Administrative Law and Governance in Asia: Comparative Perspectives

This book examines administrative law in Asia, exploring the profound changes in the legal regimes of many Asian states that have taken place in recent years. Political democratization in some countries, economic change more broadly and the forces of globalization have put pressure on the developmental state model, wherein bureaucrats governed in a kind of managed capitalism and public-private partnerships were central. In their stead, a more market-oriented regulatory state model seems to be emerging in many jurisdictions, with emphases on transparency, publicity, and constrained discretion. This book analyses the causes and consequences of this shift from a socio-legal perspective, showing clearly how decisions about the scope of administrative law and judicial review have an important effect on the shape and style of government regulation. Taking a comparative approach, individual chapters trace the key developments in the legal regimes of major states across Asia, including China, Japan, Korea, Malaysia, Taiwan, Hong Kong, Indonesia, Singapore, the Philippines, Thailand and Vietnam. They demonstrate that, in many cases, Asian states have shifted away from traditional systems in which judges were limited in terms of their influence over social and economic policy, towards regulatory models of the state involving a greater role for judges and law-like processes. The book also considers whether judiciaries are capable of performing the tasks they are being given, and assesses the profound consequences the judicialization of governance is starting to have on state policy-making in Asia.

Tom Ginsburg is Professor of Law at the University of Chicago. His research interests focus on comparative public law, international law, law and development, East Asia. His publications include Institutions and Public Law (2005, co-editor), International Commercial Arbitration in Asia (2002, 2nd edition 2005, co-editor), Legal Reform in Korea (2004, editor) and Judicial Review in New Democracies (2003).

Albert H.Y. Chen is Chan Professor in Constitutional Law, Faculty of Law, University of Hong Kong. His research interests include constitutional law, comparative law, and legal and political philosophy. His publications include The Basic Law and Hong Kong’s Future (1988, co-editor), An Introduction to the Legal System of the People’s Republic of China (3rd ed 2004), and Human Rights in Asia (Routledge 2006, co-editor).

Preface Albert Chen and Tom Ginsburg 1. The Judicialization of Administrative Governance: Causes, Consequences and Limits Tom Ginsburg Part 1: General Perspectives 2. On the Macroeconomics of Judicialization: The Promise and Perils of Exploring ‘Judicialization’ in East and Southeast Asia Michael W. Dowdle 3. Agencification, Regulation and Judicialization: American Exceptionalism and Other Ways of Life Colin Scott 4. Riding the Accountability Wave? Accountability Communities and New Modes of Governance Kanishka Jayasuriya Part 2: Northeast Asia & Greater China 5. Administrative Law and Judicialized Governance in Japan Hitoshi Ushijima 6. Judicialization, Government Reform, and the Development of Public Law in the Republic of Korea Jongcheol Kim 7. Democracy-driven Transformation to Regulatory State: The Case of Taiwan Jiunn-rong Yeh 8. Administrative Law, Politics and Governance: The Hong Kong Experience Johannes Chan 9. More Law, Less Courts: Legalized Governance, Judicialization and Dejudicialization in China Randall Peerenboom Part 3: Southeast Asia 10. Changing Understandings of Administrative Law in Vietnam John Gillespie 11. The Emergence of Administrative Justice in Thailand under the 1997 Constitution Peter Leyland 12. Administrative Law and Judicialized Governance in Malaysia: The Indian Connection Gan Ching Chuan 13. The Judicialization of Governance? The Case of Singapore Jolene Lin 14. "Government by Judiciary" in the Philippines: Ideological and Doctrinal Framework Raul C. Pangalangan 15. Administrative Law and Judicial Review in Indonesia: The Search for Accountability Stewart Fenwick 16. Conclusion: Reflections on Administrative Law and Judicialized Governance in East and Southeast Asia Albert Chen