Much recent work has focused on the ways in which liberal democratic constitutionalism can be eroded from within, including by manipulating law and the tools of constitutional change. Courts are often seen as an indispensable protection for a democratic constitutional order, and there are indeed examples of courts guarding against abusive forms of constitutional and legal change. However, in other recent cases courts themselves have affirmatively aided would-be authoritarian actors in undermining the liberal democratic order. This is a phenomenon that we call abusive judicial review. This article seeks to define the phenomenon and develop a typology of its different forms. It also gives a number of examples of its use from across different regions and explains its recent importance in comparative constitutional law. Finally, it discusses possible political and legal solutions to the problem.
In the post-1989 wave of new democracies, courts served as important stopgaps as the complex institutional arrangements of modern democratic governance sought to take hold. Over the past few years, insurgent populist groups have used the structures of democratic election to unwind the liberal underpinnings of post-1989 democracies. While courts remain a critical arena for confrontation with populism, the judicial intervention that proved pivotal in the early stages of new democracies are hard-pressed to resume the same role if the other institutional features of democratic governance collapse. This paper will address the legal challenges of the current moment using examples from Poland, Hungary, Serbia, and Slovenia.
What is the relationship between the strength of a country's democracy and the ability of its courts to address deficiencies in the electoral process? Drawing a distinction between democracies that can be characterised as 'dominant-party' (for example Singapore, Malaysia, and Hong Kong), 'dynamic' (for example India, South Korea, and Taiwan), and 'fragile' (for example Thailand, Pakistan, and Bangladesh), this paper explores how democracy sustains and is sustained by the exercise of judicial power.
The Basic Law of Hong Kong proposes the eventual election of the legislature and chief executive by some form of universal suffrage. Achieving this requires consensus between the political branches in Hong Kong and the legislative body of the People’s Republic of China. Although not a formal requirement, any democratisation efforts will also need buy-in from Hong Kong residents to function effectively. Increasingly the views of all do not converge on how and when these constitutional aspirations should be realized. This paper identifies design problems in the Basic Law that have led to this political deadlock. The article will then look at the role of the courts in moving the democratic transition of Hong Kong forward, focusing on the need to reconstitutionalize political debate on electoral issues. This article evaluates possible reasons for the largely unsuccessful use of the courts thus far and proposes alternative litigation strategies for better results.
This paper considers post-Cold War African cases relevant to the issue of democratization. Institutional weakness continues to cripple some African courts, but others repay richer study. The Constitutional Court of Benin, stand-out of West Africa, has played a regular role in electoral disputes. The Kenyan Supreme Court has adopted a bolder, if sometimes precarious, stance under the new 2010 Constitution, including invalidating a presidential election in 2017. Both the Botswanan and South African courts have become noticeably bolder, relative to their respective baselines, as checks on their dominant parties. Such examples merit attention to promote discussion of the under-acknowledged role courts can play in the AU’s aspirational efforts to promote African democratization; to facilitate intra-African comparison; and to challenge perceptions that African courts are too inaccessible, poorly studied or depressingly dysfunctional to merit repay serious comparative attention.
Commentators for Papers on the Panel
Recent scholarship has exhibited great faith in the ability of constitutional courts to protect democracy in fragile regimes, while of late a more skeptical position has emerged to challenge this near-orthodoxy. In this paper, I take a more equivocal and contextual approach to the issue, by considering some of the costs and benefits of a court-centered strategy, and whether the circumstances under which it is likely to succeed are common or rare. Among the benefits is the possibility that courts are the hardest institution to strip of independence. Among the costs is that too much responsibility for the electoral aspects of democracy may come at the expense of other dimensions that are perhaps more peculiarly the province of constitutional courts, and the focus on courts may undervalue the importance of multiple independent institutions. If institutional design assumes that courts are the last best hope of democracy, they may turn out to be so more quickly than otherwise.