Constitutional Courts in Asia: Western Origins and Asian Practice

Abstract

Whereas law and courts, and to some extent, ideas of the rule of law, have existed in human history for millennia, written constitutions of states only have a history of approximately two centuries, and the earliest constitutional courts were established less than one century ago. The concept and institution of a constitutional court are, thus, relatively new inventions in the legal history of humankind. Yet, in the early twenty-first century, constitutional courts exist and operate in all corners of the world. They are a global phenomenon that deserves scholarly investigation from legal doctrinal, theoretical and comparative perspectives.

In this paper, we will first trace the origins and evolution of constitutional courts in the Western world and examine the transplantation of this legal or judicial institution to other continents and cultures (Section I of this chapter). The nature, functions and operation of constitutional courts will then be discussed (Section II). Next, we will focus on constitutional courts in East Asia and consider the history, experience and performance of the seven constitutional courts in this part of the world (Section III). Comparative observations on various features of these courts will be made (Section IV). Finally (Section V), we conclude by reflecting on the lessons and implications of the existence and operation of Asian constitutional courts.