In constitutional democracies, the legislative branch establishes electoral rules. In Brazil, proportional representation has led to a lower house composed by multiple political parties, which has impaired the conditions for a deliberative formulation of electoral rules. Electoral accountability tends to correct parliamentarian conduct and the multiple interests represented in parliament confer democratic legitimacy to laws. Furthermore, a list of institutional actors (including minority parties) can challenge the constitutionality of electoral rules. Notwithstanding, the judicial branch has drastically interfered in electoral disputes by either laying down general and abstract rules, disregarding the law, or allegedly enforcing constitutional principles. As for immediate effects, judicial decisions such as the one that modified the electoral financing system have undermined predictability, interfered directly with the conditions for competition, and changed political balance.
My key theoretical contribution is in the analysis of clientelism outside election-related politics. It is about the exercise of collective judicial autonomy in clientelist authoritarian regimes. Working through these intra-judicial clientelist sub-networks allows judicial chiefs to protect their clients, provide them with “modernizing” benefits and exercise collective judicial autonomy from the rulers-patrons more generally. This is why we see many post-Soviet leaders publicly blame judicial chiefs, whose fates the former totally control, for collective recalcitrance and “corporate solidarity.” Yet the mainstream theories of judicial politics have yet to explain both blaming of and behaving of seemingly pliant judges.
If liberal constitutional theory has long been preoccupied with the problem of concentrated executive power, it seems as if citizens in many constitutional democracies today do not worry themselves about such matters. This paper revisits concerns about the concentration of executive power, via both personalization and populism, with a view to reviving parliamentary accountability and responsibility. Reflecting upon the constitutional thought of Schmitt and Weber, and drawing upon a small set of country studies, the paper aims to revive a pluralist conception of parliamentary democracy where no one person, alone, governs.
While institutions are clearly not a sufficient guard against decline, many definitions of democratic decline focus on institutional degradation and the curtailment of independent checks on executive or at times legislative authority. This article argues, generally, that independent, non-partisan, and constitutionally protected election commissions must be regarded as a key component of constitutional resilience in the face of potential decline. With particular regard to South Asia, it claims that despite cross-national variation on important institutional features of election commissions, there is an identifiable “South Asian model” for the fourth or democracy branch. I include India, Pakistan, Sri Lanka, Bangladesh, Nepal, Bhutan, the Maldives, and Afghanistan within the country case studies. The article points out the strengths and weaknesses of the South Asian model and draws out the lessons for the separation of powers, constitutional design, and election administration.