Growing constitutions: Judicial review in the new democracies (Korea, Taiwan, China, Mongolia)

Constitutional review by courts or court-like bodies has expanded in recent decades beyond its original homeland in the United States to every comer of the globe and has become entrenched in the architecture of modern democracy. Most scholarship on judicial review focuses on the tension between majoritarian democracy and review by unelected judges. This study examines the development of judicial power in three new democracies in Northeast Asia and argues that the growth of judicial review reflects and supports, rather than hinders, democratization.; The study argues that the decision to adopt a system of judicial review is in part a response to the problem of electoral uncertainty among constitutional designers. Where constitutional designers are confident in their ability to control future political outcomes by winning elections, they have little incentive to establish powerful courts with the ability to invalidate legislation. In contrast, where constitutional designers believe they are likely to be in a minority position, they will provide for judicial constraints on majorities. Courts become an alternative foram for those who lose in the political process. Judicial review enhances the likelihood losers will remain in the constitutional system and bolsters legitimacy.; The actual exercise of judicial power in new democracies depends on (1) the design of the constitutional founders; (2) the decisions of courts themselves; and (3) the willingness of politicians to comply with those decisions. Judicial power is likely to be greater where the political party system is diffused, and weaker where it is concentrated.; The three constitutional courts selected for case studies are those in Korea, Taiwan, and Mongolia, three countries where the rule of law has historically been weak. The case studies analyze the recent history of judicial review in each country, with special attention to the relationship between constitutional courts and other actors in the political system. In all three countries, courts are playing an increasingly active role and contributing to political liberalization. The study concludes that, of the three courts, the Korean Constitutional Court has been both the most daring and the most successful in providing a stable environment for political liberalization.