A Tale of Two Courts: The Judicialization of Electoral Politics in Asia

This article examines the judicialization of electoral politics in Asia, an important but understudied trend, as demonstrated in Thailand and Indonesia. Though the constitutional courts in both have similar histories and institutional arrangements, their electoral interventions vary radically. We argue that the diffusion or concentration of power among post-transition elites determines whether the effect of judicial activism will be to shore up or undermine electoral governance. Where power is diffused, as in Indonesia, political actors, less able to impose their own will on the judiciary, seem to prefer a credible referee, which fosters electoral competition. Where power is concentrated, as in Thailand, elites have both the motive and the means to turn judicial activism to antidemocratic ends. By focusing on the ends, rather than the means, of judicial activism, this account goes beyond personalities and institutional design to enhance understanding of the role of the courts in transitional democracies.