Inverse Interplay Between Rights And The Judicial Review In Weak/Flawed Democracies

Inverse Interplay Between Rights And The Judicial Review In Weak/Flawed Democracies - A Comparative Perspective In The Asian Context

Mehras Nissar, Faculty of Law, The University of Hong Kong

ABSTRACT

Judicial Review is the basic procedural mechanism by which the apex court judges scrutinize public bodies and public law functions, intervening as a matter of discretion to quash, prevent, require or clarify (and occasionally compensate) not because they disagree with a merits judgment, but so as to right a recognizable public wrong, whether unlawfulness, unreasonableness, or unfairness.1Judicial review has acquired a prominent position in various democratic constitutions around the globe, and the new and emerging ones are equally enthusiastic to make judicial review a part of their respective constitutions. It is considered as the hallmark of the very notion of the rule of law. In this context, what needs to be examined is that whether the judicial review helps in stabilizing the democracies or acts as a stumbling block for the emerging and the weak ones. In this article, I shall examine this proposition through the lens of three Asian jurisdictions – Taiwan, Thailand and Pakistan.

I suggest that in an ongoing age of democratic rights and principles, the accurate and precise form of judicial review needs to be exercised rather than it being either excessive (strong-form of judicial review) or deficit (weak- form of judicial review) in nature.

Keywords: Judicial Review, weak democracies, emerging constitutions, Asian countries, etc.