3.1 Introduction
The chapter situates constitutional courts within a hybrid regime context. It presents three models of what courts could be like in hybrid regimes. The first two are what I call the Pessimistic Model and the Optimistic Model. They represent two different bodies of literature and two contrasting views of constitutional courts in hybrid regimes.
The chapter begins by examining the Pessimistic Model in Section 3.2. Under this model, a court can do very little to resist an authoritarian, let alone promote democratic norms. It characterizes a constitutional court as part of the authoritarian hierarchy of a hybrid regime, and views the court as an instrument of authoritarian governance. Those attached to this model are skeptical of whether judicial autonomy can truly exist. The regime chooses to institute and maintain a constitutional court for self-serving reasons, and the political environment leaves little space for judicial maneuvering.
While this model rightly highlights how a constitutional court is structurally constrained by a hybrid regime, I argue that the Pessimistic Model tends to overstate the degree of actual control a hybrid regime has over a constitutional court. I highlight the existence of several conditions conducive to the development of judicial autonomy and judicial power that are a consequence of how hybrid regimes are configured.
Section 3.3 proceeds to discuss a more encouraging depiction of a constitutional court. Those who subscribe to the Optimistic Model believe that a court can bring transformative changes to a hybrid regime. It views a constitutional court as the guardian of liberal democratic norms, possessing almost mystical powers that enable it to bring democratic change to a hybrid regime. The Optimistic Model stands for a body of literature that is less concerned with how authoritarian conditions impact a constitutional court, and more with constitutional court’s moral responsibility under a hybrid regime.
This model rightly raises important questions about the normative role of a constitutional court in a hybrid regime, and challenges some of the assumptions about constitutional theory that are typically taken for granted in liberal democratic contexts. I argue, however, that the Optimistic Model overestimates the capabilities of a constitutional court. It pays insufficient attention to the prudential and institutional implications of a hybrid regime’s political circumstances for the court.
While each model captures distinct elements and raises important issues regarding constitutional courts in hybrid regimes, each has gone too far. Drawing on the lessons learnt from the analyses of the previous two models, Section 3.4 concludes by presenting a more attractive model: the Realistic Model. By “realistic,” I do not mean that courts in real life correspond more closely to this model, although it is informed by a nuanced take on judicial-political dynamics in a hybrid regime. Rather, under this model, a constitutional court aspiring to take up meaningful roles in a hybrid regime is a realistic possibility. The Realistic Model serves as the basis for our theoretical inquiries in the coming chapters.
3.2 The Pessimistic Model
The origin of the Pessimistic Model can be traced back to several decades ago when constitutional courts outside democracies were seen as insignificant institutions. This stems from a widely held assumption that judicial politics is conditioned by regime-type politics.Footnote 1 Operating in an environment where power was concentrated in the hands of the incumbent, constitutional courts in authoritarian polities were taken as “mere pawns of their rulers.”Footnote 2 After all, it seems logical to suppose that only loyal judges who dare not challenge the ruler could keep their jobs. It was unimaginable for judges to rule against a regime that had power to threaten the judges’ career and personal safety. The historical consensus was that the “judicialization of politics outside democratic polities” was “very unlikely.”Footnote 3 Structurally constrained, constitutional courts in authoritarian regimes were traditionally thought of as being obedient agents of the regime. Anecdotal evidence at the time also seemed to support this view. As Tamir Moustafa observes, “the assumption [that courts in nondemocratic regimes were little more than window dressing for dictators] was so widely accepted that research on judicial politics in nondemocracies was rare prior to the 1990s.”Footnote 4
The literature developed over the next thirty years or so as scholars became more aware of the variations in judicial behavior among nondemocratic regimes. Some courts, in fact, were found to play a central role in authoritarian politics, enjoying substantial powers to decide on megapolitical questions.Footnote 5 There were even courts that successfully challenged and defied authoritarian regimes.Footnote 6
While these more recent studies have significantly advanced debate, many maintain as pessimistic a tone as their predecessors when it came to what courts could do in an authoritarian context. Courts might not be puppets, but they are still largely regarded as authoritarians’ instruments of governance, instituted and maintained for their benefit.Footnote 7 Judicial independence then becomes a function of the extent to which courts perform certain functions on behalf of the regime. For example, having a constitutional court might bolster the legitimacy of the regime,Footnote 8 attract investors,Footnote 9 help sideline opposition by enforcing oppressive laws,Footnote 10 or preserve hegemonic powers more generally.Footnote 11 These explanations focus on why incumbents are incentivized to have semi-independent courts.Footnote 12 Accordingly, the Pessimistic Model can account for why we might occasionally observe successful judicial challenges to incumbent rule in hybrid regimes. In fact, consistent with the logic of these endogenous explanations, some might even argue that these challenges are sometimes tolerated because they help improve the image of a hybrid regime as they are interpreted as evidence of political contestation.
As an instrument of the incumbent, the court continues to be subjected to its control, with seemingly few limits over how that control is exercised. The literature on court-packing identifies a wide arsenal of tools to discipline a judiciary when the costs of a defiant court outweigh its potential benefits. Some of these techniques are supplied or authorized by the constitution, hence appear soft and lawful to maintain public optics. For example, changing the composition of the court by adjusting the retirement age limit can serve to remove problematic judges without making that objective explicit. Similarly, weakening the judicial support structureFootnote 13 and changing access to justice rulesFootnote 14 are attacks, though not directed at the judiciary, which can prove powerful in limiting a court’s effectiveness.
The Pessimistic Model, as we can see, depicts a highly constrained constitutional court. This is perhaps unsurprising, as much of the literature on authoritarian judicial politics focuses on how regime-type politics influence judicial behavior. If the premise is that the strength of a court is associated with regime-type and that governmental powers are centralized in nondemocratic regimes, defeatist conclusions about the democratic potential of constitutional courts in hybrid regimes are to be expected. Judges are thought to be “products of the political divisions and the processes by which they are selected.”Footnote 15 The judiciary is part of the government structure and necessarily subordinate to the regime. It follows that it is the incumbent that decides the degree of freedom enjoyed by the judges. The power imbalance between the courts and the regime implies that the former are always at the mercy of the latter. The fact that the courts do not advance the authoritarian’s interests in a straightforward manner may explain occasional outbursts of judicial defiance. For instance, a court that stabilizes the regime by channeling conflicts may sometimes open space for opposition challenge.Footnote 16 Nevertheless, the Pessimistic Model maintains that these instances of judicial defiance are negligible or only mirages that are carefully engineered by the regime for its own benefits. On this view, courts are ultimately inconsequential actors.
This model exposes the complex judicial political dynamics underlying authoritarianism. It highlights the motivations and survival imperatives of an authoritarian, as well as how a court fits into the authoritarian’s agenda. However, the Pessimistic Model tends to overstate the power and efficacy of a hybrid regime. That is, it gives insufficient attention to the political costs incurred by the incumbent from interfering with and attacking courts. Behind this model lies the questionable assumption that hybrid regimes are almost always able to successfully realize their intentions. An authoritarian regime is not a monolithic entity. This is especially true for a hybrid regime, which is characterized by ideological tensions and fragmented politics. Individuals who make up the incumbent regime may differ in their intentions and expectations of courts. Some members of the ruling coalition might value the reputational gains of an independent court and tolerate greater judicial autonomy, while more domineering elites may demand direct control over courts. Hence, even those in power may disagree over the role a court should play and the appropriate degree of influence political elites should wield over it. The court may also serve as a forum for disputes within the elite. Even if a regime can express a unified intention, it does not mean it can act at will. Like any other collective entity, a hybrid regime is subject to, among other things, institutional rules (such as internal decision-making procedures), internal resistance (such as infighting among the authoritarian bloc), external resistance (such as risk of sanction from foreign states), the risk of public mobilization, and electoral pressure in states with at least nominally competitive elections.Footnote 17 Many of these political constraints are not always as principled or ideal as constitutional rules, but they are effective to the extent that they can restrict the authoritarian’s capacity for action. In economics terms, incumbents would have to incur “political transaction costs” to constrain courts.Footnote 18 Sanctioning a court involves bargaining, coordination, enforcement, and informational costs for the regime, all of which impair the regime’s ability to discipline courts. The higher the political transaction costs, the more likely we will find an independent and strong constitutional court in a hybrid regime.Footnote 19 Last, one must not forget that the regime is not infallible. It can make mistakes, for example, by appointing judges who turn out to be less loyal than the incumbent expected. Iftikhar Chaudhry in Pakistan voted in ways that aligned with the incumbent before he was appointed as the chief justice, and Geoffrey Ma, the second chief justice of Hong Kong, represented the government in some of the landmark constitutional cases in Hong Kong before joining the bench. It is fair to say the Chaudhry and Ma courts were not as loyal to the incumbents as originally expected.
What I just described does not necessarily contradict the Pessimistic Model. There is a power imbalance between the regime and the court, and the regime’s intentions and expectations shape the behavior and capacity of a court. What tends to be missed in these discussions, though, is the fact that a hybrid regime often cannot act exactly as it wishes. The regime’s agency is shaped by a multitude of internal and external factors that diminish its ability to control the court, and may provide the time and space for a constitutional court to pursue its own agenda effectively.
3.2.1 Features of a Hybrid Regime That Support Judicial Autonomy
The authoritarian tendency of the hybrid regime is not the sole factor conditioning the identity of the constitutional court. There are also features that create conditions conducive to the development of an autonomous and strong constitutional court. Some features derive from the fact that the high political friction present in the environment of a hybrid regime impedes the regime’s ability to act and react. For example, the friction often resurfaces in the community outside of that constitutional order, bringing social volatility to the hybrid state. Other features exploit the regime’s incentives and motivations to institute a court in the first place. For example, the need to attract investors is highlighted as a factor conducive to an independent judiciary in authoritarian contexts. Focusing on the Egyptian Constitutional Court, Moustafa argues that the regime relies on the judiciary to promote economic growth.Footnote 20 The need to maintain a stable and prosperous economy may create spillover effects that contribute to judicial independence. To a certain extent, his theory also applies to Hong Kong, as undermining judicial independence risks discrediting the regime’s reputation as an international financial center. Similarly, a number of commentators attribute judicial independence in Uganda to pressure from international and foreign donors.Footnote 21 Rachel L. Ellett argues that the incumbent depends on development aid to pay off the regime’s allies.Footnote 22 Maintaining judicial independence is one important precondition for aid. The regime risks losing an important source of funding if it persistently attacks the courts whenever they issue decisions that are against the government.
To further illustrate how a hybrid regime can actually empower a constitutional court, I identify three features of hybrid regimes that facilitate the development of judicial autonomy and judicial power: semi-competitive elections, political fragmentation, and a claim to democratic legitimacy. The aim is not to provide an exhaustive list of supportive factors, especially since there are possibly many context-specific conditions applicable to particular kinds of hybrid regimes that can equally, if not more significantly, support a constitutional court, such as the needs to attract foreign investors and maintain development aid as I just described.Footnote 23 Instead, the hope here is to highlight conditions that stem from the unique political configuration of hybrid regimes.
3.2.1.1 Semi-Competitive Elections
The electoral logic of judicial independence suggests that the political uncertainty generated by elections prompts political actors to adopt an impartial arbitrator.Footnote 24 Under electoral uncertainty, political actors from different factions have a reasonable chance of defeat. Uncertainty acts almost like the veil of ignorance, enabling political actors with divergent intentions to agree to adopt independent courts. The electoral logic rests on the self-interested nature of political actors and their inability to accurately predict where their interests are going to lie after an election. An independent court is a form of political insurance for conflicting parties that serves as a hedge against future risks. This hypothesis predicts that the higher the degree of electoral competition, the more likely an autonomous court will emerge.
The electoral logic of judicial independence was initially tested in consolidated democracies such as the United States and Japan, as well as new democracies.Footnote 25 The theory was thought to be inapplicable to nondemocratic regimes because of the lack of electoral competitiveness.Footnote 26 One of the problems with this assumption stems from a dichotomous understanding of regime-types, and fails to recognize that elections in some authoritarian regimes can still be sufficiently meaningful and autonomous. The degree of electoral competitiveness in a hybrid regime may be sufficient to activate the electoral logic of judicial independence.
Brad Epperly’s work confirms the relevance of the theory to hybrid regimes.Footnote 27 Motivated by the need to move away from dichotomies, Epperly’s large-N study finds that the electoral logic can apply to nondemocratic regimes, and that autocracies that are more electorally competitive tend to have more autonomous courts than those that are politically closed. In other words, moderate levels of political competition result in moderate levels of judicial autonomy. Explaining this phenomenon, he argues that the electoral logic of judicial independence is especially relevant to hybrid regimes because of the autocrat’s fear of losing power. As the previous chapter highlighted, elections in hybrid regimes are unfair but sufficiently contested to create uncertainty for the incumbent. Semi-competitive elections increase the probability of the authoritarian losing power in elections. This electoral uncertainty is itself a reason to confer autonomy to courts. More importantly, the risks of losing power are significant for an authoritarian government, which is likely to have accumulated a long list of political enemies during its reign. Unsurprisingly, more than half of all post-tenure authoritarians have been punished, with their political rights stripped, property confiscated, and personal security jeopardized.Footnote 28 As a political insurance, an independent court, as he finds, provides the necessary protection to minimize the risk exposure of an authoritarian by safeguarding rights. The anticipated cost of defeat at the ballot box (i.e. the chance of defeat as well as the risks associated with defeat) incentivizes the authoritarian to confer moderate levels of autonomy and power to courts in hybrid regimes.
3.2.1.2 Political Fragmentation
Political scientists posit that divided politics creates opportunities for courts to develop judicial autonomy and judicial powers.Footnote 29 Divided politics, or political fragmentation, refers to the number and nature of veto players involved in a decision-making process. Veto players are actors whose consents are necessary to change the status quo.Footnote 30 Veto players can be institutional or partisan in nature.Footnote 31 Institutional veto players are assigned by the constitution, whereas partisan veto players are outcomes of organic politics. For example, the three branches of government are usually institutional veto players under the separation of powers. In legislatures where multiple majorities are possible, the different majorities are partisan veto players. The more veto players’ consent is required, the harder it is to alter the status quo. The nature of the veto players also matters: the more ideologically dissimilar the veto players are, the harder it will be for them to achieve consensus or compromise.Footnote 32 A higher degree of political fragmentation makes it harder for all veto players to reach a consensus to change the status quo. Court-curbing actions – as with any other legislation, policy, or constitutional amendment – are only possible when political actors with veto powers can agree. The difficulties of sanctioning courts in divided politics create a wider space for judicial maneuvering. The theory predicts that a politically fragmented environment is more likely to generate independent judiciaries and durable judicial decisions.
The ideological tension between democracy and guardianship described in the first chapter manifests at all levels of a hybrid polity, including the governing bloc and civil society.Footnote 33 This ideological tension creates political fragmentation across different levels of society. With little in common between the rivalling theories of democracy and guardianship, the ability of a hybrid regime to ensure ideological homogeneity must be weak. Bureaucracies in Pakistan and Hong Kong, for example, have openly resisted the regime and ideologically differentiated themselves from their rulers on several occasions, demonstrating the kinds of internal challenges these regimes must overcome when punishing defiant courts.Footnote 34 An authoritarian regime can use top-down techniques to politically indoctrinate elites and state agents, but these techniques are difficult to impose in a hybrid regime, given its more decentralized structure and its need to uphold political pluralism, at least superficially.Footnote 35 The regime’s inability to maintain ideological coherence results in more space for judicial maneuvering.
The regime and the opposition’s struggle to compete for popular support exacerbates the political fragmentation of a hybrid regime.Footnote 36 Alliances with elites and the regime’s organizational power are unsettled by opportunities for elites to join the oppositional front.Footnote 37 Normally, elite defection is unlikely if the ruling party is strong and/or the opposition party is weak. The power balance between the regime and the opposition can shift, however, and the opposition in a hybrid regime can sometimes pose a credible threat, creating attractive opportunities for elites seeking to defect. Or, on other occasions, elites who benefit from abandoning the regime may form their own party, causing infighting that threatens the integrity of the governing coalition.
Following political fragmentation theory, a hybrid regime court is afforded more leeway to exercise judicial powers given the fragmented nature of a hybrid regime. Since conflicting state ideologies permeate all levels of a hybrid regime society, implementing court-curbing actions can be challenging, as the regime needs to convince many ideologically dissimilar veto players within and outside the governing bloc.Footnote 38 As a fragmented state generates more political deadlocks, it follows that there is greater demand for judicial resolution of political questions.Footnote 39 A moderately independent judiciary offers a viable alternative for those exhausted by the ineffectiveness of the political arenas, who believe that pursuing a judicial route may result in higher relative net gains. For example, Taiwan entered its hybrid regime era from 1986 to 1996, with electoral politics gradually opening up. Data show that its constitutional court was far more active during this period than previously.Footnote 40 The establishment of an opposition party (the Democratic Progressive Party) while the ruling Kuomingtang split into reformist and conservative factions created an environment conducive to the growth of an assertive constitutional court. Partisan disputes and growing support for constitutional reform resulted in room for judicial autonomy. A notable instance of the Taiwanese constitutional court using an opportunity to resolve a political deadlock to advance constitutional democratic norms was the landmark decision Interpretation No. 261. This signified a break with the state’s authoritarian past and provided the constitutional foundation for the next election and democratic reforms.Footnote 41 Because the incumbent was the dominant party at the time, incumbent infighting also manifested as intra-branch disputes.Footnote 42 This led to a significant increase in the number of separation-of-power cases during the same period.Footnote 43
3.2.1.3 The Democracy Claim
As established in the previous chapter, a hybrid regime likes to call itself a democracy. A hybrid regime will do many things to sustain this claim, from instituting formally democratic elections to learning to speak the language of democracy. One important institution that confers democratic legitimacy on a hybrid regime is the constitutional court. For one, rule of law and judicial independence have become closely associated with democracy. “Democracy clauses” that demand these guarantees are increasingly common in international trade agreements and aid programs.Footnote 44 From policymakers’ perspective, adopting judicial independence is democratically fashionable, and it seems to signal to others the regime’s commitment to bind itself to rules and curb opportunistic behavior. Furthermore, it adds to the competitive image of a hybrid regime. As Raul Sanchez Urribarri writes, a hybrid regime’s “legitimacy and performance resides, to a large extent, on keeping certain contestation arenas open or, at least, preserving the appearance of contestation.”Footnote 45 An active constitutional court that is willing to resist the regime gives the impression that political pluralism exists in a hybrid regime. Maintaining a moderately autonomous constitutional court helps appease dissenting parties as well as foreign and international stakeholders who are committed to democratic norms.
To derive the legitimacy and instrumental benefits of adopting judicial independence, the regime’s commitment to the judiciary must be sufficiently credible. It is one thing to institute a constitutional court and textually guarantee its independence in the constitution, another to actually grant the court the resources and space to perform its duties independently. To function as a legitimizing ideology for a hybrid regime, judicial independence cannot just be an empty expression.Footnote 46 A hybrid regime must substantiate its claim to judicial independence. Citizens and other relevant constituencies need to have reasons to believe that the government has tied its own hands in order for judicial independence to provide the expected stabilizing effects.Footnote 47 “In politics as elsewhere,” Jon Elster writes, “to make a promise and then break it is worse than not making it in the first place.”Footnote 48 Failing to honor judicial independence will be perceived as a breach of trust and is guaranteed to be counterproductive.
An implicit bargain between the regime and the constitutional court emerges here. The regime relies on the constitutional court for legitimacy gains, while the constitutional court can only carry out its duties if the regime exercises self-restraint. To uphold this bargain, the regime needs to “find a balance between keeping effective control of the political space and legitimizing its authority.”Footnote 49 The court must take care not to push its luck too far, else the regime might retaliate in order to preserve its core interests. That said, the regime must tolerate a certain amount of challenge from the constitutional court to show that its intentions are genuine and sincere in order to maintain the impression of a democracy. As mentioned, a judiciary can exploit the regime’s motivation for instituting an independent constitutional court to its advantage. The need to maintain a democratic appearance necessarily limits the court-curbing options available to the regime. In some circumstances, discussed in later chapters, the court can rely on the regime’s democratic claim to hold the regime accountable as well. The implicit bargain between the regime and the court effectively becomes a shield, and an occasional sword, for constitutional courts to make more assertive decisions.
3.3 The Optimistic Model
Under the Pessimistic Model, a court can do little to bring about democratic changes in a hybrid regime. The Optimistic Model envisages a very different court. The Pessimistic Model focuses on the constraining effects of a hybrid regime, while the Optimistic Model starts by considering the moral responsibility of a constitutional court in a hybrid regime. A court, under this model, is held to be a bulwark against authoritarian oppression as well as leading a hybrid regime toward democracy. The court is regarded as the savior of the oppressed, or the “alchemist” that is capable of turning an autocracy into a democracy.Footnote 50
International policymakers, as well as those living in hybrid regime polities, are attached to the Optimistic Model because of the many kinds of injustice they experience or perceive in a hybrid regime. “People demand justice to escape domination,” as Ian Shapiro famously writes.Footnote 51 Frustrated by how the political process favors the incumbent, the public and opposition in hybrid regimes tend to turn to the judiciary for solutions. After all, judges are commonly seen as justice personified, symbolizing fairness and impartiality. The antidemocratic nature of political institutions in hybrid regimes reinforces faith in formally independent judiciaries, and courts are cast as “beacon[s] of hope.”Footnote 52 The appointment of Zühtü Arslan as the president of the Turkish Constitutional Court, for example, was described as a potential “safeguard against autocracy and … a much-needed glimmer of hope for Turkish democracy.”Footnote 53 A prominent Pakistani journalist describes the Chaudhry Supreme Court as “the last station on the line, the only forum capable of providing relief.”Footnote 54 In Hong Kong, some argue that courts are actually better at representing popular will than the political branches.Footnote 55 Writing about post-Soviet states, Armen Mazmanyan notes, “while judicialization is conventionally treated as a counter-democratic practice, in non-consolidated democracies it clearly signals success of democratization.”Footnote 56 The World Bank and other international development organizations project a similar kind of imagery of courts. Rule of law and judicial independence are believed to promote democratic and economic growth. The tremendous faith of international policymakers in the democratic potential of courts is reflected in the billions of dollars spent over the past three decades on legal reform and rule of law projects globally.Footnote 57
The model reflects an aspiration shared by many who live in hybrid regimes, but not many constitutional lawyers have developed these intuitions. Instead, the closest we find to theorizing the views of the Optimistic Model are the discussions in the democratization jurisprudence literature on the role of courts in transitional regimes and new democracies. There are two reasons that might explain this gap in the literature on constitutional theory in authoritarian contexts. As the discussion on the Pessimistic Model illustrates, the first is that authoritarian regimes are traditionally thought of as having eliminated all room for plausible discussion of the democratic role of constitutional courts, and are assumed to be too restrictive for the development of any attractive normative account of constitutional courts. The assumption may hold in a pure authoritarian context, but the moderate levels of judicial autonomy existing in hybrid regimes suggests that normative questions about the democratic role of constitutional courts are worth exploring.
Second, one might assume that what constitutional courts should do in authoritarian contexts is obvious and straightforward: decide against the regime or overturn authoritarian policies. Some scholars may even be tempted to equate an antiregime decision with the advancement of democratic norms. These responses simply restate democratic ideals in the abstract, and/or fail to consider the pragmatic challenges and contextual dynamics faced by a court. Moreover, an antiregime decision does not necessarily promote democracy. Developing meaningful normative guidelines suitable for a hybrid regime political context requires properly accounting for the characteristics of a hybrid regime and the ways in which these characteristics normatively and practically affect a constitutional court.
Given the limited theoretical discussion on the normative role of a constitutional court in an authoritarian context, the democratization jurisprudence literature might offer some insights into how the Optimistic Model can be defended. As that literature speaks to a different political context, any insights drawn should be treated with caution. Transitional or new democracies are characterized by their progression toward consolidated democracy, “inordinate pace of change,” and a “period of intense flux” for constitutional change.Footnote 58 These temporal features are absent in a hybrid regime. Uncertainty over the rules of the game and how constitutional developments will unfold is a hallmark of a transitional regime,Footnote 59 but that level of uncertainty is lacking in a hybrid regime, as transformative changes are not expected within the foreseeable future. Its hybridity persists without a fundamental resolution for a substantial period.
Nonetheless, the incidental fact that some transitional regimes are considered to be or resemble hybrid regimes suggests that the institutional context of the democratization jurisprudence literature is not too dissimilar to that of a hybrid regime. A hybrid regime is analytically distinct from a transitional or new democracy, but they share features that shape constitutional courts in similar ways. Constitutional courts in transitional regimes, for example, have to deal with their authoritarian legacies, while those in hybrid regimes have to manage authoritarian realities.
More importantly, like the Optimistic Model, the democratization jurisprudence literature is interested in the democracy-enhancing prospects of a constitutional court and shares the Optimistic Model’s high hopes for the transformative potential of a court. Marcus Mietzner, for instance, observes, “that constitutional courts can play a positive role in the stabilization of transitional democracies is not a new theoretical insight.”Footnote 60 Francesco Biagi’s recent study of European constitutional courts finds that, in the context of democratic transition and consolidation, “the role played by the constitutional courts is of the utmost importance.”Footnote 61 László Sólyom makes a similar point when he says that constitutional courts are “inseparable from democratic changes.”Footnote 62 Given the similarities in motivations and aspirations, helpful lessons can be drawn from that literature.
3.3.1 Democracy by Judiciary, and Democratic Hedging
This part singles out the works of two authors, Kim Lane Scheppele and Samuel Issacharoff, to illustrate the Optimistic Model. Scheppele cogently defends a provocative idea: that constitutional courts can sometimes be more democratic than the elected branches in new democracies. Likewise, a core argument found in many of Issacharoff’s works is that transitional or young democracies that are under authoritarian threat justify strong judicial intervention. Both Scheppele and Issacharoff’s works are not focused on hybrid regimes per se, even though the political contexts they write about are sometimes substantively similar to hybrid regimes. Reviewing their arguments helps us understand how the Optimistic Model can be theorized. The following paragraphs consider the two authors’ works and extract insights that are relevant for a hybrid regime context.
In Scheppele’s article “Democracy by Judiciary,” she notes that constitutions in many post-authoritarian democracies reflect a substantive vision of democracy.Footnote 63 Haunted by their pasts, these third-wave democracies experience “problems with elections” and “problems in communication between elections.”Footnote 64 Focusing on the experiences of Hungary during the 1990s, Scheppele describes how the representative institutions failed to translate the demands of the people. Electorates were incapable of checking the inadequacies of their representatives due to poor economic conditions.Footnote 65 Given the circumstances, it was legitimate, she argues, for the constitutional court to intervene. The constitutional court’s duty was to reflect the substantive promises of the constitution by performing political representative functions essential to the proper functioning of a democracy. She depicts the Hungarian Constitutional Court at the time as a highly democratic institution, showing how widely accessible the court was and how it provided a superior avenue for citizens to participate in policymaking.Footnote 66 The court famously heard around two thousand petitions a year, struck down one third of all the laws challenged in its first six years of existence, and ordered the legislature to pass laws on certain rights through the “unconstitutionality by omissions” doctrine.Footnote 67
Treating this form of governance as an ideal type, she notes,
presidentialism and parliamentarism are not the only forms of democratic system on offer, as the political scientists customarily claim. It is logical to think that the third branch – courts – could also be as dominant in some sorts of democratic governments as presidents and parliaments can be … [W]hether a court is democratic or not is an empirical question, not an a priori claim.Footnote 68
She calls this idea “democracy by judiciary” or “courtocracy,” meaning a government with a “judiciary as the branch with the most power and the final word.”Footnote 69 A court meets her definition of democratic when its outcomes actually protect democratic rights, with democracy substantively defined.
Issacharoff also advocates for a strong, democratic role for courts in a host of political contexts. The seed of his arguments can be traced back to a famous article he coauthored with Richard Pildes in 1998. In “Politics as Markets,” the two authors draw an analogy between the economic market and the political market, arguing that American courts should adopt a jurisprudential approach that increases the cost of political lock-ups in order to destabilize attempts to monopolize the political market.Footnote 70 Just as how American courts at the time considered more structural features in deciding antitrust cases, Issacharoff and Pildes argue that courts should also look at second-order considerations such as the organizational form of politics when determining whether political actors were engaging in anticompetitive behavior under electoral law. Some may be reminded of the antitrust analogy of John Hart Ely’s procedural theory of judicial review.Footnote 71 Like Ely, the authors argue that as outsiders, courts are well positioned to protect the political market. But while Ely focuses on rights protection, Issacharoff and Pildes focus on political structure.
Over the next two decades or so, Issacharoff developed this insight and applied it to a range of political contexts. For fragile democracies, he is concerned with the threat of antidemocratic groups.Footnote 72 There is a need to preserve the structure of a democracy from these internal threats while maintaining a healthy level of political pluralism. Inspired by the economic market analogy, he contends that restrictions are necessary to protect the core of a democracy. The restrictions he suggests are supported by comparative experiences and include, for instance, content restriction on electoral speech and party bans. Importantly, interpreting and enforcing these rules depends on courts. Independent courts were treated as necessary checks against self-serving political actors.Footnote 73
He advocates for a similarly strong constitutional court in a new democracy.Footnote 74 Constitutional courts in new democracies, he argues, are responsible for guaranteeing the basic requirements of a competitive democracy. He calls this “democratic hedging.” “Precisely when the political branches are immature and the stabilization of democracy is precarious,” Issacharoff claims, “courts emerge as central actors in consolidating the constitutional order.”Footnote 75 This argument resembles Scheppele’s, in that the weakness of civil society justifies a strong court. Issacharoff characterizes a constitutional court as an effective and flexible ex post remedy, as it can rely on powerful tools, such as the basic-structure doctrine, to respond to a wide range of circumstances.Footnote 76 The court’s responsibility here is to buy time for the polity to mature its democratic culture as it safeguards democracy against a strong political party’s effort to centralize powers and undermine accountability.Footnote 77
More recently, he extends his argument to consolidated democracies, exploring the role of courts in democracies that are undergoing democratic backsliding.Footnote 78 Consolidated democracies, he warns, “may become fragile under excessive pressure on the structural preconditions for democratic governance, at least at times.”Footnote 79 Courts can play a democracy-enhancing role in consolidated democracies when their integrity and stability begins to be threatened. Consistent with his previous arguments, the role here is a structural one.Footnote 80 Courts are capable of playing this role because their arguments are open to public scrutiny,Footnote 81 legal reasoning establishes an “indirect electoral link” to the public,Footnote 82 rule-of-law metrics exist to help assess the correctness of their decisions,Footnote 83 and they are subject to some political accountability, notably through the appointment process.Footnote 84 Issacharoff contends that the theories of Jeremy Waldron and Richard Bellamy that emphasize the political side of the constitutional order are based on idealized assumptions as opposed to the “messy reality of lived experience.”Footnote 85 Recognizing how democratic structures and norms are subverted in real-life democracies, oversight must come from institutions external to the political branches, namely, the courts.Footnote 86
3.3.2 Theoretical Insights Relevant to the Optimistic Model
The extensiveness of Issacharoff’s body of work means this chapter cannot do justice to the breadth and complexity of some of the arguments mentioned. Of importance here, though, is the fact that Scheppele’s and Issacharoff’s work shares certain themes that are relevant to developing the Optimistic Model. These themes allow us to have a closer look at the possible justifications of the Optimistic Model.
3.3.2.1 Source of Authority: Constitutionalism
The Optimistic Model assumes that the court is legitimately exercising its powers against the incumbent. But where does this normative legitimacy come from? Both authors highlight two sources of judicial authority that are relevant to the Optimistic Model. The first is constitutionalism. Constitutions should treat people as constitutional equals. The onus of upholding this falls on the legislature as well as other institutions.Footnote 87 However, when the constitution of a hybrid regime fails to treat people equally, judicial intervention is potentially justified so long as the constitutional court acts to support political equality. As Scheppele argues, in circumstances where other constitutional mechanisms are lacking or inadequate, a constitutional court has a greater responsibility to hold the regime accountable.
Issacharoff’s argument in relation to constitutionalism is more “formalist.”Footnote 88 Constitutional courts, he writes, are “little detained by concerns over the authority for judicial review or over the countermajoritarian consequences of constitutional challenge.”Footnote 89 In this account, the fact that a court is expressly granted constitutional jurisdiction under the constitution provides a crucial source of authority for it to be politically interventionist. However, constitutionalism only justifies the existence of the constitutional powers in Issacharoff’s account, and he does not say how constitutionalism actually guides the exercise of judicial power. Nevertheless, both accounts suggest that constitutionalism, broadly speaking, is one of the key sources of judicial authority in conceptualizing the democratic role of a constitutional court.
3.3.2.2 Source of Authority: Democracy
A second complementary source of authority is democracy. This reflects the motivations of those who subscribe to the Optimistic Model: in courts we trust when the political process fails us. A lack of democracy leads people to project their faith onto courts and view a court as legitimate when it can somehow shore up democratic ideals. There arises the question of where this type of judicial authority comes from. By defining the state as a democracy and detailing the mechanics of the democracy, the written constitution can be an explicit source of authority. Both Scheppele and Issacharoff, however, seem to assume that democracy is a freestanding higher principle, with Scheppele defining democracy more substantively than Issacharoff. Political culture and socioeconomic conditions are included as part of Scheppele’s definition of democracy, while Issacharoff’s conception is closer to the procedural account proposed in Chapter 1. Regardless, their arguments rely on a similar intuition that an absence of democracy – that is, when the actual state of affairs falls short of the standards prescribed by the definition of democracy adopted – defines the legitimacy basis of a constitutional court. Whether a constitutional court is legitimate depends on the extent to which its actual performance helps promote democratic ideals.Footnote 90
3.3.2.3 Countering the Counter-majoritarian Difficulty
The Optimistic Model challenges the age-old counter-majoritarian difficulty. The counter-majoritarian difficulty posits that judicial review, or judicial intervention in politics more broadly, is undemocratic. Unelected judges, lacking a democratic mandate, have no authority to veto the outcomes of the democratic process. The Optimistic Model is unbothered by the counter-majoritarian difficulty. For one, many courts outside democracies seem to enjoy popular support when they overrule the political process. More importantly, the reason why judicial intervention seems legitimate is because the political process of a hybrid regime is not democratic. This is a point raised by Scheppele and Issacharoff. They rightly notice something strange about applying the counter-majoritarian difficulty to nondemocratic contexts or immature democracies. The lack of democratic credentials of the political branches of government raises questions about whether people’s interests are properly represented in a hybrid regime. Not only is the gap in democratic credentials between the political branches and a constitutional court significantly narrowed; pathologies linked to a lack of democracy, such as corruption and human rights violations, are also a concern. A change in regime type forces us to reevaluate the normative reasons for and against judicial review in nondemocratic regimes, especially when judicial review is targeting the causes and consequences of authoritarianism.
3.3.2.4 Political Skepticism
Skepticism toward political representatives in hybrid regimes also pervades the Optimistic Model. This sort of skepticism is not unique to hybrid regimes. Both authors point to how messy real-life politics actually is. According to Issacharoff, even consolidated democracies such as the United States and the United Kingdom fall short of the idealized conditions in political theory.Footnote 91 The Optimistic Model intuitively appeals to those who share this skepticism of political representatives. Distrust in the political branches motivates arguments for judicial intervention.Footnote 92 As Issacharoff argues, “in the manner that foxes should not be posted at the henhouse door, so it is that deference to the legislative process cannot serve as the answer to systematic assaults on the process of electoral accountability.”Footnote 93 The extent to which a court can compensate for the errors of the political branch is open to discussion, but this skepticism is certainly one that finds an audience in a hybrid regime, where the political process is only pretending to be democratic.
3.3.2.5 Democratic Functions
The Optimistic Model, most importantly, is about a democracy-building court. The authors highlight two ways that a court can be democracy-building. Scheppele’s account is more intuitive and focuses on individual rights. A constitutional court is often said to be a guarantor of rights, and she offers a variation of this standard account. In addition to enforcing rights set out in the constitution, a constitutional court can safeguard democratic rights by becoming a channel for citizens to participate in policymaking. Issacharoff’s account, in contrast, is structural, and holds that a court’s role is to preserve the “structural preconditions” of a democracy.Footnote 94 He draws inspiration from his antitrust analogy, and perhaps from the comparative experiences on the basic structure doctrine that he cites. A structural role relies on a particular conception of democracy in order to make clear what the structural preconditions of democracy are. Issacharoff adopts a procedural conception of democracy, whose goal is the preservation of pluralistic competition. According to him, a court is not simply tasked with vindicating instances where constitutional rights have been infringed, but must also mitigate the structural deficiencies of a polity and ensure a healthy degree of political competition.
3.3.3 Overoptimism and Its Dangers
Both authors make valuable contributions. Their arguments illustrate the potential democratic roles that courts can play in hybrid regimes. Their ideas are intuitively appealing to those who live under hybrid regimes and are desperate for democratic change. The five themes summarized so far suggest ways in which the Optimistic Model can be justified. They raise important normative questions about the legitimacy and function of a constitutional court in a hybrid regime. These questions will be taken up in the next chapters.
The rest of this section explains why the Optimistic Model is overconfident about what a constitutional court can achieve in a hybrid regime. The model reflects what courts hope to achieve in a hybrid regime. Implicit in the model is the notion of a constitutional court that is almost as powerful as the incumbent, capable of standing up to authoritarian encroachment. Yet, as we saw from the Pessimistic Model, this is not an empirically plausible assumption. While courts in hybrid regimes may not be as weak as the Pessimistic Model suggests, they are certainly not strong enough to live up to the many aspirations of the Optimistic Model. In the following paragraphs I set out four reasons why the Optimistic Model described so far is unworkable or even counterproductive in a hybrid regime. These reasons are not presented as critiques of Scheppele’s and Issacharoff’s work, but instead focus on the hybrid regime context.
The first objection is that, by overestimating a constitutional court’s potential, the model risks overlooking the pragmatic challenges it faces in a hybrid regime. On a moral level, a hybrid regime constitutional court may be justified in acting in ways that are more progressive than conventional theories suggest. On a pragmatic level, pushing a constitutional court too far leads to “risks that run beyond ineffectiveness and even backlash.”Footnote 95 Not only could the court’s decisions be ignored or reversed, but its confrontational attitude may also lead to political responses that undermine the court’s institutional integrity. In Scheppele’s article, for instance, she observes how the Hungarian court’s earlier efforts led to its ultimate downfall. In 1998, in retaliation for the court’s assertiveness, the newly elected government replaced the bench with its allies.Footnote 96 As valiant as the court was, its inflated self-perception undid its previous efforts at institution-building. This kind of political risk is even more commonplace in authoritarian regimes. Judicial powers were similarly stripped away from constitutional courts in Ukraine, Russia, Egypt, and Turkey after political fallout and confrontations.Footnote 97 The harsh institutional terrain of a hybrid regime warrants judicial sensitivity and possibly compromises. To temper ideals, a workable constitutional theory that applies to hybrid regimes must be pragmatic in order to be effective and durable.
Second, the Optimistic Model dangerously borders on the idea of courts as a “surrogate” of elected institutions.Footnote 98 A court that supports democratic values is not the same as a court that replaces the democratic process. While judicial decisions can sometimes be consistent with liberal-democratic standards, a democracy run by a judiciary is oxymoronic, as courts are not constructed as elected institutions. We might call a dictator benevolent if his or her decisions uphold individual rights, but a dictatorial state is hardly democratic, as the government’s decision-making process disenfranchises the people. Similarly, a hybrid regime led by a court is still not democratic, even if its decisions reflect public opinion. Democracy is not only about outcomes, and proponents of the Optimistic Model should be careful not to take the idea too far. The goal is not to replace a hybrid regime with a rights-conscious court. To avoid creating another form of guardianship, we should instead investigate the ways in which a constitutional court can improve the democratic process of a hybrid regime.
Third, while the Optimistic Model rightly identifies some of the ways in which a constitutional court can support democracy, it is relatively silent about the negative externalities that may arise from expanding the constitutional role of a constitutional court. Courts can perform many functions, but are not necessarily good at all of them. This potentially weakens the arguments in support of the Optimistic Model. The Hungarian court, in Scheppele’s characterization, intervened in a number of social policies relating to the Bokros package. Due to time constraints, the court bypassed consultations with experts and reviewed “as much of the law as they could.”Footnote 99 Her example certainly shows that the court can perform some functions of a political representative by allowing civil society to represent their interests through the legal process and checking the quality of the laws. The point about the court’s expediency can be self-defeating, though, as it indicates that the judges probably decided consequential policies based on highly questionable empirical assumptions. Institutional concerns are by no means fatal to the search of a democracy-enhancing role, but a theory that demands venturing out of the traditional constitutional boundaries of a constitutional court needs to be honest about some of its possible limitations and be shown why this expansion is justifiable despite some of the new problems it might create.
Finally, the Optimistic Model depends on an idealized vision of judges. Judges under this model are uncorrupted, principled outsiders who have a strong sense of moral responsibility. Many judges in a hybrid regime fall short of this vision, however. The influence of authoritarian politics on the judiciary suggests that there will be judges who hesitate to assert themselves against the incumbent, are indifferent or even opposed to the democratic cause. That is not to say that all hybrid regime judges behave like those portrayed by the Pessimistic Model. The relationship between the regime and the court is never straightforward, and judges are complicated figures. Issacharoff reminds us that even authoritarian regimes need good judges with proper legal training to administer justice in the normative half of the dual state.Footnote 100 Bound by their oath to the constitution and the higher principle of justice, these judges may be willing to defy the regime out of moral conscience, self-respect, or simply because they care about their reputation. Examples from places like Hong Kong, Pakistan, and Uganda support this possibility in hybrid regimes. Meanwhile, we must recognize that the actions of even democratically committed judges may be complicated by other legitimate considerations such as personal safety and career security. Accordingly, a workable theory should be sensitive to the human side of judges and the personal or moral struggles they may also face.
3.4 Conclusion: The Realistic Model
This chapter concludes by presenting a more attractive view of constitutional courts called the Realistic Model, which adapts and combines learnings from the two models discussed in this chapter. This model is realistic, not necessarily because it more accurately depicts how constitutional courts in hybrid regimes behave in practice, but because it is realistic about what constitutional courts can achieve in a hybrid regime.
Like the Pessimistic Model, the Realistic Model acknowledges that judicial autonomy in a hybrid regime is limited by authoritarian politics. Those attached to the Optimistic Model are bound to be disappointed, as the sort of judicially led transformative changes promised by that model are improbable. However, the Realistic Model rejects the determinism of the Pessimistic Model and holds that a constitutional court is capable of expanding beyond a marginalized position. In Section 3.2, I outlined three political determinants of judicial autonomy found in most hybrid regimes: semi-competitive elections, fragmented political systems, and the claim to be democracies. That discussion showed how the Pessimistic Model tends to overstate the limits of a constitutional court. Most importantly, it reinforces the Realistic Model’s view that meaningful levels of judicial autonomy can exist in a hybrid regime.
The Optimistic Model may be excessively bullish about what courts can accomplish, but the Realistic Model shares its democratic motivations. It allows for the possibility that a constitutional court’s scope for action is wider than what might be expected under the Pessimistic Model. This opens up the space for courts to play a democracy-enhancing role in a hybrid regime. Some justifications for a democracy-enhancing role were introduced in the discussion of the Optimistic Model. The political challenges arising from a hybrid regime complicate this debate by forcing us to take authoritarian realities seriously when theorizing the normative role of a constitutional court. Nevertheless, through the Optimistic Model, we can start to imagine ways in which a constitutional court can enhance democracy. What exactly a democracy-enhancing role entails is the subject of the coming chapters. The themes highlighted in Section 3.3 – judicial legitimacy, the counter-majoritarian difficulty, and institutional limitations – serve as a theoretical foundation for us to build upon.
Finally, the Realistic Model views the relationship between a constitutional court and regime politics as a dialectical and ongoing process. This has significant implications, as it opens up a more fundamental discussion about how judicial politics in a hybrid regime should be understood.Footnote 101 This contrasts with the unidirectional approaches underlying the Pessimistic Model, wherein regime politics is conceived as a one-way, independent causal factor explaining variations in judicial behavior, and the Optimistic Model, whose primary focus is on how a constitutional court can impact constitutional politics.
Under the Realistic Model, the court and the regime are interdependent. A constitutional court relies on a hybrid regime for resources and implementation, but a hybrid regime also needs a constitutional court for political legitimacy and other instrumental gains. While the interdependence is not necessarily symmetrical – the balance of power usually favors the regime more – the constitutional court is uniquely positioned within this interdependent relationship to change the power balance in and the constitution of a hybrid regime. As a result, neither the court nor the regime has sole control over the development of constitutional politics. Repeated interactions between the constitutional court and other political actors determine constitutional change. This dialectical perspective better accounts for the complex and dynamic developments of authoritarian judicial politics. It also underscores the fact that a court is simultaneously constrained by and constitutive of constitutional politics: A constitutional court internalizes some of the norms and expectations posed by a hybrid regime, but, most importantly, the hybrid regime is simultaneously shaped by the decisions of the constitutional court. Once again, the dialectical perspective of the Realistic Model explains why it might be realistic for a constitutional court to play a democracy-enhancing role in a hybrid regime.
Open access