4.3.1.1 Ely and Process Theory

John Hart Ely’s renowned process theory of judicial review inspires three of the roles proposed (the referee role, the interpretative role, and the quasi-representative role), so it is helpful to outline aspects of his argument first. In his seminal book Democracy and Distrust, Ely proposes a theory of judicial review that is “participation-oriented, representation reinforcing.”Footnote ³⁷ Courts, according to his theory, enhance participation and reinforce representation by “polic[ing] the process of representation.”Footnote ³⁸ The purpose of judicial review, Ely writes, is to “ensure that the political process [i]s open to … all viewpoints, on something approaching an equal basis.”Footnote ³⁹

His argument is motivated by his distrust of the political process. His theory’s central idea, as Stephen Gardbaum describes, is that the “protection of a system of representative democracy against erosion or degradation by elected representatives cannot be left exclusively in their hands.”Footnote ⁴⁰ Malfunctions within the political process are incapable of self-correction when those problems are created by political representatives themselves. According to Ely, there are two ways for a court to fulfil this role: by upholding rights key to the democratic process such as freedom of expression and voting rights, and by protecting the rights of minorities.

Process theory sounds attractive, as it aims to offer a novel way out of the counter-majoritarian difficulty. Compared with Ronald Dworkin’s interpretivism, Ely argues that process theory is more democratically legitimate as courts under his theory need not engage with substantive norms and values. According to Ely, judicial review is justified as it improves democracy without removing the democratic authority of the people. His work is also driven by a strong skepticism of political actors that is commonly found in contemporary constitutional scholarship.Footnote ⁴¹ The fact that this political distrust still resonates with us today is perhaps one reason why his work remains highly relevant.

A question many have had about Ely’s work, however, is whether his theory is actually value- or substance-free.Footnote ⁴² Interpretations of democratic rights and minority rights clearly have substantive dimensions and involve moral disagreements. This line of critique makes one wonder if Ely can completely sidestep the counter-majoritarian difficulty faced by other theories that support judicial review. Nevertheless, this critique is not necessarily fatal. Ely’s theory is process-based because it aims to improve the democratic process, not because it focuses only on judicial review of process rights or procedures. In fact, Ely’s theory is arguably better characterized as a particular interpretative approach with a democratic orientation. Or as Aileen Kavanagh describes, his theory is “substance oriented towards, and emanating from, the American system of representative democracy.”Footnote ⁴³ While some of the arguments presented later are inspired by Ely’s process theory, these objections do not matter in the context of the thesis, as will shortly be clarified.

4.3.1.2 Courts as Referees

The first role discussed is a literal interpretation of what Ely calls “court as referee.”Footnote ⁴⁴ This phrase is borrowed from the title of one of his chapters, where he argues that the role of a court is to police the political process. Echoing Ely’s justifications, my arguments throughout this book share a strong distrust of political representatives and seek to orient a hybrid regime toward a more democratic constitutional structure. Departing from Ely, the first role proposed here adopts a narrow understanding of “process” to mean constitutional “rules,” with rules meaning directives with unambiguous triggers.Footnote ⁴⁵ These rules include but are not limited to procedural requirements and clear-cut legal-constitutional boundaries. The clarity of a rule is obviously a matter of degree, as some rules can be more unarguable than others. However, within every legal community, common standards for determining the meaning of legal and constitutional provisions exist, and there are inevitably rules that lie closer to the “unambiguous” end of the spectrum. The referee role is most applicable to rules close to that unambiguous end. A sports referee is only in the business of enforcing the rules of the game. It is not their job to question the inherent fairness of the rules. Similarly, the role of a court as referee is not to evaluate the substance or constitutionality of government policies or laws, but to guard against rule-breaking activities and procedural irregularities. With their constitutional jurisdiction and ancillary powers, courts have the tools to ensure that the constitutional rules and political processes are followed and obeyed.

By limiting a court’s role to unambiguous rules and procedures, the referee role largely escapes the substance versus process criticism that haunted Ely’s process theory. As a corollary, however, this role seems weak as one might ask how democracy-enhancing a constitutional court is without engaging with questions of value and substance. Furthermore, some might argue that since the rules are created by authoritarians, many rules are actually unattractive. The referee role might, then, have authoritarian effects when the court is asked to uphold antidemocratic laws as well.

I make four points in response to these concerns. First, I am not ignoring substantive approaches. In fact, judicial roles with a more substantive dimension are explored in the next subsections. The refereeing role is only one of five roles; courts should consider all of them whenever they are appropriate under different conditions. While fairness of the law and its democratic pedigree is normally beyond the purview of a constitutional court, the ways in which a constitutional court can challenge the constitutionality and validity of authoritarian laws and policies are explored later in this chapter. Not to mention, it is also occasionally possible to couch questions of fairness, democracy, and justice as questions of constitutionality and validity.

Second, while the referee role might sound modest, it is of crucial importance, as it strengthens constitutional legal accountability in a hybrid regime. Capturing perfectly how hybrid regime incumbents today behave, Erin Jenne and Cas Mudde write, “authoritarian leaders typically undermine democratic institutions by not respecting the law. Rather than changing the rules, they bend or break them, relying on patronage and low administrative capacity to get away with it.”Footnote ⁴⁶ This nature of hybrid regime incumbents provides the necessary impetus for the referee role. Given the incumbent’s higher default chance of winning elections and the reduced political cost of dislodging various kinds of oversight, constitutional rules with normative substance are easily ignored or disregarded without repercussions or public knowledge. The referee role compels the incumbent to answer to the law by limiting the exercise of arbitrary powers and imposing legal and reputational costs for legal noncompliance.

The Pakistani courts provide an excellent illustration of the referee role. Two political failures that the Chaudhry court focused on tackling were the abuse of executive powers and governmental corruption. This is reflected in the kinds of cases selected by the courtFootnote ⁴⁷ as well as some of the high-profile challenges it made against the incumbent. Perhaps the most famous case in this regard is Watan Party v. Federation of Pakistan,Footnote ⁴⁸ more commonly known as the Pakistan Steel Mills case. The case involved the privatization of state-owned steel mills, where the opposition and labor unions as claimants argued that the enterprise was sold at an excessively low price and alleged corruption. Annulling the privatization agreement, the Supreme Court described the process as “reflecting serious violation of law and gross irregularities with regard to sale of the first and the biggest steel mill that this country has.”Footnote ⁴⁹ The many glaring irregularities included grossly understating the valuation by excluding the value of the land,Footnote ⁵⁰ a mismatch between the name of the buyer and the name of the bidder,Footnote ⁵¹ dubious credentials of the real buyer,Footnote ⁵² and failure to complete the transaction within the prescribed period of time.Footnote ⁵³ While the incident was only one of many corrupt dealings occurring in Pakistan at the time, the judgment symbolized the court’s determination to crack down on public corruption. The constitutional court helped advance good governance and tackle pathologies related to a lack of democratic oversight.

Elections in a hybrid regime are another process in particular need of a referee. As previously described, incumbents win elections in hybrid regimes through a variety of questionable tactics, many of which are unlawful, and are occasionally able to evade liability due to the lack of public admonishment. In Hong Kong, for example, opposition candidates have been disqualified from running for election because they are deemed by the incumbent to not be patriotic enough. In disqualifying these candidates, the government did not offer any opportunity for the candidates to explain or defend themselves. On procedural fairness grounds, the courts held that the disqualifications were against “the principle of natural justice” as the government had failed to provide the candidates with a reasonable opportunity to respond.Footnote ⁵⁴

The Ugandan courts’ historical record as a referee may be mixed, but there was a “dramatic rise in the accountability functions of the judiciary” during the 2000s, as Siri Gloppen observes.Footnote ⁵⁵ The courts played their referee role in some of Uganda’s most well-known cases. A notable one involved a referendum. Prior to 2000, Uganda operated as a one-party system under the banner of Museveni’s Movement System or no-party democracy. Article 271(3) of the Ugandan constitution, however, stipulated that a referendum determining “the political system the people of Uganda wish to adopt” must be held within four years after Uganda’s first election in 1996. With restrictions on opposition parties and the incumbent’s systemic advantage over the existing political structure, the opposition argued that there was no way that the referendum could have been held fairly. The result of the 2000 referendum favored preserving the current political system. Seeking to overturn the referendum, the opposition took the matter to court. The Constitutional Court held that the Referendum Act was unconstitutional as it was passed without the constitutionally mandated quorum.Footnote ⁵⁶ A new Referendum Act that was supposed to replace the old one was also ruled unconstitutional by the Supreme Court on similar procedural grounds. The result of the referendum was, however, maintained, likely because the Supreme Court did not want to trigger a constitutional crisis.Footnote ⁵⁷

The kind of accountability offered by a constitutional court in its role as referee differs from democratic accountability. Constitutional legal accountability is based on the idea of determining whether a law or action violates a constitutional or legal norm, while democratic accountability is based on a principal–agent relationship between the government and the people.Footnote ⁵⁸ The government, as a principal, has a duty to act on behalf of, report to, and justify its decisions to its people. As an agent, the people are empowered to sanction the government through elections and other established political means when the government falls below a certain standard.

However, the benefits of constitutional legal accountability overlap with those offered by democratic accountability.Footnote ⁵⁹ The government must explain itself to the people in the legal process, as constitutional legal accountability forces the state to confront issues that are otherwise ignored because of the incumbent’s political dominance. A constitutional court’s expressive and public character flushes out the dubious intentions of those in power, improves the transparency of the government, and allows the people to better monitor the state. By reminding the incumbent that rules have to be taken seriously, constitutional legal accountability promotes political responsiveness, at least regarding the issues being challenged.

Third, on top of providing constitutional legal accountability and partially compensating for the lack of democratic accountability, the referee role supports rule-of-law values through the social effects it creates. Rule of law requires society’s internalization of constitutional legal norms. This begins with the public and government officials’ acceptance that powers must be exercised in accordance with established rules.Footnote ⁶⁰ Taking the law seriously is a basic requirement of rule of law. In authoritarian regimes, government decisions are sometimes made on a whim, and the law is distorted or ignored to realize the incumbent’s self-interested agenda. A constitutional court can help restore the fundamental values of rule of law by showing that rules need to be respected by everyone, including the incumbent. In sports, the referee is “a symbol of fair play, integrity and sportsmanship.”Footnote ⁶¹ A similar symbolic power is at play here, which has potentially far-reaching effects on the constitutional culture of a hybrid regime. The social effects of a constitutional court will be discussed later in this chapter.

Finally, the referee role is justifiable when the rules being applied are attractive ones. Sometimes, despite the unambiguous language of the rule, it may be possible for courts to make exceptions by creating contextual requirements for the application of an unattractive rule. A certain degree of selective enforcement is defensible given the authoritarian effects that would ensue as a result of a completely neutral application of the referee role. Selective enforcement, however, depends on judges’ ability to legitimately carve out exceptions despite the unambiguous language of a rule. Furthermore, the risk of being selective is that the court might be seen as politically biased and ignoring the demands of the law. There is consequently a limit as to how selective courts can be if they want to preserve their image of impartiality and minimize the risks of political backlash. True to the spirit of a referee, this role inevitably requires a constitutional court to sometimes enforce rules with authoritarian effects.

Despite this, the net effect of the referee role is likely to be democratic in most hybrid regimes. Whether this role ultimately leads to democracy-enhancing effects depends on whom this role impacts the most. The answer here is rule-defiant actors, most notably the incumbent and elites in a hybrid regime, who are able to act with impunity because of their electoral and political dominance. A rule being the product of an undemocratic process does not mean that it is inherently unattractive. In fact, in an attempt to free-ride on the reputation of liberal democracies, hybrid regimes oftentimes import constitutional provisions and political rules from other democracies.Footnote ⁶² A referee role will revive many constitutional breaks and constrain authoritarian aggrandizement.

4.3.2.1 Discretion and Value Judgment

Most problems presented before a constitutional court involve constitutional and/or statutory interpretation. This can happen in a number of ways. The text of the law, especially constitutions, are frequently open-textured and indeterminate. Relying on the text alone or even precedents may be insufficient to control a legal outcome.Footnote ⁶³ A constitutional text that protects freedom of speech, for instance, does not specify whether pornography or appropriation art are protected speech under the constitution. We may also need social and/or moral facts to answer the question. The open-textured nature of the law is not necessarily a defect. Relying on legal concepts such as “fairness,” “reasonableness,” and “necessity,” the language of a legal provision or doctrine invites discretion in order to adapt to different social circumstances. Partly because of how laws are usually drafted in such a manner in a public law context, a legal issue can attract closely balanced legal arguments which have diverging, and sometimes irreconcilable, conclusions.

A key assumption here is that the law, particularly constitutional law, often accommodates reasonable disagreements. This is partially attributable to the nature of legal language, but, to a greater extent, to the fact that many constitutional cases involve moral and/or policy considerations. The assumption here is not that law is simply politics or the result of judges’ personal preferences. The attitudinal model of law, once very popular among political scientists, obscures the legal dimension of a constitutional court and fails to account for interactions and deliberations within the courtroom.Footnote ⁶⁴ Nevertheless, the law is usually not a mathematical equation that renders unequivocally right or wrong answers. The standards of the legal community impose normative limitations on what kinds of legal methodologies are acceptable. Within the parameters of the law, though, broadly speaking, there can be a number of legal arguments and legal outcomes in a given case that are considered legally persuasive or at least reasonable under accepted standards of legal argumentation.

4.3.2.2 Adopting a Democracy-Enhancing Route

The interpretative role does not dismiss the importance of the law, but relies on a characteristic of law that is especially common in constitutional law. In these instances, the ultimate decision of a court must involve a degree of value judgment. Consciously or subconsciously, judges need to choose among competing outcomes based on the norms inherent in the different legally plausible arguments that are available to them.

The difference in judicial treatment of defamation against public officials or public institutions in Hong Kong and Singapore exemplifies how a constitutional right can give rise to almost opposing lines of jurisprudence depending on judicial interpretation. While both courts operate in hybrid regimes, those in Hong Kong adopted a path that is much more consistent with liberal democratic values than their counterparts in Singapore. In the first landmark case after the handover, Ng Ka Ling & Ors v. Director of Immigration,Footnote ⁶⁵ the Court of Final Appeal in Hong Kong established the approach of giving rights-protective provisions a generous interpretation.Footnote ⁶⁶ This is not empty rhetoric. In Cheng Albert v. Tse Wai Chun Paul,Footnote ⁶⁷ the Court of Final Appeal decided that the defamation defense of fair comment can only be defeated if the defendant does not genuinely hold the view he or she expressed. Departing from the common-law position at the time, the court ruled that the motive of the speaker, however improper it may be, became irrelevant. Reiterating its rights-protective interpretative approach, the court held that “the Courts should adopt a generous approach so that the right of fair comment on matters of public interest is maintained in its full vigour.”Footnote ⁶⁸ In striking a balance between freedom of expression and protecting private reputation, the Hong Kong courts prioritized the prior. In recent years, the defense of fair comment has become especially valuable as Hong Kong witnesses an increased number of defamation claims (or the threat thereof) launched by the incumbent and its allies against the media and dissidents. At the time of writing, none of these defamation claims have eventuated or succeeded, probably because of how difficult it is for a defamation claim to succeed in court as a result of the Cheng case.

Contrast this with the Singaporean approach. Scholars observe that defamation suits are routinely weaponized by the authorities to silence critics and censor opposition.Footnote ⁶⁹ The Singaporean courts have adopted a more speech-restrictive position than courts in Hong Kong. Leaders of the incumbent party regularly win in these defamation suits.Footnote ⁷⁰ Such suits are not only brought against individuals, but also the press. Foreign press and online columnists are particularly targeted.Footnote ⁷¹ As one critic observes, “the Singapore judiciary has hardened its position in rejecting the arguments that defamation actions and contempt of court committals could constitute unlawful interference with the fundamental right of free speech.”Footnote ⁷² While the Hong Kong courts have effectively disarmed the authoritarian in this respect, the Singaporean courts have chosen a path that tilts the balance toward the authoritarian in the name of protecting private reputation. It is well known that defamation laws have significant chilling effects on the political community of Singapore.

Another rights-protective interpretative example can be found in Uganda, where the Supreme Court made a particularly bold move in 2004 by ruling unconstitutional a law that criminalizes “false news,” more commonly referred to as fake news.Footnote ⁷³ With the rise of social media and the difficulty of detecting false or misleading content, fake news has become a problem faced by states around the world. Authoritarians have, however, reserved the power to determine what is “fake” or not to themselves. These laws have been abused to silence critics and censor the press. In Uganda, fake news was broadly defined by legislation as “any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace,” with a maximum penalty of two years for publishing such content. The law was challenged in court and eventually struck down. The Supreme Court was well aware of the problems caused by fake news, but the court was more skeptical about leaving “unfettered discretion” to the authorities. The judges also repeatedly emphasized the importance of freedom of expression and freedom of press, and reminded the government of its constitutional commitments as a “free and democratic society.”

These cases illustrate the interpretative choices that are typically available to judges in constitutional cases, as well as the choices they must make in light of their own assessments of what morality requires. While these courts operate in environments with similar legal traditions and political constraints, the Hong Kong and Ugandan courts have demonstrated that it is possible to find and adopt jurisprudential routes that correspond to constitutional democratic norms more closely.

There might be concerns about what a democratically friendly interpretation is in practice. Different understandings of democracy might affect, on a more granular level, which democracy-enhancing route should be adopted. But consistent with my approach in the first chapter, a thin conception of democracy is already sufficient to activate this approach. In other words, there may be many interpretations in each case that satisfy the requirements of this role. More importantly, the choices available to a hybrid regime constitutional court are rarely two closely democratic routes. Rather, one is quite clearly authoritarian in character and defended by the incumbent, while the other is the challengers’ route that mitigates the antidemocratic tendency of the law or policy in question.

4.3.2.3 Proportionality Doctrine

The interpretative role affects how doctrines that structure judicial discretion should be applied. Take, for example, the proportionality test, which is arguably the most prominent doctrine in constitutional jurisprudence in recent decades.Footnote ⁷⁴ Replacing ad hoc balancing exercises, the proportionality test offers a systematic framework that allows courts to assess the extent to which a derogation of rights is constitutional, or, to use the terminology of the test, proportionate.Footnote ⁷⁵ Providing an “analytical structure,”Footnote ⁷⁶ the doctrine has allowed courts to adjudicate rights cases more systematically, effectively, and transparently. There is an ongoing and robust debate over how the test and its application can be perfected. An oft-repeated observation is that even with the proportionality test, there remains considerable latitude for judicial discretion.Footnote ⁷⁷ The language and the different stages of the proportionality test provide the “discursive frame for norm-based argumentation that enables the litigating parties and the judge to bridge the domain of law and the domain of interest-based conflict.”Footnote ⁷⁸ A function of these legal frames is to constrain judicial discretion, but the test remains sufficiently malleable to accommodate competing arguments.

The test helps judges identify relevant goals and interests in conflict and points toward considerations that should be given weight to, but it remains the judges’ task to apply the framework and fill in the gaps, which involves considerable discretion. To what extent is an aim legitimate? What does it mean for a policy to be a proportionate response to such an aim? How should judges factor in alternative options in assessing proportionality? These are questions that invite value judgments. My intention here is not to critique the test, but instead to show how the test offers room to prioritize constitutional democratic norms.

For one, the intensity of review when applying the proportionality test should be turned up when constitutional democratic norms are threatened. Because constitutional democratic norms are particularly weak and vulnerable in a hybrid regime, there is a necessity for the constitutional court to be extra vigilant in adjudicating cases that concern these rights. Heightened scrutiny increases the threshold for deference to the government and requires closer inspection of the justifications relied upon by the government in order to ensure that the rights in question are given extra protection.Footnote ⁷⁹ Likewise, courts should give extra weight to rights that are missing or weak in a hybrid regime when engaging in balancing exercises, such as the right to political participation, political equality, freedom of expression, and freedom of assembly.

4.3.2.4 Reducing the Presumption of Constitutionality

An even more ambitious technique that is similar in spirit is to reduce the presumption of constitutionality or validity as applied to all laws and policies being challenged in a hybrid regime.Footnote ⁸⁰ Courts normally presume that the law made by the democratic process is constitutional. This presumption, which manifests in different ways in different jurisdictions, emerges from the separation of powers, which implies that the judiciary ought to respect the legislative function of the political process and the will of the people. Nevertheless, the presumption is tenuous in a hybrid regime, as its political process does not enjoy the same degree of democratic legitimacy. This does not mean that all laws should be presumed to be unconstitutional, but rather that the reduction in the presumption supports a higher degree of scrutiny generally. In practical terms, this might mean, for example, that a government should be required to adduce additional evidence to prove that the adoption of the policy in question is justified and to make comparative assessments between alternatives, instead of the court merely accepting the government’s assertion of competency in policymaking areas and any kind of empty rhetoric.

4.3.2.5 Semi-procedural Review

Another way the interpretative role can be implemented is to use the quality of the legislative debate or the consultative process as grounds for adjusting the level of deference, or even use these as an independent reason to strike down laws. The superior democratic legitimacy of the political branches of government is a commonly cited reason for judicial deference. There has been much academic discussion regarding how and the extent to which this factor should affect the degree of judicial scrutiny.Footnote ⁸¹ These debates have theoretical implications for a hybrid regime, as many laws and policies being challenged lack the same democratic pedigree and democratic approval scholars assume exist in liberal democracies. The argument here is that poor legislative deliberation or failure to engage with those impacted by a decision or a law should result in a more assertive constitutional adjudicative approach. Ittai Bar Siman Tov calls this approach semi-procedural judicial review.Footnote ⁸² It is semi-procedural because it is substantive in nature (as a court is determining the constitutionality of a law based on its substance), but the examination of the legislative and consultative process (i.e. the procedural look) complements its substantive judgment. Procedural defects are taken to indicate a substantive flaw or the presence of unconstitutional motivations.

Scholars are still considering whether the quality of the legislative debate or consultative process should be used as a separate doctrine or incorporated into the proportionality doctrine. The latter appears to be the more popular option at present. Nevertheless, this form of review is not as novel as it sounds: the European Court of Human Rights, as well as constitutional courts in Germany, Belgium, Israel, South Africa, and Colombia, for instance, have all, through different doctrinal means, relied on the quality of the legislative debate or consultative process to intervene and strike down laws.Footnote ⁸³

The most notable case in this area is arguably Hirst (No 2), where the Grand Chamber found that the UK government’s “general, automatic and indiscriminate” ban on prisoners’ voting violated the European Convention on Human Rights’ provision on free elections.Footnote ⁸⁴ Arriving at its decision, the Grand Chamber noted that there was “no evidence that Parliament [had] ever sought to weigh the competing interests or assess the proportionality of a blanket ban on the right of a convicted prisoner to vote.”Footnote ⁸⁵ Another exemplar is the South African case Doctors for Life.Footnote ⁸⁶ The South African Constitutional Court decided that the government has a duty to facilitate public involvement in the law-making process. Determining whether the government had acted reasonably to discharge this duty, the court examined the nature and importance of the law in question, as well as its impact on the public.Footnote ⁸⁷ Practical concerns, such as saving time or money, were not accepted by the court as legitimate excuses.Footnote ⁸⁸ “What is ultimately important is that the legislature has taken steps to afford the public a reasonable opportunity to participate effectively in the law-making process,” the court wrote.Footnote ⁸⁹ A similar approach can be found in the Colombian constitutional jurisprudence, where a “minimal public deliberation” is required in order to justify deference to the government.Footnote ⁹⁰ A lack of engagement with the interests of the rights-holders, as evidenced by the congressional record, was used by the Colombian Constitutional Court to justify striking down the law in question.Footnote ⁹¹

The political branches in hybrid regimes do not always rubber-stamp legislation, but weak democratic accountability gives good reason to question their decision-making processes. Semi-procedural review promotes deliberative and responsive decision-making. Regardless of the precise doctrinal vocabulary used, the approaches adopted by the courts surveyed ask similar questions, including: whether the authorities thoroughly examined alternative choices, whether lawmakers spent sufficient time and effort reviewing relevant options, whether rights-holders were represented and consulted, whether their views were engaged, and to what extent are those impacted by the law in question were given an opportunity to participate in the decision-making process. These questions are informed by democratic principles such as democratic participation, democratic deliberation, and democratic representation. Courts are developing ways to improve this approach, for example, by proposing minimum standards and experimenting with more dialogic remedies that seek to work along with the political branches. Bar Siman Tov has suggested that courts should focus on ensuring “a minimal level of deliberation” and the “possibility for participation.”Footnote ⁹² The ultimate goal is not to replace the judgment of the political branches, but to increase the transparency of the political process and weed out substantive flaws and dubious intentions.

Semi-procedural review comes with undeniable costs. It may increase the complexity of cases, with judges having to spend longer examining legislative materials. Some may be worried about a court’s lack of expertise. However, courts are accustomed to examining and referring to legislative materials given that they are routinely asked to ascertain the legislative intent of the law. Moreover, there is a growing body of comparative jurisprudence for courts to learn from. Courts already have the analytical tools to apply and hone this technique. Echoing the conclusions of Liora Lazarus and Natasha Simonsen, the democratic gains realized by introducing the quality of democratic deliberation as an evaluative criterion outweigh the implementation considerations that others might have.Footnote ⁹³ This is especially the case in a hybrid regime, where political rights are weakly protected and political processes deliberately undermine representative and deliberative values.

4.3.3.1 A Second-best Participatory Channel

As a participatory channel, the legal process is limited in many ways. To activate the legal process, one must become a claimant by framing the grievance as a right and finding the appropriate cause of action. The political message the claimant wishes to make may be distorted or diluted as a result of being reformulated as a legal claim. The claimant may also need the assistance of lawyers to translate a political claim into a legal one. Aside from the gap in expertise, there is also a financial barrier. In many jurisdictions, litigation can be costly. On top of lawyers’ fees and the costs of case preparation, one might have to also pay for the legal costs of the adversary (especially in common-law jurisdictions). Making oneself heard through the legal process can consequently be an expensive endeavor, and only those who can overcome these barriers can participate in the legal process. Accordingly, some might argue that the legal process is self-selecting as it only represents the voices of the wealthy. Finally, due to court backlogs and a high caseload, the legal process in some jurisdictions can be very slow and may not be as flexible as more traditional channels for political participation in adapting to changing circumstances.

Consistent with the theme of this chapter, the argument here is a second-best one. As I made clear at the beginning, the idea here is not for the legal process to replace or replicate the traditional avenues of participation, but to complement them. This complementary effect is especially valuable in a hybrid regime given the lack of participatory opportunities to begin with. For some constituents, the participatory role is more accessible than the political branches of government, and provides a rare opportunity for these social groups to express claims that compete with or counter the regime’s. While the legal process is not without its challenges, the hostility posed by the incumbent government through the political channels may be absent from the legal process. The court is not a democratic forum, but a court can realize some of the participatory values that are typically instantiated through the political branches. A claimant enjoys a right to participate in the legal process, and he or she can use the legal process in ways that resemble a formal political channel. The legal process reveals and/or amplifies expressions that are left out in the political process. Assuming that the claims are framed properly in court, the government is forced to acknowledge the existence of different political ideologies and kinds of reasoning, and address them with the level of respect they deserve by defending against these claims with accepted modes of legal argumentation and facts.

This role, I emphasize, does not depend on the substantive outcome but on the potential of the legal process to descriptively represent different voices.Footnote ⁹⁸ Though the law might ultimately be on the government’s side, the legal process can, at the very least, provide a platform for views that would have otherwise been ignored or trivialized by the incumbent in the political arenas. The monopolization of “truth” is one of the most effective ways to maintain authoritarian control. Courts counter this Orwellian nightmare by allowing the people to challenge the incumbent regime’s claims. The market of ideas theory posits that the “truth” will reveal itself so long as voices within society are allowed to compete freely. The “truth” is not determined by a single arbiter such as a court, but rather by the political market, that is, the people. Courts facilitate the revelation of the “truth” by making the public aware of the lost voices and respecting these voices through formal recognition. These voices, institutionalized by the adjudicative process, may destabilize the dominant narrative so carefully curated by the regime. The court enriches the democratic space by surfacing views that are suppressed or hidden by the authoritarian.

4.3.3.2 Overcoming Barriers

Furthermore, the limitations identified so far do not render the participatory role obsolete. The fact that a political claim needs to be translated into a legal claim is something that can and is often overcome by litigants in authoritarian regimes, as evidenced by how legal mobilization movements are prevalent in both common-law (such as Hong Kong, Pakistan, and Uganda)Footnote ⁹⁹ and civil-law (such as Russia, Ukraine, and Turkey) authoritarian jurisdictions.Footnote ¹⁰⁰ Many lawyers in these jurisdictions are willing to take on public-interest cases at a significantly lower cost or even on a pro bono basis. It is not uncommon to find lawyers leading opposition movements and formulating political and legal strategies to challenge the incumbent. Creative solutions have also been devised to help raise funds for litigations. Aside from the more traditional methods such as forming political parties and lobbying private donors, opposition in jurisdictions such as Russia, Ukraine, and Hong Kong have experimented innovatively on online crowdfunding to finance political campaigns as well as defense and public-interest litigation.Footnote ¹⁰¹

By controlling the fluidity of legal traffic, courts have the tools to mitigate the aforementioned challenges as well. Generally, access to justice rules and constitutional rights are judicially enforced and tend to be malleable. A generous interpretation may well expand this alternative space for public participation. Article 184(3) of the Pakistani constitution provides the Supreme Court with original jurisdiction to take up cases of public importance and related to the enforcement of fundamental rights. This provision offers considerable room for legal interpretation. The power of original jurisdiction, or also known as suo moto actions, has been interpreted broadly, especially during the Chaudhry court era. Chaudhry’s more progressive use of suo moto actions provided “direct” and “faster” access to justice to “the most underprivileged segments of society.”Footnote ¹⁰²

The Ugandan courts, in contrast, adopted a more cautious and gradual approach to expanding the accessibility of the courts. The infamous Rule 4 of the Constitutional Court Rules (1996) provided that a petition must be filed within thirty days of the alleged constitutional breach. Important constitutional challenges in the earlier days had been time-barred by the thirty-day rule.Footnote ¹⁰³ The justices themselves noticed the “irony” of this: that even applicants involved in a contractual breach or a tort action had “far more time to bring [an] action” than in a constitutional breach.Footnote ¹⁰⁴ In around half a decade, the courts fixed the problem in incremental fashion, first by construing that the thirty-day period commences after the claimant perceives the alleged breach,Footnote ¹⁰⁵ and finally declaring that the rule violates the right of access to the constitutional court.Footnote ¹⁰⁶

The attitude of the Hong Kong courts is similarly liberal when it comes to legal access rights. To establish standing in judicial review in Hong Kong, one must demonstrate “sufficient interest” in the disputed matter. Courts generally give this requirement a broad interpretation: an applicant need not necessarily be the aggrieved person directly affected by the policy or decision to qualify for standing. In the absence of an obvious or direct interest, courts have also granted standing when the proper context arises.Footnote ¹⁰⁷ Relaxing access norms invites a broader range of individuals and groups to make use of the legal process. A less rigid understanding of rights reduces the difficulty of translating a political expression into a judicially enforceable claim.

4.3.4.1 Representation-reinforcing: Ely

In Democracy and Distrust, Ely identifies minority discrimination as one of the most notable forms of political malfunction occurring in the United States at the time he was writing, and devotes one whole chapter to explaining how process theory can facilitate the representation of minorities. He explains that political malfunctions can occur because of concentration of powers in the majority groups. In these circumstances, minority groups cannot truly protect themselves even if they are guaranteed an equal vote.Footnote ¹¹⁰ His proposal focuses on unconstitutional motives. That is, laws that are passed with illicit motives or impermissible reasons should be prohibited. His concern is not with the substantive benefits brought upon by a law or policy, but the reasons for depriving a certain group of their entitlements.Footnote ¹¹¹ He acknowledges the forensic difficulties of finding illegitimate motives (such as political representatives may not be open about their motivations), but argues that motives can be inferred from impact and pattern.Footnote ¹¹²

A main challenge of applying Ely’s approach is correctly identifying the particular social groups that are worthy of extra judicial protection. Unconstitutional motives, he argues, can be more easily ascertained by applying the doctrine of suspect classifications.Footnote ¹¹³ What this means is that the government will bear a higher burden of proof, or be subjected to more rigorous scrutiny, if the law or policy in question is directed against a suspect class or group. Common standards for identification at the time included, the discrete and insular minority approach, the historical discrimination suffered by the group, and the immutability of the group’s defining trait. Arguing that those standards are insufficient, he identifies “stereotyping” as more on point.Footnote ¹¹⁴ Not all forms of stereotyping are impermissible, as stereotyping can simply be a form of generalization. The kind of stereotyping he has in mind is one that results in a significantly higher chance of legislative misapprehension.Footnote ¹¹⁵ This kind of stereotyping is more likely when the stereotyping is one that “serves the interests of the decision-makers.”Footnote ¹¹⁶

4.3.4.2 Majoritarian Bias or Neglect: King

King has sought to refine Ely’s approach by proposing the “particularly vulnerable to majoritarian bias or neglect” test.Footnote ¹¹⁷ He argues that the unconstitutional motivation standard sets too high a bar, and that Ely fails to address subtler instances of discrimination, such as neglect.Footnote ¹¹⁸ To address these concerns, he suggests that strong judicial restraint would be inappropriate when the claimant is from a group that is particularly vulnerable to majoritarian bias or neglect. A group is a vulnerable one if it is “at substantial risk of bias or neglect.”Footnote ¹¹⁹ This naturally excludes minority groups such as corporations, which might be objects of majoritarian bias but are not subjected to the “harm” of bias. King departs from the unconstitutional motive requirement and relies on majoritarian bias instead. This is a broad notion that describes “a form of proactive hostility towards the group, or of disadvantage created by unfair preference for the interests of the majority.”Footnote ¹²⁰ By adding majoritarian neglect, King accounts for the possibility of harm caused not by proactive prejudice but by an inertia to disregard as result of the majority’s position.

King is aware of the challenges of identifying the group in court but argues that these can be addressed. Courts today have ready access to a wide range of materials to help identification, such as government reports, social science studies, and opinions of international and civil society organizations.Footnote ¹²¹ He also accepts that proving majoritarian bias involves some level of substantive discussion, but his argument is a circumscribed one that focuses on “group or status-based disadvantage.”Footnote ¹²² Errors may arise in applying the test, but he argues that, with an appropriate degree of restraint, the error costs can be kept low while reaping the modest benefits offered by courts.

4.3.4.3 Quasi-representative Role: Incumbent Bias or Neglect

While King was addressing the adjudication of social rights in a democracy, his approach can be altered in ways to reinforce political representation in a hybrid regime.

Building on King’s approach, the argument here is that: (1) if the claimant is from a group that is particularly vulnerable to incumbent bias or neglect, and (2) if that bias or neglect can be linked to the law or policy in question, (3) legal tests that are more favorable to the litigants should be adopted. This approach provides extra legal protection to social groups that are vulnerable to authoritarian bias or neglect in a hybrid regime. As mentioned, this approach resembles some of the techniques under the interpretative role, but its benefits are directed toward disadvantaged social groups in a hybrid regime.

The first step in adapting King’s test to the circumstances of hybrid regimes is to recognize that the concept of majoritarian bias is of limited relevance to a hybrid regime, because the hostile group is the incumbent. It is hard to classify whether an incumbent is a majority or minority group, as electoral results are distorted due to unfair elections. Though it is possible, or even probable, that an incumbent possesses majority support, that is not always the case, hence the concept of majoritarian bias rarely applies in the current context.

Instead, the concern is incumbent bias. We have already discussed the biases generated by a lack of electoral accountability and democratic oversight. It follows that the typical victims of incumbent bias are not necessarily minority groups. Both majority groups (such as the opposition) and minority groups (such as religious groups and sexual minorities) can be targeted by the incumbent if these groups, because of their ideologies or organizational capacity, pose a threat to the incumbent’s power.

Neglect is an equally relevant issue in a hybrid regime. Elections are used by authoritarian incumbents to better gauge public opinion and social sentiment, but elections are poor information-gathering devices if they are unfair and self-selective. A lack of electoral connection to the people means the incumbent may be blindsided by or ignorant to what is happening in society and the views of the less prominent social groups. Unlike the bias situation described in the previous paragraph, neglect here is an unintentional consequence of unfair elections.

Proving (the risk of) harm caused by bias or neglect is probably easier in a hybrid regime due to the severity of the bias or neglect. In a democracy, minority groups are at least able to participate in an open political process. They might not be able to defeat majority groups with entrenched powers, but they can at least compete in the political process. In a hybrid regime, oppressed groups have limited opportunities for political participation, and lack the opportunities to protect themselves through the political channels that exist in a democracy. Given that the views of the incumbent can sometimes go unchecked and unchallenged in a hybrid regime, there is an even greater chance and a potentially higher degree of legislative misapprehension.

A possible response here might be that a lack of democracy might be blamed for many things, and this might give courts a free pass to wield broad judicial review powers. This scenario is not necessarily problematic as long as a court’s intervention in each instance can be justified. Additionally, establishing linkage between the harm done to a minority group or groups and the incumbent’s bias or neglect will be difficult if the incumbent has engaged in responsive law-making. While some social groups may not have a say through the ballot box, if the incumbent is willing to, there are devices that function as proxies for elections that enable more responsive and representative law-making. Like the political branches of government in democracies, those in hybrid regimes can make use of consultation committees and public opinion polls to compensate for the information loss that results from a lack of free and fair elections. Expert reports and academic research would also enable better policymaking. A committed incumbent has the capacity to make good policies that are respectful of different constituents, even if he or she is not democratically elected. The fact that a disenfranchised social group is dissatisfied with a policy in this instance does not necessarily justify judicial intervention, as it could be that the incumbent has already proven that it made reasonable efforts to engage with impacted constituents and accurately balanced competing interests. Good policies can occur in nondemocratic settings. Proving linkage between (the risk of) harm and incumbent bias is ultimately a contextual and evidential question.

A final important difference between my approach and King’s concerns the implications of our tests. Under King’s approach, the government would be subjected to a higher standard of proof if majority bias or neglect is proven. My approach has wider implications. If a claimant can prove authoritarian bias or neglect and its linkage to the law or policy in question, judges should consider all sorts of ways to support them in court. This includes not only adjusting the burden of proof, but also providing greater legal protection in other areas that the court has control over, such as standing, remedies, legal procedures, costs, and so on. In more concrete terms, this may involve, for example, adopting a higher degree of scrutiny, according less deference to the government, a more flexible application of standing rules, the issuance of stronger remedies, greater leniency toward the claimant with regard to court deadlines, and cost judgments that are more sympathetic to the claimant’s motivations. The quasi-representative role alters the power balance in favor of those who are handicapped in the political arenas.

4.3.4.4 Politically Representative Effects?

Earlier, I mentioned that one reason why this role is termed “quasi-representative” is because the approach proposed may sometimes create decision-making patterns that seem politically representative. This is due to the quasi-representative role potentially benefiting vulnerable groups in a hybrid regime who are majority groups or represent interests that enjoy majority support.

An illuminating example is the spate of cases in Hong Kong relating to LGBTQ rights. In Hong Kong, the community is generally in favor of LGBTQ rights. Studies and surveys in the past decade consistently find that a majority of people support the protection of the LGBTQ community.Footnote ¹²³ LGBTQ rights in Hong Kong are considered more liberal than in many other Asian societies with similar social underpinnings, such as China and Singapore.Footnote ¹²⁴ Hong Kong’s courts, as opposed to the political branches of its government, have been a key engine for these developments.Footnote ¹²⁵ Despite popular support for the development of LGBTQ rights, the pro-incumbent parties’ voter base has conservative inclinations. Because of pro-incumbent parties’ dominance in the legislature and the systemic political advantages they enjoy, ordinary political channels were never productive avenues for developing LGBTQ rights. There was not an openly gay lawmaker in Hong Kong until 2012, and there was, and is, little incentive for the incumbent’s allies to invest in these issues.

In contrast, Hong Kong’s courts appear to have tracked social sentiment and expanded the right to equality to include the prohibition of discrimination on the ground of sexual orientation. From decriminalizing buggeryFootnote ¹²⁶ and legalizing transgender marriageFootnote ¹²⁷ to the recognition of marriage or civil partnership status of same-sex couples for dependent visa purposesFootnote ¹²⁸ and the extension of spousal benefits to same-sex married couples,Footnote ¹²⁹ the signs for social change through the legal process have been very promising. The local community, international organizations, and multinational corporations have celebrated many of these decisions.Footnote ¹³⁰

I am not arguing that the Hong Kong courts have decided these cases based on public opinion. Their judgments are filled with elaborate reasoning supported by case law from all around the world. What is interesting, though, is that the courts have afforded a greater degree of judicial protection to the LGBTQ community by explicitly recognizing them as a protected class. This is in stark contrast to how the incumbent has treated these groups in the political process, where they were given limited representational opportunities. Most intriguing is the fact that the courts were actually more majoritarian on this issue than the political process, as sexual rights issues tend to have the backing of the majority of Hong Kong people. This represents one of many cases in Hong Kong where the courts appear to have followed public opinion.Footnote ¹³¹

A similar pattern can be found in the constitutional development of women’s rights in Uganda. Partly due to Uganda’s colonial history and partly due to local customs, gender equality has not been reflected in many of the laws of the country.Footnote ¹³² Because of its “non-democratic framework,” as Erica Bussey observes, “the political system in Uganda is structured in such a way that there is little opportunity of full and free debate about any controversial political issue.”Footnote ¹³³ As a result, the “only place” where “issues of national importance” can be debated is the courts.Footnote ¹³⁴ Accordingly, women rights organizations such as the Uganda Association of Women Lawyers and Law and Advocacy for Women in Uganda have leveraged the legal process to fight for gender equality.Footnote ¹³⁵ Relying on broadly framed constitutional provisions, the Constitutional Court and the Supreme Court of Uganda have struck down legislation that treated women unfairly on issues of divorce, succession, and adultery, and ruled that the practice of female genital mutilation and the government’s nonprovision of basic maternal healthcare were unconstitutional.Footnote ¹³⁶ Again, these cases have striking representational overtones as they are reflective of the fundamental rights and interests of the entire female population of the country. The quasi-representative role does not require courts to follow public opinion, but may create an image of a politically representative court because of the extra legal protection afforded to vulnerable groups who are sometimes representative of majority interests.

4.3.5.1 Principles in Applying the Educative Role

The examples given so far contain some lessons for how a constitutional court can play this educative role effectively. First and foremost, the court needs to be aware of and sensitive to its audiences. As Mark Galanter observes, “[the outward influences of a court] cannot be ascertained by attending only to the messages propounded by the courts. It depends on the resources and capacities of their various audiences and on the normative orderings indigenous to the various social locations where messages from the courts impinge.”Footnote ¹⁵⁵ Given this role’s emphasis is on its expressive nature and the communicative resources it offers, a constitutional court needs to anticipate who will be reading the judgment, their motivations, and potential responses. The coming chapter elaborates further on the importance of courts remaining sensitive to their audiences.

Second, a constitutional court must closely attend to the language it uses. Legal decisions that are crafted in overly technical or open-ended ways invite competing interpretations. Political actors seeking distortion may claim a different understanding. A court cannot simply reissue another decision to clarify what it meant. If there is a clear message or tone that a court wishes to convey, it should aim to contextualize its message and minimize room for distortion.

Third, and most importantly, a constitutional court needs allies outside the courtroom to facilitate its educative role. Galanter’s observation above reveals an inherent limitation of this role: the creation of meaning is a dynamic process, and courts cannot determine public meaning on their own, at most being able to shape and influence its formation. A court can minimize distortion through careful writing, but how a court’s behavior and decisions are interpreted are ultimately left to the audiences external to the courtroom. In most cases, however, decisions do not reach audiences directly. More commonly, “sophisticated intermediaries”Footnote ¹⁵⁶ such as the press, professional organizations, and the academy interpret the decisions and provide a more layperson-friendly narrative. These intermediaries help “translate” the law and amplify the decision. It then becomes important for the court to nurture friendly relations with these intermediaries, as they directly affect a constitutional court’s constitutive power. They are not simply transmission vessels, but powerful middlemen who can apply interpretive frames to induce certain kinds of social behavior. The state may seek to undermine the court and its allies by co-opting media outlets, but a court can also enhance freedom of information and other organizational rights to counter authoritarian intermediaries. A court needs trusted mediums, and trusted mediums need the constitutional protection of the court. A symbiotic relationship between the courts and its intermediaries is essential to the effective implementation of the educative role. In the penultimate chapter, we will examine more closely the ways in which courts can build relationships with allies outside the courtroom.

Last but not least, similar to what was argued under the participatory role, it is important for a court to remain accessible. This is not because of the intrinsic value accorded by this alternative participatory channel. Instead, a court must be accessible so that its political allies can rely on the legal process to disseminate their messages. Some of the educative effects of a court already discussed are impossible if the legal process is too restrictive. A court can also set its own agenda in this regard by exercising its discretionary power regarding which kinds of cases get through and when to hear them.