Judicial Review of Elections in Asia

251 Pages·2015·2.55 MB·English

by  Po Jen Yap (editor)

This book is very timely and provides a comparative take on judicial review in
relation to elections in nine Asian jurisdictions whose constitutional systems are
based on common law or civil law principles.
Po Jen Yap is highly qualified to undertake the task of bringing relevant
scholars together to discuss the relevant issues in a comparative frame of refer-
ence. He has done so superbly and this book is to be highly recommended.
Andrew Harding, Professor of Law & Director of Centre for Asian Legal
Studies, National University of Singapore
Professor Po Jen Yap has assembled a formidable group of legal thinkers from
Asia, joined them with their counterparts from Canada, Australia, and South
Africa, and produced a unique and provocative collection of essays on an under-
studied area of public law, the law governing the elections process. This collec-
tion of essays invites us to think afresh about the role of courts and, in some
instances, election commissions—and the legal and political constraints they
face—in supervising the integrity of the elections process. The collection
manages both to focus in on the nuances of particular jurisdictions and to pan out
for a wide-angle view across the political spectrum from the politically fragile to
the dominant-party to the vibrant, multi-party democracies of Asia.
Victor V. Ramraj, Professor of Law & Chair in Asia-Pacific
Legal Relations, University of Victoria, Canada
The paradox of democracy is that its flourishing depends on judicial institutions
that are insulated from politics. Yet until recently, there has been scant attention
to the role of courts in making Asian democracies work. This book fills that void,
offering fascinating perspectives from top-notch scholars on how courts have
intervened in Asian elections, sometimes constructively and sometimes disas-
trously. It is essential reading for anyone who cares about democracy and wants
to see it thrive, in Asia and across the globe.
Daniel Tokaji, Charles W. Ebersold and Florence Whitcomb Ebersold
Professor of Constitutional Law, The Ohio State University
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Judicial Review of Elections in Asia
In the past century, Asian nations have experienced a wave of democratisation
as countries in the region have gained independence or transitioned from author-
itarian military rule towards more participatory politics. At the same time, there
has been an expansion of judicial power in Asia, whereby new courts or empow-
ered old ones emerge as independent constraints on governmental authority.
This is the first book to assess the judicial review of elections in Asia. It pro-
vides important insights into how Asian courts can strategically engage with the
political actors in their jurisdictions and contribute to a country’s democratic dis-
course. 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 juris-
dictions 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 chal-
lenge 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.
Po Jen Yap is an Associate Professor at the Faculty of Law, University of Hong
Kong.
Routledge studies in Asian law
Asian Law in Disasters
Toward a human-c entered recovery
Edited by Yuka KANEKO, Katsumi MATSUOKA and Toshihisa TOYODA
Judicial Review of Elections in Asia
Edited by Po Jen Yap
Judicial Review of Elections
in Asia
Edited by Po Jen Yap
First published 2016
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2016 Po Jen Yap
The right of the editor to be identified as the author of the editorial matter,
and of the authors for their individual chapters, has been asserted in
accordance with sections 77 and 78 of the Copyright, Designs and Patents
Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in
any information storage or retrieval system, without permission in writing
from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and explanation
without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Names: Yap, Po Jen, editor.
Title: Judicial review of elections in Asia / Edited by Po Jen Yap.
Description: New York, NY : Routledge, 2016. | Includes bibliographical
references and index.
Identifiers: LCCN 2015044179| ISBN 9781138950283 (hardback) |
ISBN 9781315668567 (ebook)
Subjects: LCSH: Elections–Asia. | Election law–Asia. | Judicial review–
Asia.
Classification: LCC KNC585 .J83 2016 | DDC 342.5/07–dc23
LC record available at http://lccn.loc.gov/2015044179
ISBN: 978-1-138-95028-3 (hbk)
ISBN: 978-1-315-66856-7 (ebk)
Typeset in Times New Roman
by Wearset Ltd, Boldon, Tyne and Wear
Contents
List of tables ix
Notes on contributors x
1 Courts and elections in Asia 1
PO JEN YAP
PARt I
Common Law Asia 9
2 Judicial review of elections in Hong Kong: resolving a
contradiction 11
SIMON N.M. YOUNg
3 Democracy and elections in India: reviewing the role of the
Election Commission and the courts 38
SURYA DEvA
4 Judicial review of elections in Malaysia 57
KEvIN Y.L. TAN
5 ‘Election disputes’ or disputed elections? Judicial
(non-)review of the electoral process in Pakistan 69
MOEEN H. CHEEMA
6 Judicial review of the electoral process in Singapore after
Vellama 84
PO JEN YAP
viii Contents
PARt II
Civil Law Asia 93
7 the curious case of quasi- weak-form review: judicial review
of electoral process in Indonesia 95
STEFANUS HENDRIANTO
8 Election campaign regulation and the Supreme Court of
Japan 115
SHIgENORI MATSUI
9 the electoral process and the judicial review of elections in
the Republic of Korea 136
WOO- YOUNg RHEE
10 Judicial strategies to resolving presidential election disputes:
the case of taiwan 147
WEN- CHEN CHANg AND YI- LI LEE
11 thailand: an abuse of judicial review 173
KHEMTHONg TONSAKULRUNgRUANg
PARt III
Comparative perspectives 193
12 Courts, judicial review and the electoral process in
Australia: an Antipodean perspective 195
SARAH MURRAY
13 Judicial review of the electoral process in Canada 207
YASMIN DAWOOD
14 Regulation by charter: judicial review of elections in
South Africa 220
KAREEM CRAYTON
Index 231
tables
4.1 Malaysia 65
10.1 Candidates and turnout of five presidential elections since
1996 153
10.2 Information about lawsuits by a candidate against others 160
10.3 Information about lawsuits by relatives of the candidates
against the members of another presidential campaign 160
10.4 Information about lawsuits by relatives of the candidates
against others 161
10.5 Information about lawsuits by the members of a presidential
campaign against others 161
10.6 Information about lawsuits by others against others 162