The main purpose of this article is to demonstrate that in scenarios of democratic backsliding, changes in constitutional interpretation can be as serious as constitutional amendments. Those interpretative changes do not have to be a result of an abrupt break down, but they may be related to the recovery of non-official meanings and parallels practices that circulate and determine the functioning of certain autocratic institutions, specially in scenarios of recent transition, like those of Latin America countries. In other words, the interpretative deconstruction of democracy does not have to be initiated from the outside, by a permeabilization of narratives of populist groups outside the State, but they can start from within. Metaphorically, it will act like a hidden virus, which takes advantage of a moment of special weakness to attack. In case, the fragilization of the institutions would be the milestone for the outbreak of interpretative changes.
One of the most significant trends following the “Arab Spring” was the emergence and strengthening of constitutional courts. The aim of this paper is to discuss whether these bodies have acquired or not the potential to place adequate checks on the executive branch and thus contribute to the democratization processes in a more effective way compared to the past. In order to do so, I will first identify the main reasons why constitutional courts before the Arab Spring rarely acted as counter-majoritarian bodies. I will then discuss the major novelties introduced by the recent constitutional reforms in the field of constitutional adjudication, and I will analyze the role played by constitutional courts during the transition process. I will show that despite profound differences, some of the challenges Arab courts are currently facing are similar to the challenges faced by European constitutional courts in the past century after the fall of the respective authoritarian regimes.
The rise of authoritarian populist governments has posed a threat to the long held assumption that democracy has become the only game in town. In an article for the Journal of Democracy, Foa & Mounk, have described that support for democracy has been falling and political scientists have sounded alarms on the how democracies might die. In a more cautious tone, Pippa Norris and Ian Shapiro, in their most recent books, have acknowledged that while the threat cannot be dismissed, it is not yet possible to discard the thesis of democratic consolidation. Tradition parties, they argued, can respond to the populist challenge by adapting their own programmes, while retaining respect for core constitutional principles. Party competition, however, has rarely been the subject of analysis in constitutional law. Following Nicholas Barber’s thesis on the constitutional role of political parties, this paper aims to identify how constitutional courts can foster party competition.
Courts are notoriously influential in the consolidation of new constitutional regimes. However, their expected behavior changes depending on the nature of the transition. Negotiated elite transitions have Courts assume an activist posture early on, when there is a political legitimacy vacuum. Revolutionary transitions see Courts apply self-restrain in early years of a strong, legitimized political class. In all scenarios, Courts are expected to be more activist in the presence of a legitimacy vacuum. The Brazilian 1988 transition into democracy challenges this pattern. While there is an ongoing debate on the nature of the transition as negotiated or revolutionary, the Supreme Court practiced fierce self-restrain in the early days of slight political legitimacy. This paper analyzes the causes and diagnostics of the double-edged political vacuum Brazil experienced in the first phase of its New Republic, and what it can teach about the role of Courts democratic transitions.
One of the first reforms undertaken by the party “Law and Justice” after the victorious parliamentary elections in Autumn 2015 in Poland was aimed at destabilization of the Constitutional Tribunal. As a result of the mix of legislative and factual actions, since the end of 2016 the Tribunal is de facto unable to carry out its duties effectively and independently. Consequently, the need arose to look for alternative mechanisms of protection of human rights and the rule of law. The paper will discuss both the national (e.g. proconstitutional interpretation of law, diffuse constitutional review) and international (proceedings before the ECtHR and CJEU) mechanisms used or proposed in Poland for that purpose and will critically assess their effectiveness. Emphasis will be put on the role of international courts in safeguarding the rule of law. The conclusions may be relevant not only in the context of Poland, but also many other “illiberal democracies”.
It is sometimes argued that in order to prevent liberal democracy from decay, the role of the constitutional court may need to be strengthened so that it could successfully confront the populist government. But do we actually realize how much damage can be done when instead of defending the constitutional order the court becomes actively involved in supporting such a government?
The paper aims at providing a concise explanation of the changes which have occurred in the functioning of the Polish Constitutional Tribunal since 2016, when it was subject to a hostile takeover by the parliamentary majority. As evidenced by a number of cases, the Tribunal is now much more likely to follow the expectations of the political branch of government than to prevent democracy from further backsliding. This sudden transformation from the most important ally of the rule of law into one of its most powerful enemies makes the metaphor of a constitutional zombie disturbingly accurate.