late 1940 s, even though each has in fact undergone substantial amendment.
Third, each system has what Yeh and Chang characterize as “reactive and cau-
tious” judicial review. While one might contest the claim with regard to particular
cases, such as South Korea,^8 the fact is that most Asian liberal democracies are not
“juristocracies.”^9 Instead, the courts exist in rough balance with other institutions,
and their power ebbs and flows in a kind of dialogic fashion. This fact speaks to
Michael Dowdle’s work, informed by his long engagement with the Chinese
experience, that decenters judicial review as the definitional element of
constitutionalism.^10
This basic pattern of formal continuity, with substantial amendments but
cautious review, might be said to characterize the Indonesian case as well.
Like Taiwan, Indonesia had an old constitution that survived a transition to
democracy and then was significantly modified. It has produced a constitutional
court, directly adapted from the South Korean model, that has at times played a
prominent role. Scholars of the Indonesian court focus on the limitations of
jurisdiction that have prevented it from playing a high-profile role.
A second variant of liberal constitutionalism was demanded from below.
Thailand’s 1997 constitution, now replaced but with continuing institutional
legacies,
11
was an example here; others include the “People Power” constitution
of the Philippines and arguably, though from a different angle, post-Soeharto
Indonesia.
12
All three polities have experienced some significant judicialized polit-
ics. The Philippines comes closer than Thailand to exhibiting features of fully
fledged liberal constitutionalism. There have been repeated instances since 1987
in which governments have sought to extend their rule and engage in practices
that were then not allowed, either by the courts or by popular opinion. In my view,
the Philippines is an important case that deserves further attention because it seems
to be the case in the region that corresponds to the “classical” view of liberal-
democratic constitutionalism emerging from below as a result of social struggles.
Thailand, on the other hand, can hardly be considered stable in its constitutional
form, as it is the region’s poster child for constitutional instability. All in all,
(^8) Tom Ginsburg, “The Constitutional Court and the judicialization of Korean politics,” in
Andrew Harding et al. (eds.),New Courts in Asia(New York: Routledge 2009 ), p. 145.
(^9) Ran Hirschl,Toward Juristocracy(Cambridge, MA: Harvard University Press, 2004 ).
(^10) Michael Dowdle, “Beyond judicial power: courts and constitutionalism in modern
China,” in Stephanie Balme and Michael Dowdle (eds.),Building Constitutionalism in
China(New York: Palgrave Macmillan, 2009 ), p. 199.
(^11) Tom Ginsburg, “Constitutional afterlife: the continuing impact of Thailand’s post-
political constitution” ( 2009 ) 7 ( 1 )International Journal of Constitutional Law 83.
(^12) On Indonesia, see Donald Horowitz,Constitutional Change and Democracy in Indonesia
(New York: Cambridge University Press, 2013 ). He notes that the constitution was not
produced with public involvement, but the mass demonstrations that brought Soeharto
down indicate a certain presence of the people-power dynamic. Notably the Philippine
constitution was not produced with extensive public involvement.