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Judicial Strategies and the Political Question Doctrine: An Investigation into the Judicial Adjudications of the East Asian Courts

  • Jiunn-rong YehEmail author
Chapter
Part of the Economics, Law, and Institutions in Asia Pacific book series (ELIAP)

Abstract

Behind the rise of Asia lie divergent sociopolitical context and route of the transformation. Not surprisingly, many transformative Asian states confront politically charged issues in the constitutional actuality, many of those demand judicial resolution. Where and how the East Asian courts resort to the political question principle in handling these highly contentious issues is the aim of this chapter. This chapter investigates cases along the line in Taiwan, Japan, and the Philippines, based on a four-model analysis, namely, the “hot potato,” the “rubber stamp,” the “active legalism,” and the “social dialogue” models. It finds that the targeted East Asian courts mainly adopt the “hot potato” and the “rubber stamp” models. With political instability and confrontations, many Asian states confront legitimacy and capacity challenges, and the courts are often involved one way or the other. This article finds that Asian courts evaluate the legitimacy of mechanism and the political context in applying political question principle.

Keywords

East Asian courts Political question doctrine Judicial review Constitutionalism Political division 

References

  1. Chang W-C, Thio L-A, Tan KYL, Yeh J-r (2014) Constitutionalism in Asia: cases and materials. Hart Publishing, OxfordGoogle Scholar
  2. Claude RP (1978) Decline of human rights in the republic of the Philippines: a case study. NY L Sch L Rev 24:201–223Google Scholar
  3. Feliciano FP (1992) The application of law: some recurring aspects of the process of judicial review and decision making. Am J Juris 37(1):17–56CrossRefGoogle Scholar
  4. Gatmaytan-Magno D (2007) Changing constitutions: judicial review and redemption in the Philippines. UCLA Pac Basin L J 25(1):1–24Google Scholar
  5. Guevara S (ed) (1972) The laws of the first Philippine Republic. National Historical Commission, ManilaGoogle Scholar
  6. Itoh M (2003) The Hatoyama dynasty: Japanese political leadership through the generations. Palgrave Macmillan, New YorkCrossRefGoogle Scholar
  7. Majul CA (1967) The political and constitutional ideas of the Philippine revolution. Oriole Editions, New YorkGoogle Scholar
  8. Nadeau KM (2008) The history of the Philippines. Greenwood Press, WestportGoogle Scholar
  9. Nowak JE, Rotunda RD (1991) Constitutional law. West Academic Publishing, St. PaulGoogle Scholar
  10. Shapiro M (1981) Courts: a comparative and political analysis. University of Chicago Press, ChicagoGoogle Scholar
  11. Shigenori M (2010) The constitution of Japan: a contextual analysis. Hart Publishing, OxfordGoogle Scholar
  12. Yeh J-r (2015) Marching towards civil constitutionalism. Hong Kong L J 45:315–329Google Scholar
  13. Yeh J-r, Chang W-C (2011) The emergence of East Asian constitutionalism: features in comparison. Am J Comp L 59(3):805–839CrossRefGoogle Scholar

Copyright information

© Springer Science+Business Media Singapore 2016

Authors and Affiliations

  1. 1.College of LawNational Taiwan UniversityTaipeiTaiwan

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