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.
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.
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.
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.
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