The emergence of east asian constitutionalism: Features in comparison

American Journal of Comparative Law

Volumn 59, Issue 3, 2011, Pages 805-839

  Yeh, Jiunn Rong ^a   Chang, Wen Chen ^a  

^a NATIONAL TAIWAN UNIVERSITY   (Taiwan)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84864782361     PISSN: 0002919X     EISSN: None     Source Type: Journal    
DOI: 10.5131/AJCL.2010.0021     Document Type: Review

References (166)

1. For some descriptions of how democratic constitutionalism has swept the world, see generally SAMUEL P. HUNTINGTON, THE THIRD WAVE: DEMOCRATIZATION IN THE LATE TWENTIETH CENTURY (1991);
2. BRUCE ACKERMAN, THE FUTURE OF LIBERAL REVOLUTION (1992);
3. JUAN LINZ & ALFRED STEPAN, PROBLEMS OF DEMOCRATIC TRANSITION AND CONSOLIDATION: SOUTHERN EUROPE, SOUTH AMERICA, AND POST-COMMUNIST EUROPE (1996);
4. DEMOCRATIZATION IN CENTRAL AND EASTERN EUROPE (Mary Kaldor & Ivan Vejvoda eds., 2002);
5. IAN JEFFRIES, THE COUNTRIES OF THE FORMER SOVIET UNION AT THE TURN OF THE TWENTY-FIRST CENTURY (2004).
6. For the definition of constitutionalism, we adopt both procedural (institutional) and substantive aspects. See, E.g., Louis Henkin, A New Birth of Constitutionalism: Genetic Influence and Genetic Defects, in CONSTITUTIONALISM, IDENTITY, DIFFERENCE, AND LEGITIMACY: THEORETICAL PERSPECTIVES 39-53 (Michel Rosenfeld ed., 1994);
7. Nevil Johnson, Constitutionalism: Procedural Limits and Political Ends, in CONSTITUTIONAL POLICY AND CHANGE IN EUROPE 46-63 (Joachim Jens Hesse & Nevil Johnson eds.,1995).
8. We call this the rise of "transnational constitutionalism." Jiunn-Rong Yeh & Wen-Chen Chang, The Emergence of Transnational Constitutionalism: Its Features, Challenges and Solutions, 27 PENN STATE INT'L L. REV. 89 (2008).
9. See also VICKI C. JACKSON, CONSTITUTIONAL ENGAGEMENT IN A TRANSNATIONAL ERA (2010).
10. In the past, the implementation of treaties rests primarily with state parties by their own domestic legislation. Treaties do not necessarily create any central bodies with legislating powers or courts with adjudicating powers for treaty implementation. In recent decades, however, an increasing number of treaties create central bodies with legislating powers and give their legislation or secondary regulation a prime and direct effect on the domestic legal system of state parties. Courts are also created for such direct implementation purpose. Having a prime and direct effect on domestic legal systems of state parties, treaties have thus become more like constitutions. The European Union stands as a typical example of this constitutionalization process. Likewise, an ever closer African Union, formerly the Organization of African Unity, was launched in 1999, and a constitutive act was passed in 2001. Even North American states, Canada, the United States and Mexico, are sharing common regulatory powers in a constitutional sense as those regulations are given certain extents of prime and direct effects on the domestic legal systems of the state parties. For the constitutionalization process of Europe, see LARRY SIEDENTOP, DEMOCRACY IN EUROPE 215-31 (2001);
11. J.H.H. WEILER, THE CONSTITUTION OF EUROPE (1999);
12. DEMOCRACY IN THE EUROPEAN UNION: INTEGRATION THROUGH DELIBERATION? 256-69 (Erik Oddvar Eriksen & John Erik Fossum eds., 2000).
13. How NAFTA could be seen as a constitutional framework in the region, see David Schneiderman, Constitution or Model Treaty? Struggling over the Interpretive Authority of NAFTA, in THE MIGRATION OF CONSTITUTIONAL IDEAS 294 (Sujit Choudhry ed., 2006) (contending that there exists a constitutional mode for interpreting NAFTA).
14. Yasuo Hasebe, The Supreme Court of Japan: Its Adjudication on Electoral Systems and Economic Freedoms, 5 INT'L J. CONST. L. 296 (2007);
15. LAWRENCE W. BEER & HIROSHI ITOH, THE CONSTITUTIONAL CASE LAW OF JAPAN, 1970 THROUGH 1990 49-54 (1996).
16. Of 1,765 decisions that the Court rendered on the constitutionality of statutes or government actions, 588 were ruled unconstitutional (319), did not conform to the Constitution (118) or were deemed unconstitutional in certain contexts (51). See Case Statistics of the Constitutional Court of Korea, available at http://www.ccourt.go.kr/english/ (last visited Feb. 2, 2009).
17. For a more detailed discussion of these constitutional revisions, see Jiunn-Rong Yeh, Constitutional Reform and Democratization in Taiwan: 1945-2000, in TAIWAN'S MODERNIZATION IN GLOBAL PERSPECTIVE 47-77 (Peter Chow ed., 2002) (analyzing Taiwan's dynamics of constitutional change over the last fifty-five years in line with the national drive for modernization and political democratization).
18. Wen-Chen Chang, The Role of Judicial Review in Consolidating Democracy: The Case of Taiwan, 2 ASIA L. REV. 73 (2005).
19. See also TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES (2003).
20. See, E.g., VICKI C. JACKSON & MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW (1999) (discussing some of the Japanese constitutional designs and cases but not those of South Korea and Taiwan);
21. EDWARD MCWHINNEY, SUPREME COURTS AND JUDICIAL LAW-MAKING: CONSTITUTIONAL TRIBUNALS AND CONSTITUTIONAL REVIEW (1986);
22. FRANÇOIS VENTER, CONSTITUTIONAL COMPARISON: JAPAN, GERMANY, CANADA AND SOUTH AFRICA AS CONSTITUTIONAL CASES (2000).
23. See, e.g., William P. Alford, How Theory Does - And Does Not - Matter: American Approaches To Intellectual Property Law In East Asia, 13 UCLA PAC. BASIN L.J. 8 (1994);
24. John O. Haley, Competition Policy for East Asia, 3 WASH. U. GLOBAL STUD. L. REV. 277 (2004);
25. Chee Keong Low, A Road Map for Corporate Governance in East Asia, 25 Nw. J. INT'L L. & BUS. 165 (2004);
26. Junji Nakagawa, No More Negotiated Deals? Settlement of Trade and Investment Disputes In East Asia, 10 J. INT'L ECON. L. 837 (2007).
27. Transcript of an interview with Lee, see Fareed Zakaria, Culture Is Destiny: A Conversation with Lee Kuan Yew, 73 FOREIGN AFF. 109, 111 (1994).
28. Lee argues that the East places emphasis on a well-ordered society and only with such a society will everyone have maximum enjoyment of freedom. For a detailed review of the Asian Value Debate, see Karen Engle, Culture And Human Rights: The Asian Values Debate In Context, 32 N.Y.U. J. INT'L L. & POL. 291 (2000).
29. Three essential characteristics of Asian Values, see Scott L. Goodroad, The Challenge of Free Speech: Asian Values v. Unfettered Free Speech, An Analysis of Singapore and Malaysia in the Global Order, 9 IND. INT'L & COMP. L. REV. 259, 261 (1998).
30. See, e.g., Michael C. Davis, Constitutionalism and Political Culture: The Debate over Human Rights and Asian Values, 11 HARV. HUM. RTS. J. 109 (1998) (arguing that the cultural relativist theories of the academy are overly deterministic as they fail to appreciate the roles of both human agency and institutions); and Karen Engle argues that the so-called "culture" in east/south-east Asia is not a mere idea, but a vocabulary for contesting a certain type of hegemony. The concept of "Asian values" can be used both for and against human rights. See Id.
31. See, E.g., Victoria Tin-Bor Hui, Toward A Confucian Multicultural Approach to A Liberal World Order: Insights from Historical East Asia, 99 AM. SOC'Y INT'L L. PROC. 413 (2005) (stating that Confucianism contains liberal elements for both interstate and state/society relations);
32. Tom Ginsburg, Confucian Constitutionalism? The Emergence of Constitutional Review in Korea and Taiwan, 27 LAW & Soc. INQUIRY 763 (2002) (suggesting that the institution of judicial review has some compatibilities with Confucian legal tradition).
33. See, e.g., Setsuo Miyazawa, The Politics of Judicial Reform in Japan: The Rule of Law At Last?, (2) ASIAN-PAC. L. & POL'Y J. 89 (2001) (discussing the most recent changes in Japan's political environment that could radically alter the judicial system and legal profession);
34. Paul Lansing & Tamra Domeyer, Japan's Attempt at Internationalization and Its Lack of Sensitivity to Minority Issues, 22 CAL. W. INT'L L.J. 135 (1991) (suggesting that when Japan is attempting to contribute to the development of the international community, its practice of discrimination is being challenged);
35. Lawrence W. Beer, Peace in Theory and Practice Under Article 9 of Japan's Constitution, 81 MARQ. L. REV. 815 (1998) (explaining why Japan became antimilitarist and how Article 9 has effected Japanese law, policy and national attitude);
36. Mark A. Chinen, Article 9 of the Constitution of Japan and the Use of Procedural and Substantive Heuristics for Consensus, 27 MICH. J. INT'L L. 55 (2005) (examining the recent constitutional revision debates).
37. See, e.g., Dae Kyu Kim, Constitutional Amendment in Korea, 16 KOREAN J. COMP. L. 1 (1988) (addressing the actual process of South Korean constitutional amendment);
38. Geoff Gentilucci, Truth-telling and Accountability in Democratizing Nation: The Cases Against Chile's Augusto Pinochet and South Korea's Chun Doo-Hwan and Roh Tae-Woo, 5 CONN. PUB. INT. L. J. 79 (2005) (demonstrating that a trial devoid of truth-telling is inadequate for instituting a transitional justice regime);
39. Kyu Ho Youm, Freedom of Expression and the Law: Rights and Responsibilities in South Korea, 38 STAN. J. INT'LL. 123, 123-51 (2002) (arguing that Koreans not only enjoy freedom of expression, but that a measure of responsibility comes with this right);
40. Rosa Kim, The Legacy of Institutionalized Gender Inequality in South Korea: The Family Law, 14 B. C. THIRD WORLD L. J. 145 (1994) (focusing on the evolving Korean family law and its inherent gender inequality);
41. Richard Dicker, South Korea Labor Rights Violations under Democratic Rule, 14 UCLA PAC. BASIN L. J. 196, 196-236 (1996) (focusing on labor rights violations in the Republic of Korea from May 1994 through November 1995);
42. Laura Watson, Labor Relations and the Law in South Korea, 7 PAC. RIM L. & POL'Y J. 229 (199).
43. See, e.g., Piero Tozzi, Constitutional Reform in Taiwan: Fulfilling a Chinese Notion of Democratic Sovereignty, 64 FORDHAM L. REV. 1193 (1995) (examining the democratization and constitutional reform in Taiwan in light of the Chinese political tradition);
44. David Sho-Chao Hung, Abortion Rights in the United States and Taiwan, 4 CHI.-KENT J. INT'L & COMP. L. 1 (2004) (comparing the abortion laws in the United States and Taiwan);
45. Shin-Yi Peng, Privacy and the Construction of Legal Meaning in Taiwan, 37 INT'L LAW. 1037 (2003) (attempting to construct a theoretical framework for understanding the social and legal meaning of privacy in modern Chinese society).
46. The closest attempt may have been an earlier effort of putting many constitutional systems of Asia together into a book by Lawrence Beer. See LAWRENCE BEER, CONSTITUTIONAL SYSTEMS IN LATE TWENTIETH CENTURY ASIA (1991).
47. Michael C. Davis, Human Rights, Political Values, and Development in East Asia, in HUMAN RIGHTS: NEW PERSPECTIVES, NEW REALITIES 144-47 (Adamantia Pollis & Peter Schwab eds., 2000).
48. DOMINIC KELLY, JAPAN AND THE RECONSTRUCTION OF EAST ASIA 89-105 (2002).
49. Chung-in Moon & Song-Min Kim, Democracy and Economic Performance in South Korea, in CONSOLIDATING DEMOCRACY IN SOUTH KOREA 139-50 (Larry Diamond & Byung-Koon eds., 2000);
50. JOHN KIE-CHIANG OH, KOREAN POLITICS: THE QUEST FOR DEMOCRATIZATION AND ECONOMIC DEVELOPMENT 48-73 (1999).
51. Jong H. Park, The East Asian Model of Economic Development and Developing Countries 18(4) J. OF DEVELOPING SOCIETIES 330 (2002).
52. The reasons that the two major opposition parties, the Democratic Socialist Party and the Communist Party, have not had much success may stem from electoral patterns as well as organizational skills. See STEPHEN JOHNSON, OPPOSITION POLITICS IN JAPAN: STRATEGIES UNDER A ONE-PARTY DOMINANT REGIME 175-80 (2000).
53. See infra notes 68-71 and accompanying text. See also Tom Ginsburg et al., (Roundtable) Judicial Review in New Democracies: Constitutional Courts in Asian Cases, 3(2) NTU L. REV. 144, 158-69 (2008).
54. The same standard introduced by Juan J. Linz & Alfred Stepan to evaluate consolidated democracies, see JUAN J. LINZ & ALFRED STEPAN, PROBLEMS OF DEMOCRATIC TRANSITION AND CONSOLIDATION 8-9, 14 (1996).
55. Configurations of political parties in South Korea are dynamic and fast changing in accordance with political needs. For instance, ex-President Roh Tae Woo changed the party's name from Democratic Justice Party to Democratic Liberal Party when he sought collaboration with the opposition leader, Kim Young Sam. Kim Dae Jung, in an attempt to compete with Kim Young Sam, changed his party to New National Party and later changed it again to New Millennium Democratic Party. Roh Moo Hyun, President between 2003 and 2008, also changed his party from New Millennium Democratic Party to Open Uri Party. See also Jong-Sup Chong, Political Power and Constitutionalism, in RECENT TRANSFORMATION IN KOREA LAW AND SOCIETY 11-32 (Dae-Kyu Yoon ed., 2000).
56. For Japan, See generally FRANK UPHAM, LAW AND SOCIAL CHANGE IN POSTWAR JAPAN (1987);
57. Iokibe Makoto, Japan's Civil Society: An Historical Overview, in DECIDING THE PUBLIC GOOD: GOVERNANCE AND CIVIL SOCIETY IN JAPAN 51-96 (Yamamoto Tadashi ed., 1999);
58. Yamamoto Tadashi, Emergence of Japan's Civil Society and Its Future Challenges, in DECIDING THE PUBLIC GOOD: GOVERNANCE AND CIVIL SOCIETY IN JAPAN Id.
59. For South Korea, see Kyoung-Ryung Seong, Civil Society and Democratic Consolidation in South Korea: Great Achievements and Remaining Problems, in CONSOLIDATING DEMOCRACY IN SOUTH KOREA, supra note 22, at 87-110;
60. Sunhyuk Kim, Civil Society in Democratizing Korea, in KOREA'S DEMOCRATIZATION 81-106 (Samuel S. Kim ed., 2003).
61. See generally RAISING THE BAR: THE EMERGING LEGAL PROFESSION IN EAST ASIA (William P. Alford ed., 2007).
62. Jane Kaufman Winn, The Role of Lawyers in Taiwan's Emerging Democracy, in RAISING THE BAR: THE EMERGING LEGAL PROFESSION IN EAST ASIA 356-82, supra.
63. Koh Byong-ik, Confucianism in Contemporary Korea, in CONFUCIAN TRADITIONS IN EAST ASIAN MODERNITY: MODERN EDUCATION AND ECONOMIC CULTURE IN JAPAN AND THE FOUR MINI-DRAGONS 191-201 (Wei-Ming Tu ed., 1996);
64. Kwang Kyu Lee, Confucian Tradition in Contemporary Korea Family, in CONFUCIANISM AND THE FAMILY 249-66 (Walter H. Slote & George A. DeVos eds., 1998).
65. Arland Thornton & Thomas E. Fricke, Social Change and Family: Comparative Perspectives from the West, China and South Asia, 2(4) SOCIO. FORUM 746 (1987).
66. Takie Sugiyama Lebra, Confucian Gender Role and Personal Fulfillment for Japanese Women, in CONFUCIANISM AND THE FAMILY, supra note 36, at 208-30;
67. Haejoang Cho, Male Dominance and Mother Power: The Two Sides of Confucian Patriarchy in Korea, in CONFUCIANISM AND THE FAMILY, supra note 36, at 187-208;
68. Chin-Chin Yi & Bernhard Nauck, Gender, Marriage and Family Support in East Asian Families, 54(2) CURRENT SOCIOLOGY 155 (2006);
69. Ronald R. Rindfus, Minja Kim Choe, Larry L. Bumpass & Noriko O. Tsuya, Social Networks and Family Change in Japan, AM. SOC. REV. 838 (2004);
70. Shunichi Inoue, Family Formation in Japan, South Korea, and the United States: An Overview, in THE CHANGING FAMILY IN COMPARATIVE PERSPECTIVE: ASIA AND THE UNITED STATES 19-42 (Karen Oppenheim Mason, Noriko O. Tsuya & Minja Kim Choe eds., 1998).
71. BENJAMIN REILY, DEMOCRACY AND DIVERSITY: POLITICAL ENGINEERING IN THE ASIA-PACIFIC 37, 57-58 (2006).
72. Among the three, Taiwan has the largest number of indigenous groups. Currently, fourteen tribes are officially recognized and they constitute about two percent of the population. Some special protections of indigenous rights have been recognized in tie constitutional amendments and the legislation. A special committee, Council of Indigenous Peoples, Executive Yuan, was established in 1996 to ensure the implementation of those rights. While the situation of indigenous peoples has been improved, employment discrimination persists in the private market. Further information regarding the fourteen indigenous tribes and their cultures and languages is available at http://www.apc.gov.tw/main/pdex-en.jsp (last visited May 30, 2010).
73. and RICHARD SIDDLE, 'RACE,' RESISTANCE AND THE AINU OF JAPAN 70 (1996).
74. Cheng-yi Lin & Wen-Cheng Lin, Democracy, Divided National Identity and Taiwan's National Security 1(2) TAIWAN J. DEMOCRACY 69 (2005).
75. See, e.g., David C. Kang, Regional Politics and Democratic Consolidation in Korea, in KOREA'S DEMOCRATIZATION, supra note 33, at 161-80;
76. Chung-Si Ahn, Transformation of South Korea Politics and Prospects for Democratic Consolidation, in POLITICS AND ECONOMY OF REGIME TRANSFORMATIONS 23, 23-40 (Chung-Si Ahn & Chon-Pyo Lee eds., 1999).
77. Yusaku Horiuchi & Seungjoo Lee, The Presidency, Regionalism, and Distributive Politics in South Korea, 41(6) COMP. P. STUD. 861 (2008).
78. For the text in English, see http://english.ccourt.go.kr/ (last visited Nov. 28, 2008).
79. Henkin, supra note 2; Johnson, supra note 2. See also BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991).
80. CURTIS MILHAUPT ET AL., THE JAPANESE LEGAL SYSTEM (2007).
81. While constitutions may secure freedoms and rights of individuals against the state, they may also limit individual rights and freedoms to prevent popular uprisings or tyranny. The postwar German Constitution may be a good example. See, e.g., DONALD KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY (2d ed. 1997).
82. In addition, recent scholarship has argued that constitution-making may provide stepping stones for nation-building or identity construction. See, e.g., MICHEL ROSENFELD, THE IDENTITY OF THE CONSTITUTIONAL SUBJECT: SELFHOOD, CITIZENSHIP, CULTURE, AND COMMUNITY (2009).
83. RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM (2007).
84. Sec, E.g., LAWRENCE W. BEER & JOHN M. MAKI, FROM IMPERIAL MYTH TO DEMOCRACY: JAPAN'S TWO CONSTITUTIONS, 1889-2002, 7-21 (2002) (describing the making of the Mejji Constitution as part of the project of building a modern industrial nation-state);
85. Marie Seong-Hak Kim, Customary Law and Colonial Jurisprudence in Korea, 57 AM. J. COMP. L. 205 (2009) (stating that its Western legal system, including the constitution, was introduced to Korea with the specific aim of modernization);
86. Herbert H.P. Ma, The Chinese Concept of the Individual and the Reception of Foreign Law, 9 J. CHINESE L. 207, 214 (1995) (stating that constitution-making was undertaken as part of modernization in China in the late nineteenth/twentieth century).
87. The English text of the Meiji Constitution, in Hirobumi Ito, Commentaries on the Constitution of the Empire of Japan, trans. Miyoji Ito (Tokyo: Igirisu-horitsu gakko, 22nd year of Meiji, 1889), Hanover Historical Texts Project, Scanned by Jonathan Dresner, Harvard University, at http://history.hanover.edu/texts/1889con.html (last visited Nov. 1, 2008).
88. Wen-Chen Chang, East Asian Foundations for Constitutionalism: Three Models Reconstructed, 3(2) NTU L. REV. 111, 116-19 (2008).
89. For other discussions on Japanese constitution-making, see Katsutoshi Takami, From Divine Legitimacy to the Myth of Consensus: The Emperor System and Popular Sovereignty, in FIVE DECADES OF CONSTITUTIONALISM IN JAPANESE SOCIETY 9, 12-17 (Yoichi Higuchi ed., 2001).
90. See also KOSEKI SHOICHI, THE BIRTH OF JAPAN'S POSTWAR CONSTITUTION (Ray A. Moore ed. & trans., 1997);
91. THEODORE MCNELLY, THE ORIGINS OF JAPAN'S DEMOCRATIC CONSTITUTION 98-100 (2000).
92. Article 9 of the Japanese Constitution. For its text in English, see http://servat.unibe.ch/icl/ja-indx.html (last visited Jan. 15, 2009).
93. SHOICHI, supra note 53. See also Yoichi Higuchi, The Paradox of Constitutional Revision in Postwar Japan, in FIVE DECADES OF CONSTITUTIONALISM IN JAPANESE SOCIETY, supra note 53, at 351-55.
94. Id. See also Kyong Whan Ahn, The Influence of American Constitutionalism on South Korea, 22 S. ILL. U. L.J. 71, 72 (1997);
95. Howard S. Levie, How It All Started-and How It Ended: A Legal Study of the Korean War, 35 AKRON L. REV. 205, 206 (2002) (quoting the Cairo Declaration and the General Order by the U.S. Secretary of War, in the United States and Korean Problem, S. Doc. No. 83-74).
96. Chang, supra note 53, at 121-24. See also Tay-Sheng Wang, The Legal Development of Taiwan in the 20th Century: Toward a Liberal and Democratic Country, 11(3) PAC. RIM L. & POL'Y J. 531, 542 (2002) (examining the legal modernization in Taiwan during the past century).
97. ACKERMAN, supra note 48. Note that Ackerman later revised his view to a certain extent, see Bruce Ackerman, Revolution on a Human Scale, 108 YALE L. J. 2279 (1999).
98. For a contrasting view, See András Sajó, Constitution without the Constitutional Moment: A View from the New Member States, 3 INT'L J CONST L. 243 (2005).
99. The detailed discussion of the 1982 electoral method can be seen in a Japanese Supreme Court case where the relevant laws were challenged. See Case to seek nullification of an election, 2003 (Gyo-Tsu) No. 15, Jan. 14, 2004. For its text in English, see http://www.courte.go.jp/english/judgments/textf2004.01. 14-2003-Gyo-Tsu-No..15.html (last visited Jan. 15, 2009).
100. This legal change was also litigated in the Court, See Case to seek invalidity of election, 1999 (Gyo-Tsu) No.8, November 10, 1999. For its text in English, See http://www.courts.gojp/english/judgments/text/1999.11.10-1999-Gyo- Tsu-No.8.html (last visited Jan. 15, 2009).
101. OECD, JAPAN: PROGRESS IN IMPLEMENTING REGULATORY REFORM (2004);
102. EIJI KAWABATA, CONTEMPORARY GOVERNMENT REFORM IN JAPAN: THE DUAL STATE IN FLUX (2006) (detailing government reforms, particularly postal reforms in the 1990s).
103. Some may argue the recent reform has failed, See, e.g., AURELIA G. MULGAN, JAPAN'S FAILED REVOLUTION: KOIZUMI AND THE POLITICS OF ECONOMIC REFORM (2002).
104. See Jiunn-Rong Yeh & Wen-Chen Chang, Path Dependency or Collective Institutional Choice? Modeling Constitutional Changes in the Context of Democratic Transitions, 45 WENTI YU YANJIU 1 (2006) (explaining Taiwan's particular incremental pattern of constitutional changes) (in Chinese with English abstract)
105. The transformation of the Control Yuan and its shifted role in the constitutional regime inevitably involved constitutional clarification by the Constitutional Court. See J. Y. Interpretation No. 325 (1993/07/23).
106. For the text in English, see http://www.judicial.gov.tw/ CONSTITUTIONALCOURT/EN/p03.asp.
107. Herman Schwartz, The New East European Constitutional Courts, in CONSTITUTION MAKING IN EASTERN EUROPE 163-207 (A.E. Dick Howard ed., 1993);
108. Robert F. Utter & David C. Lundsgaard, Judicial Review in the New Nations of Central and Eastern Europe: Some Thoughts from a Comparative Perspective, 54 OHIO ST. L.J. 559 (1993);
109. Brice Dickson, Protecting Human Rights through a Constitutional Court: The Case of South Africa, 66 FORDHAM L. REV. 531 (1997).
110. See, E.g., ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (2d ed. 1986);
111. JOHN ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980).
112. However, some of the recent scholarly works have countered such characterization by showing the ways in which the decisions of the U.S. Supreme Court actually followed the majority's opinions in tune with social and political circumstances. See, e.g., BARRY FRIEDMAN, THE WILL OF THE PEOPLE: How PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009).
113. Others may argue that even if courts issued "counter- majoritarian" decisions to steer social change, these decisions rarely had such impact. See, e.g., GERALD ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (2d ed. 2008). "Counter-majoritarian" or not, the characteristics we compare here are helpful in understanding the alternative way that courts in East Asia are more inclined to take.
114. There is certainly more than one definition of judicial activism." If judicial activism denotes a court striking down a democratically enacted statute, both Constitutional Courts of South Korea and Taiwan in striking down past legislation and government actions under color of authoritarian control cannot be said to really exhibit 'judicial activism." See, E.g., Christopher Peters, Adjudication as Representation, 97 COLUM. L. REV. 312, 434 (1997).
115. "Judicial activism" may also indicate courts ignoring precedent, judicially-made law, result-oriented judging or the display of judicial preferences. See also Prank H. Easterbrook, Do Liberals and Conservatives Differ in Judicial Activism?, 73 U. COLO. L REV. 1401 (2002);
116. Keenan D. Kmiec, The Origin and Current Meanings of Judicial Activism," 92 CALIF. L. REV. 1441 (2004).
117. Case on Election Invalidity, 1994 (Gyo-Tsu) No. 59, Sept. 11, 1996.
118. For the text in English, see http://www.courts.go.jp/english/judgments (last visited Nov. 28, 2008).
119. The 1999 decision concerned the constitutionality of dual candidacy and the proportional representation system in the election of members of the House of Representatives. There was, however, one issue regarding the discrepancy of electoral districts, but since such demarcation related only to elections based on district but not proportional representation, the Court did not address the issue further. See Case to seek invalidity of election, 1999(Gyo-Tsu) No.8, 1999.11.10. For the text in English, see http://www.courts.go.jp/english/ judgments (last visited Nov. 28, 2008).
120. The 2004 decision was concerned with the constitutionality of the open-list proportional representation system for the election of members of the House of Councilors. The Court decided that the choice of an open-list system was solely within the discretion of the Diet's power. See Case to seek nullification of an election, 2003 (Gyo-Tsu) No. 15, 2004.01.14. For the text in English, see http://www.courts.go.jp/english/judgments (last visited Nov. 28, 2008).
121. Case to seek declaration of illegality concerning the deprivation of the right to vote for Japanese citizens residing abroad, 2001 (Gyo-Tsu) No. 82, 2001 (Gyo-Hi) No. 76, 2001. For the text in English, see http://www.courts.go.jp/ english/judgments/text/2005.09.14-2001.-Gyo-Tsu-.No..82%2C.2001.-Gyo-Hi-.No.. 76%2C.2001.-Gyo-Tsu-.No..83%2C.2001.-Gyo-Hi-.No..77.html (last visited Nov. 28, 2008).
122. Case on nationality of a child born out of wedlock to a Japanese father and a Filipino mother, 2006 (Gyo-Tau) No. 135, 2008.06.04. For the text in English, see http://www.courts.go.jp/english/judgments/text/2008.06.04-2006.- Gyo-Tsu-.No..135-111255.html (last visited Jan. 15, 2008).
123. For the text in English, see http://english.ccourt.go.kr/ (last visited Nov. 28, 2008);
124. For the text in English, see http://english.ccourt.go.kr/ (last visited Nov. 28, 2008).
125. December 12 Incident Non-institution of Prosecution Case, (7-1 KCCR 15, 94Hun-Ma246, January 20, 1995), in THE FIRST TEN YEARS OF KOREAN CONSTITUTIONAL COURT (The Constitutional Court of Korea ed., 2001);
126. May 18 Incident Non-institution of Prosecution Decision Case, (7-2 KCCR 697, 95 Hun-Ma221, etc., December 15, 1995), in THE FIRST TEN YEARS OF KOREAN CONSTITUTIONAL COURT, supra;
127. The Special Act on the May Democratization Movement, etc. case (8-1 KCCR 51, 96Hun-Ka2, etc., February 16, 1996), in THE FIRST TEN YEARS OF KOREAN CONSTITUTIONAL COURT, supra.
128. For the text in English, see http://english.ccourt.go.kr/ (last visited Nov. 28, 2008).
129. In 1991, the Hungarian Constitutional Court struck down a statute that attempted to prosecute crimes beyond statutory limitation, contrary to the rule of law. For more discussion, see TRANSITIONAL JUSTICE: How EMERGING DEMOCRACIES RECKON WITH FORMER REGIMES (VOL. II: COUNTRY STUDIES) 645-92, 652-53 (Neil J. Kritz ed., 1995).
130. For the text in English, see http://english.ccourt.go.kr/ (last visited Nov. 28, 2008).
131. Id. See also Youngjae Lee, Law, Politics, and Impeachment: The Impeachment of Roh Moo-Hyun from a Comparative Constitutional Perspective, 53 AM. J. COMP. L. 403 (2005).
132. At the time, there were three main political parties in the parliament, neither of which occupied the majority seats. They included the Uri Party, a newly formed political party by President Roh, the Millennium Democratic Party, the original party of President Roh, and the Grand National Party. See Kie-Duck Park, Political Parties and Democratic Consolidation in Korea, 2 (1) TAIWAN DEMOCRACY QUARTERLY 23, 33-39 (2005).
133. The support for President Roh increased twenty percent after the impeachment motion, from thirty percent to fifty percent. See Samuel Len, President's Impeachment Stirs Angry Protests in South Korea, N.Y. TIMES, Mar. 13, 2004, at A2.
134. James Brooke, South Korea's Impeached President Gains Support in Vote, N.Y. TIMES, Apr. 16, 2004, at A6.
135. For the text in English, see http://english.ccourt.go.kr/ (last visited Nov. 28, 2008);
136. For the text in English, see http://english.ccourt.go.kr/ (last visited Nov. 28, 2008).
137. For the text in English, see http://english.ccourt.go.kr/ (last visited Nov. 28, 2008).
138. Jonghyun Park, The Judicialization of Politics in Korea, 10 ASIAN-PAC. L. & POL'Y J. 62 (2008).
139. For the text in English, see http:/www.judicial.gov.tw/ constitutionalcourt/en/p03-01.asp?expno=328.
140. For the text in English, see http://www.judicial.gov.tw/ CONSTITUTIONALCOURT/EN/p03.asp.
141. For the text in English, see http://www.judicial.gov.tw/ CONSTITUTIONALCOURT/EN/p03.asp.
142. For the text in English, see http://www.judicial.gov.tw/ CONSTITUTIONALCOURT/EN/p03.asp.
143. For the text in English, see http://www.judicial.gov.tw/ CONSTITUTIONALCOURT/EN/p03.asp.
144. For the text in English, see http://www.judidd.gov.tw/CONSTITIONALCOURT/ EN/p03.asp.
145. For the text in English, see http://www.judicial.gov.tw/ CONSTITUTIONALCOURT/EN/p03.asp.
146. For news discussion of the decision, see http://www.gio.gov.tw/taiwan- website/4-oa/20050906/2005090601.html.
147. See, e.g., Louis HENKIN, THE AGE OF RIGHTS (1990);
148. CHARLES L. BLACK, A NEW BIRTH OF FREEDOM: HUMAN RIGHTS NAMED AND UNNAMED (1997).
149. A global alliance of third-world countries often insists that human needs and the protection of economic and social rights are preconditions for constitutional democracies. They criticize Western democracies for unreasonably emphasizing civil and political rights over social and economic rights, and expect non-Western democracies, particularly those in Asia, to adhere. See STEINER ET AL., INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS & MORALS 261-79, 295-312 (3d ed. 2008).
150. See, e.g., Jiunn-Rong Yeh, Changing Forces of Constitutional and Regulatory Reform in Taiwan, 4 J. CHINESE L. 83, 83-100 (1990);
151. For relevant discussions and comparisons between Europe and the United States, see Dieter Grimm, The Protective Function of the State, in EUROPEAN AND US CONSTITUTIONALISM 137-55 (Georg Nolte ed., 2005);
152. Frank Michelman, The Protective Function of the State in the United States and Europe: The Constitutional Question, in id. 156-80.
153. ANDRAS SAJÓ, LIMITING GOVERNMENT: AN INTRODUCTION TO CONSTITUTIONALISM 1-29 (1999) (illustrating that the fear of destabilisation may motivate the development of constitutionalism);
154. Ulrich Preuss, The Exercise of Constituent Power in Central and Eastern Europe, in THE PARADOX OF CONSTITUTIONALISM: CONSTITUENT POWER AND CONSTITUTIONAL FORM 211-28 (2007);
155. Ulrich K. Preuss, The Politics of Constitution Making: Transforming Politics into Constitutions, 13 LAW & POL'Y 107 (1991).
156. See also Jiunn-Rong Yeh & Wen-Chen Chang, The Changing Landscape of Modern Constitutionalism: Transitional Perspective, 4 (1) NTU L REV 145 (2009).
157. See also Ruti Teitel, Transitional Jurisprudence: The Role of Law in Political Transformation, 106 YALE L. J. 2009 (1997) (arguing a transitional perspective in constitutionalism);
158. Jonathan D. Varat, Reflections on the Establishment of Constitutional Government in Eastern Europe, 9 CONST. COMMENT. 171 (1992);
159. Arthur J, Jacobson, Transitional Constitutions, in CONSTITUTIONALISM, IDENTITY, DIFFERENCE, AND LEGITIMACY: THEORETICAL PERSPECTIVE, supra note 2, at 413-22.
160. See also JAN S. PRYBYLA, PRIVATIZING AND MARKETIZING SOCIALISM (1990);
161. ANDERS ASLUND, HOW CAPITALISM WAS BUILT: THE TRANSFORMATION OF CENTRAL AND EASTERN EUROPE, RUSSIA, AND CENTRAL ASIA (2007).
162. For a similar discussion regarding South Africa, see Cass R. Sunstein, Social and Economic Rights? Lessons from South Africa, University of Chicago, Public Law Working Paper No. 12, available at http://papers.ssrn.com/sol3/ papers.cfm?abstract-id=269657.
163. For the discussion of economic development and the role of state and legal systems, See, e.g., Tom Ginsburg, Does Law Matter for Economic Development? Evidence from East Asia, 34 L. & Soc. REV. 829 (2000);
164. Tom Ginsburg, Dismantling the Developmental State? Administrative Procedure Reform in Japan and Korea, 49 AM. J. COM. L. 585 (2001);
165. DAVID TRUBEK & ALVARO SANTOS, THE NEW LAW AND ECONOMIC DEVELOPMENT: A CRITICAL APPRAISAL (2006).
166. The openness and autonomy of media in the three democracies in East Asia have often been used as the benchmark for media in other parts of Asia. See, e.g., Benjamin L. Liebman, Watchdog or Demagogue? The Media in the Chinese Legal System, 105 COLUM. L. REV. 1 (2005).