Legalinstitutions
has elections for its House of Representatives. The Senate is composed of 26 members, two elected by each of the 13 State Legislative Assemblies and 44 appointed by the King on advice of the Prime Minister.
The general courts in all nations conform to a three- or four-tiered hierarÂchy, with a Supreme Court or its equivalent as the court of last resort with ultimate appellate power. From this apex the tiers of courts descend down to large numbers which are the local or regional courts, at the â€?grassroots' level. What is interesting is that Supreme Courts in countries such as Brunei, Japan, Malaysia (where it is the Federal Court), Singapore and the Philippines have the power to interpret legislation and are also, with the exception of Brunei (where it was removed in 2004), vested with the power of judicial review over the constitutionality of legislation. Whether this power is used widely in practice is another question, given that in the case of Singaporejudicial review has only once been used to declare a statutory provision unconstitutional. The socialist countries give the power of interpretation and determinations on constitutional validity to the legislature, so in China it is the role of the Standing Committee of the National People's Congress. This has had consequences in Hong Kong where tension has arisen between the role of China's Standing Committee in interpreting the Basic Law (which functions as a constitutional document for this Special Administrative Region) and judicial review powers belonging to its own Court of Final Appeal. While the Standing Committee of the National Assembly of Vietnam has similar power for interpreting its laws and ordinances, this power is rarely exercised. In practice, citizens submit enquiries to the authority that drafted, passed or is administering that law or ordinance. The authority provides a written response - an â€?official letter' - informing the citizen of how the law should be interpreted or applied and how the citizen should behave.25 While these â€?official letters' are not legally binding they play a normative role in guiding behaviour.
Otherjurisdictions, notably Korea and Taiwan, following the civil law model, have created special courts separate from the general hierarchy of courts to fulfil the role of determining the constitutionality of statutes, presidential decrees or ordinances. In Taiwan the Council of Grand Justices is part of the Judicial Yuan but separate from the Supreme Court which has power to interpret civil and criminal laws. The Council has exclusive power to interpret the Constitution and to unify interpretations of laws and regulations. Korea's Constitutional Court is an independent and separate judicial institution which can deal with other matters including impeachments (as it did recently for President Roh) and give judgments on dissolution of political parties. However, its impact as a protector of the constitutionally protected human rights of Korean citizens has been signifÂicant. The mechanism of citizen petition has increased the Constitutional Court's efficacy and the number of cases brought to it for determination. Since 1988, of almost 15 000 cases decided by the Constitutional Court, 773 have found laws to be â€?unconstitutional’. Indonesia has more recently (2003) established a ConstiÂtutional Court with powers similar to that of Korea, except that its review powers extend to statutes only, and, according to a statute, only to statutes implemented after 1999. It also has made important decisions in upholding human rights in Indonesia. All three of these Constitutional Courts are seen as a mechanism for strengthening democracy and lessening authoritarianism.
In addition to Constitutional Courts, other specialised courts have emerged in the last decade,[21] either in response to a niche or technical area of law, such as the Intellectual Property, Patent and Taxation Courts, or to signal that a particular weakness of the existing system is being addressed and prioritised. This was the case in setting up the Anti-Corruption Court in Indonesia as it was seen as a vehicle to tackle pervasive corruption which was identified as a priority after the Reformasi (Reform) era.
The Sandiganbayan of the Philippines is its specialised court to deal with corruption, which has also been identified as one of the nation’s most pressing problems. The Human Rights Court in Indonesia was set up in response to international criticism and concern over events that had taken place in East Timor and elsewhere and its Commercial Courts, like those in Vietnam, were in response to international pressure brought by outside bodies such as the IMF. These special courts, unlike the special Constitutional Courts, are generally not in a hierarchy of their own and their decisions are ultimately reviewed by the general Supreme Court.While many of the nations have special courts dealing with children, coronial matters,[22] industrial relations, and military courts (court martial), the countries with significant Muslim populations - Brunei, Indonesia, Malaysia, the PhilipÂpines and Singapore - also have Sharia courts. These courts have jurisdiction only over Muslims and the subject matter is generally limited to family, inheritance and other personal matters or ones going to religious adherence and moralÂity. In Indonesia these courts fall under the supervision of the general Supreme Court, but in Malaysia they form a separate hierarchy. There can be jurisdictional questions that arise in such dual systems, for example in conversion or apostasy cases, and these are carefully explored in the chapter on Malaysia.[23] A unique specialised court in Malaysia is its â€?Special Court’ which was given exclusive jurisdiction to hear all civil cases and try all offences committed in Malaysia by the King or Malay State Rulers. This replaced the previous full immunity given to them. However, neighbouring Brunei has retained immunity for the Sultan in his personal and official capacity.
A distinctive feature of the two socialist nations is the role given to the ComÂmunist Party in the adjudication process in the courts. Adjudication Committees are set up in all levels of the courts to discuss important and difficult cases with the judges hearing the case before the court.
The Committee also assists the court with Otherjudicial matters. The chapter on China provides insightful analÂysis of the concerns such Committees pose for judicial independence and for the efficacy and transparency of the adjudication process but balances this with the justifications given for the Adjudication Committees which centre on the rapid development of the court system in China. In order to ensure competency and to mitigate against corruption, direction of this type is warranted.The procuracy in China and Vietnam, or public prosecutors in Indonesia, Korea and Taiwan, may also be included as a legal, even as a judicial, institution in these civil law countries. These procuratorial bodies mirror the hierarchy of their judicial counterparts and determine which criminal cases will come to trial. Their role in investigation, prosecution, and execution of sentence, including supervision over correctional facilities, gives them far more power and influence than the public prosecutor in the common law model. They also provide a â€?check and balance' mechanism in the criminal justice system and should protect the human rights of accused persons throughout the process.
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