About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

3 J. Comp. L. 118 (2008)
The Constitutional Courts of Thailand and Indonesia: Two Case Studies from South East Asia

handle is hein.journals/jrnatila3 and id is 477 raw text is: The Constitutional Courts of Thailand and Indonesia The Constitutional Courts of Thailand and Indonesia: Two Case Studies From South East Asia ANDREW HARDING AND PETER LEYLAND * INTRODUCTION This article is a comparative study which considers the role of constitutional courts in two emerging democracies with contrasting systems. Most obviously, Thailand has a constitutional monarchy and a parliamentary system, while Indonesia is a republic with a presidential system. While Thailand adopted a new constitution in 1997 and again in 2007 (both of these introducing a slightly different model of constitutional court), Indonesia extensively modified its 1945 Constitution almost beyond recognition in a series of amendments during the period 1999-2002. However, in each case the framers of the present constitutional arrangements have been concerned to engineer a strong separation of powers, and, to this end, they placed considerable faith in constitutional adjudication. The challenge is not simply to create a counterweight to the abuse of executive power and to the conduct of politicians by placing power in the hands of judges, but to create respected institutions which are to some extent insulated from the political fray. As one well known commentator has argued: 'a deliberative democracy, operating under a good constitution, responds to political disagreements not simply by majority rule but also by attempting to create institutions that will ensure reflection and reason giving'.' An important focus of this article is to evaluate to what extent these broad objectives have been achieved within these respective constitutional systems through the establishment of a constitutional court. The discussion commences by setting out the legal and political context of first the Thai and then the Indonesian constitutional court. The second part of the article proceeds with comparative analysis by offering a side-by-side discussion of important institutional characteristics, including respective methods of appointment and tenure, rules of standing, and approaches to judicial decision-making. In the final section * Professor of Asia-Pacific Law, University of Victoria, BC, Canada; Professor of Public Law, London Metropolitan University, UK. The authors would like to acknowledge the extremely helpful comments of J6rg Fedtke and Tom Ginsburg; and the assistance of Joana Thackeray, Nuthamon Kongcharoen and Manthana Yawila. 1 Sunstein, C (2001), Designing Democracy: What Constitutions Do, Oxford University Press, at 239. 118 JCL 3:2

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most