affiliation:
National University of Singapore

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Summary

Introduction

This chapter addresses the issue of the institutional checks on the invocation and use of emergency powers, by focusing on the role of judiciaries. Historically, judiciaries across the world have performed poorly when it comes to safeguarding the rights of individuals in times of emergency. This has led, over time, to the axiom that in times of emergency, judges cannot – and should not – reasonably be expected to act as the guardians of the constitution. Throughout this chapter, I will refer to this as the ‘conventional view’ of the role of courts during times of emergency.

The conventional view has witnessed a shift in the post-9/11 era. In recent years, courts in a number of jurisdictions have resorted to a variety of innovative strategies that are designed to curb executive power against the backdrop of the ongoing ‘war on terror’. At the time of writing, such decisions which have thwarted the traditional deference accorded to executive governments by courts have almost invariably emanated from jurisdictions within ‘the West’. My primary purpose in this chapter is to analyse whether a similar shift is likely to be occasioned by judiciaries in Asia.

Asia has been described as the ‘home of illiberal democracy’ and an area which is ‘perhaps the most difficult regional context for establishing the rule of law’.

Type: Chapter
Information: Emergency Powers in Asia
Exploring the Limits of Legality
, pp. 466 - 494

DOI: https://doi.org/10.1017/CBO9780511770630.018 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2009

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References

Alexander, G., ‘The Illusory Protection of Human Rights by National Courts During Periods of Emergency’ (1984) 5 Human Rights Law Journal1Google Scholar

Gross, O. and Aoláin, F. Ní, ‘From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights’ (2001) 23 Human Rights Quarterly625CrossRef Google Scholar

Ginsburg, T., Judicial Review in New Democracies (Cambridge: Cambridge University Press, 2003), p. 11CrossRef Google Scholar

Bell, D., Brown, D., Jayasuriya, K. and Jones, D. M. (eds.), Towards Illiberal Democracy in Pacific Asia (New York: St Martin's Press, 1995), p. 10CrossRef

Rossiter, C., The Supreme Court and the Commander-in-Chief, expanded edn (Ithaca: Cornell University Press, 1976), p. 52Google Scholar

Gross, O., ‘Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?’ (2003) 112 Yale Law Journal1011 at 1034CrossRef Google Scholar

Epstein, L.et al., ‘The Supreme Court During Crisis: How War Affects Only Non-War Cases’ (2005) 80 New York University Law Review1Google Scholar

Benvenisti, E., ‘United We Stand: National Courts Reviewing Counterterrorism Measures’, in Bianchi, A. and Keller, A. (eds.), Counterterrorism: Democracy's Challenge (Oxford: Hart Publishing, 2008), pp. 251–76Google Scholar

Ramraj, V. V., Hor, M. and Roach, K. (eds.), Global Anti-Terrorism Law and Policy (Cambridge: Cambridge University Press, 2005)CrossRef

Lepsius, O., ‘Human Dignity and the Downing of an Aircraft: The German Federal Constitutional Court Strikes down a Prominent Anti-terrorism Provision in the New Air-Transport Security Act’ (1 September 2006) 7 German Law JournalGoogle Scholar

Young, R., ‘Germany: Shooting Down an Airplane and Analyzing Computer Data’ (2008) 6 International Journal of Constitutional Law331CrossRef Google Scholar

Iyer, V., States of Emergency: The Indian Experience (New Delhi: Butterworths, 2000)Google Scholar

Jinks, D. P., ‘The Anatomy of an Institutionalised Emergency: Preventive Detention and Personal Liberty in India’ (2001) 22 Michigan Journal of International Law311Google Scholar

Subramanium, G., ‘Emergency Provisions under the Indian Constitution’, in Kirpal, B. N.et al. (eds.), Supreme But Not Infallible (New Delhi: Oxford University Press: 2000)Google Scholar

Kalhan, A., Conroy, Gerald, Kaushal, Mamata, Miller, Sam Scott and Rakoff, Jed S., ‘Colonial Continuities: Human Rights, Terrorism, and Security Laws in India’, (2006) 20 Columbia Journal of Asian Law93Google Scholar

Hussain, N., The Jurisprudence of Emergency (Ann Arbor: University of Michigan Press, 2003)CrossRef Google Scholar

Dyzenhaus, D., The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006), p. 27CrossRef Google Scholar

Harding, A., ‘New Asian Constitutionalism: Myth or Reality’ (2006) 14 International Islamic University Law Journal153Google Scholar

Austin, G., The Indian Constitution: Cornerstone of a Nation (Oxford: Oxford University Press, 1966)Google Scholar

Iyer, V., ‘The Supreme Court of India’, in Dickson, B. (ed.), Judicial Activism in Common Law Supreme Courts (Oxford: Oxford University Press, 2007), pp. 121–68CrossRef Google Scholar

Yoon, Dae-Kyu, ‘The Constitutional Court System of Korea: The New Road of Constitutional Adjudication’, (2001) 1 Journal of Korean Law1Google Scholar

Lee, Youngjae, ‘Law, Politics, and Impeachment: The Impeachment of Roh Moo-hyun from a Comparative Constitutional Perspective, (2005) 53 American Journal of Comparative Law403CrossRef Google Scholar

Sweet, A. S., The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (New York: Oxford University Press, 1992)Google Scholar

Moustafa, T., The Struggle for Constitutional Power: Law, Politics and Economic Development in Egypt (New York: Cambridge University Press, 2007)CrossRef Google Scholar

Cole, D., ‘Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis’ (2003) 101 Michigan Law Review2565 at 2566CrossRef Google Scholar

Balasubramaniam, R., ‘Indefinite Detention: Rule by Law or Rule of Law?’, in Ramraj, V. V. (ed.), Emergencies and the Limits of Legality (Cambridge: Cambridge University Press, 2008), pp. 118–41CrossRef Google Scholar

Issacharoff, S. and Pildes, R., ‘Emergency Contexts without Emergency Powers: The United States’ Constitutional Approach to Rights during Wartime' (2004) 2 International Journal of Constitutional Law296 at 297CrossRef Google Scholar

Posner, R., Not a Suicide Pact: The Constitution in a Time of National Emergency (New York: Oxford University Press, 2006)Google Scholar

Vermuele, A. and Posner, E., Terror in the Balance: Security, Liberty and the Courts (New York: Oxford University Press, 2007)Google Scholar

Kavanaugh, A., ‘Deference or Defiance? The Limits of the Judicial Role in Constitutional Adjudication’, in Huscroft, G. (ed.), Expounding the Constitution: Essays in Constitutional Theory (Cambridge: Cambridge University Press, 2008), pp. 184–218, at pp. 207–12CrossRef Google Scholar

Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (Oxford: Clarendon Press, 1991)

Austin, G., Working a Democratic Constitution: The Indian Experience (New Delhi: Oxford University Press, 2000), pp. 334–43Google Scholar

Bhushan, S., Courting Destiny: A Memoir (New Delhi: Penguin, 2008), pp. 143–5Google Scholar