2.1 Introduction

This chapter has two objectives. The first is to answer the question of what a hybrid regime is. Hybrid regimes are an ambiguous regime-type. The concept was first introduced around the end of the Cold War,Footnote ¹ and, at the time, was understood as capturing systems that “combine elements of both authoritarianism and democracy.”Footnote ² Many offshoot terms have subsequently been developed, including “illiberal democracy,”Footnote ³ “competitive authoritarianism,”Footnote ⁴ “partial democracy,”Footnote ⁵ “electoral authoritarianism,”Footnote ⁶ “semi-democracy,”Footnote ⁷ “semi-authoritarianism,”Footnote ⁸ “quasi-democracy,”Footnote ⁹ and “pseudo-democracy.”Footnote ¹⁰ The “excessive proliferation”Footnote ¹¹ of terms associated with hybrid regimes has caused confusion in the field.Footnote ¹² This book draws on some of these concepts, but retains the use of “hybrid regime” as it best captures their mix of democratic and authoritarian elements.

A hybrid regime presents itself as a functioning democracy, but the incumbent has disproportionate control over the rules of the game. Hybrid regime elections are therefore semi-competitive: although opposition success is possible, incumbent success is the more probable outcome.Footnote ¹³ Elections in a hybrid regime are also disingenuous: they pretend to be democratic but are actually unfair. Section 2.2 will explore this account of a hybrid regime in more detail.

The account presented is an ideal type, and, as such, it does not aspire to faithfully represent reality. Rather, by abstracting from real-world instances, it emphasizes certain characteristic features of a hybrid regime in order to illuminate subsequent discussion. It is not the only way of looking at a hybrid regime, but the features discussed here are shared among many hybrid regimes and are of significance to the book.

The second objective of the chapter is to identify points of tension between a hybrid regime’s constitution and the constitution of a good state. This allows us to better understand the implications a hybrid regime has for a constitution. By constitution, I do not mean the written constitution, or large-C constitution, but rather the elements that build up and constitute a state. The chapter shows that three constitutional features tend to be found in a hybrid regime as defined here: rivaling constitutional ideologies of democracy and guardianship (Section 2.3); a trifurcated dual state legal order (Section 2.4); and two levels of constitutional battle (Section 2.5). Along the way, and to preface the next chapters, I suggest how these features might impact a constitutional court in a hybrid regime.

2.2 Defining a Hybrid Regime

Much of the literature in the field of comparative constitutional studies relies on the democracy-versus-authoritarian-regime dichotomy.Footnote ¹⁴ Democracy and authoritarian regimes are depicted as binary categories, with an authoritarian regime defined negatively in relation to a democracy. That is, a state is classified as an authoritarian regime when it lacks any one of the necessary elements constituting a democracy, such as free and fair elections and civil-political rights protection.

The dichotomous approach has its methodological advantages. It makes it convenient and more feasible to conduct certain kinds of large-N empirical studies. It excels when the comparators exhibit sharp empirical differences. Nonetheless, the fact that a regime is not a democracy does not necessarily mean that it is authoritarian. Failed states, for instance, are neither democratic nor authoritarian. More importantly, this approach performs poorly when the subjects of the study sit somewhere along the spectrum between democracy and pure authoritarian regime. Under the dichotomous approach, a hybrid regime would be classified as an authoritarian regime because it falls short of a democracy. However, it is evident that the political structure of hybrid regimes like Pakistan or Turkey have little in common with regimes that are close to the authoritarian end of the spectrum like Mainland China or Saudi Arabia. The dichotomous approach obscures the distinct political patterns generated by a hybrid regime. Critiquing the current body of literature, Tamir Moustafa writes, “The once hard-and-fast distinction between democratic and authoritarian polities is increasingly blurred, as is clear from the proliferation of new adjectives and categories to describe hybrid regimes. A sharp dichotomy between democratic versus authoritarian political systems is less helpful than ever for understanding the way that power is organized, institutionalized, and contested in any given polity.”Footnote ¹⁵ The emergence of regimes that are neither classically democratic nor authoritarian engenders a need to further differentiate between a hybrid regime and a pure authoritarian regime. In addition, introducing the concept of a hybrid regime also helps us recognize the normative superiority of a hybrid regime over a pure authoritarian regime, given that it embodies at least some democratic norms and institutions. Put differently, adopting the concept of a hybrid regime has both descriptive and normative implications for how we understand constitutionalism in these ambiguous states.

2.3 Democracy and Guardianship: The Two Constitutional Ideologies

The sections that follow explore three implications of a hybrid regime for constitutions. At the end of each section, I briefly highlight those implications that are relevant to a constitutional court in a hybrid regime, in order to foreshadow the discussion in later chapters.

This first feature is two conflicting ideologies being encompassed by a single constitutional order, which creates a dissonance at the heart of a hybrid regime’s constitution.Footnote ⁵⁴ Constitutions are normally disharmonic, allowing room to accommodate different views in society.Footnote ⁵⁵ The problem here is that the disharmony is foundational: the two ideologies of a hybrid regime represent two irreconcilable visions of a legitimate state: democracy, and guardianship, which as will be explained shortly is a political theory that most charitably explains authoritarian regimes. This is reflected in the way a hybrid regime institutionalizes aspects of democracy while stripping away its substance. As I later explain, the legal order of a hybrid regime is structured in a way that no single form of political ideology is capable of legitimation. Democratic ideals can justify a hybrid regime’s democratic institutions and practices, but clearly not its authoritarian ones, as they are against the very spirit of democracy.

The best normative reading of the authoritarian institutions and practices of a hybrid regime is that they exemplify guardianship. Guardianship is a theory of legitimate political authority that is, in many ways, the antithesis to democracy. As Robert Dahl puts it, guardianship is the “perennial alternative”Footnote ⁵⁶ to democracy. Guardianship represents the idea that society should be governed only by elites. Guardianship is justified on instrumental grounds: that it is better at producing political decisions of a higher quality. The idea of guardianship can be traced back to Plato’s Republic, where he argued that society should be ruled by a few with “the expert knowledge of kingship.”Footnote ⁵⁷ Political power under guardianship is distributed according to competence and virtue, as opposed to equally under democracy. The right to rule is reserved for those who can understand the interests of others and identify the best solution for realizing the common good, and who are capable of governing virtuously. Classically, guardians are likened to philosopher-kings. There are many contemporary versions of guardianship, including epistocracyFootnote ⁵⁸ and meritocracy.Footnote ⁵⁹ Newer models of guardianship do not rely solely on idealized guardians, but also on the institutional designs that structure the constitution according to guardianship standards. For instance, supporters have proposed restricted franchise (i.e. franchise restricted to those who pass a competence test) and weighted voting based on political knowledge (i.e. the weight of one’s vote is determined by one’s demonstrated knowledge of politics) to realize guardianship ideals.Footnote ⁶⁰

The intuitive appeal of guardianship should not be ignored. Over the past decade, this idea has regained traction among certain politicians and academia. The rise of populism and democratic backsliding have fueled skepticism toward democracy. As people turn against democracy, they look to guardianship-esque solutions. Singapore and China, with their lack of democracy but perceived stability and economic success, are seen as the posterchildren of guardianship. Inspired by them, some elected leaders have begun exploring how guardianship can be incorporated into democracies.Footnote ⁶¹ Voters in democracies are blamed for making poor political decisions. Frustration with the “ignorant” has led to calls to exclude the irrational, the uninformed, or the unintelligent. These critics argue that incompetent voters need to be protected from their own ineptitude, and guardianship limits the harms caused by political ignorance.

It should be clear why guardianship and democracy are regarded as rival concepts of political authority. Political equality is a tenet of democracy, and guardianship clearly violates this principle. Guardianship trades political equality in exchange for improved political outcomes. Under guardianship, the political process is only a tool for reaching good collective decisions, and the attractiveness of a given political process depends on its ability to effectively fulfill this function.Footnote ⁶² As Jason Brennan argues, “democracy is a hammer … [as] it is a means to an end, but not an end it itself … [D]emocracy is not intrinsically just.”Footnote ⁶³ Supporters of guardianship suggest that it is not necessarily arbitrary: disenfranchisement is arguably just if it can foster a more competent electorate and yield better political outcomes.Footnote ⁶⁴

Authoritarianism is not the same as guardianship, and not all supporters of guardianship defend dictators. Authoritarianism, as commonly used today, refers to arbitrary and illiberal practices.Footnote ⁶⁵ Like democracy, guardianship is an ideal: a normative political theory about state legitimacy. Many authoritarian regimes we see in reality are, to borrow from Aristotle, “deviant” versions of guardianship. Just like tyranny is the perverse version of kingship under Aristotle’s classification of constitutions, real-life authoritarian regimes are often mistaken applications of guardianship. While democracy can also degenerate into populism or a tyrannical majority, guardianship is particularly susceptible to becoming an excuse for authoritarianism.

Under the political context of reasonable disagreement, it is immensely challenging to establish standards to determine the correctness of political outcomes and the definition of political competence. Theories of guardianship fail to convincingly address these issues. The arbitrarily imposed will of the dictator would, as a result, fail to give due respect to its people. Guardianship is also vulnerable to abuse by leaders due to the absence of checks. Under a democracy, powers are dispersed and elections are periodic. These institutional guarantees drastically reduce the chances of elite entrenchment.Footnote ⁶⁶ Conversely, guardianship breeds elite entrenchment, with the “elite” being arbitrarily defined. As competent as the guardians might be, the guardianship model incentivizes the abuse of power for personal gain. The success of guardianship relies on the self-restraint of the ruler, but people with this level of virtue are rare. Quoting Aziz Huq and Tom Ginsburg, “a healthy skepticism about political actors is a powerful force for keeping those leaders honest and faithful to the moral and legal obligations of office.”Footnote ⁶⁷ Despite its flaws, democracy is better at resisting authoritarian capture. In addition, as elections elicit the consent of people to be ruled, democracy must have greater respect for political equality and individual autonomy.

A hybrid regime is its own regime type because of its distinct institutional structure and the unique political dynamics this creates. Unlike democracy and guardianship however, a hybrid regime does not represent a political ideal. Instead, the two rival theories of legitimacy – democracy and guardianship – come together to supply the normative basis for a hybrid regime, despite their fundamental incompatibility. The clash between these two ideals creates a dissonance at the heart of the constitution of a hybrid regime. This creates a constantly shifting evaluative basis, as subscribing to both theories of political authority is impossible. For example, disenfranchisement is regarded as a flaw under democracy, but may be consistent with guardianship if its justification is to limit voter ignorance or promote state stability. This constitutional dissonance can be intensely destabilizing as the regime struggles to find a coherent theory to justify itself. It also creates polarization within society as different social groups embrace opposing ideologies. That is not to say that a hybrid regime is self-defeating. Empirical evidence shows that hybrid regimes can achieve stability by deploying microlevel political strategies to mitigate the practical effects of this dissonance.Footnote ⁶⁸ Nevertheless, this dissonance cannot be fully resolved.

Two conflicting conceptions of a constitutional court emerge as a result of the constitutional dissonance of a hybrid regime: one based on liberal democratic principles, and another based on guardianship or the authoritarian’s ideology. In a democracy, the constitutional court ideally acts as a check on arbitrary public power and applies the constitution in accordance with liberal constitutional principles. In contrast, guardianship creates an expectation that the constitutional court should obey and implement the will of the authoritarian, thereby reducing it to an instrument of the incumbent regime. The constitutional court in a hybrid regime faces what I call a legitimacy paradox, and this paradox will be taken up in Chapter 5.

Conflicting ideologies can be a valuable asset for a constitutional court, granting it the authority to push or nudge the hybrid regime toward a more democratic constitution. Ideological clashes only occur when the norms underlying the two political ideologies are being enforced and put into practice by constitutional actors. The constitutional court has a role to play in this ideological tug of war. Its role may be limited, in the sense that it is not a positive legislator and cannot initiate democratic reforms, but, through its decisions, and perhaps in an incremental fashion, the court can shore up democratic norms by holding the regime accountable to the constitutional democratic norms that the regime purports to abide by. The destabilizing effect of this dissonance may also weaken the regime’s ability to rein in a court that can mobilize support from prodemocracy segments of the population. If exploited in the right way by the constitutional court, the inherent dissonance of a hybrid regime can become its Achilles’ heel.

2.4 Trifurcated Dual State

A state’s constitutional ideology shapes its legal order, and the principles that structure a legal order give flesh to a state’s constitutional ideology. This section argues that the legal order of most hybrid regimes is best characterized as a “trifurcated” version of a dual state, to use Cora Chan’s terminology.Footnote ⁶⁹ Before offering my account of a trifurcated dual state, I will first explain what a dual state is.

Writing during the earlier years of the Third Reich, Ernst Fraenkel argued that the Nazi regime was far from lawless. It instead consisted of two “states”: the normative state and the prerogative state. The two states are legal in character, but are not separate legal systems, and belong to the same legal order. The normative state is, according to Fraenkel, “an administrative body endowed with elaborate powers for safeguarding the legal order as expressed in statutes, decisions of the courts, and activities of the administrative agencies,”Footnote ⁷⁰ whereas the prerogative state is the “governmental system which exercises unlimited arbitrariness and violence unchecked by any legal guarantees.”Footnote ⁷¹ The normative state represents law-based governance, while the prerogative state represents arbitrary governance, which is sometimes law-like. More importantly, the normative state is subordinate to the prerogative state. The prerogative state has the jurisdiction to decide jurisdiction, or “kompetenz-kompetenz.” It is hence misleading to describe the two states as two halves of a legal order, as they are not on equal footing.

While the dual-state concept was first developed to characterize Nazi Germany, it is now used as an analytical tool to study legal systems in authoritarian regimes.Footnote ⁷² Considering how central law is to how authoritarians today rule, it is not surprising that legal orders in many authoritarian regimes fit the dual-state model. The two states entail two different visions and principles of governance. The prerogative state enables the authoritarian to exert control over matters of fundamental importance. Curiously though, the normative state reflects the authoritarian’s (weak) commitment to constitutional-legal norms. Typically, the normative state is sustained by the authoritarian for instrumental reasons, such as creating the stability and predictability necessary for the economy to flourish, and providing a democratic façade for a hybrid regime.

Under the traditional model of a dual state, the normative state is not a liberal and democratic system.Footnote ⁷³ The authoritarian’s political dominance affects the law-making process and the substance of the resulting legislation. Kim Lane Scheppele’s concept of “autocratic legalism” reminds us that authoritarians can attack the principles of democracy and constitutionalism while being fully compliant with rule-of-law principles, thinly defined, and procedural norms.Footnote ⁷⁴ Singapore’s infamous defamation law, for example, belongs to the normative state – its creation and implementation fully comply with legal norms, but it is designed to maintain social stability and target dissenters. An authoritarian may rely on both the normative and prerogative states to assert its powers.

The traditional model of the dual state describes a bifurcated legal order, with one domain (the normative state) being regulated by legal rules, and the other (the prerogative state) governing arbitrarily. While this version of a dual state aptly captures some of the tensions arising from the conflicting visions within a hybrid regime, a further distinction should be made with regard to the normative state in order to better represent a hybrid regime’s legal order.

The normative state of a hybrid regime frequently goes beyond mere legality. Unlike the normative state of a pure authoritarian dual state, one will almost always find liberal constitutional guarantees in the normative state of a hybrid regime dual state. These guarantees are nontrivial. For example, in Hong Kong, Uganda, and Pakistan, the protection of rights is not limited to private law or politically uncontroversial areas. Political opposition has relied on the normative state to meaningfully challenge the government. Legal mobilization movements and successful constitutional review challenges are routinely observed as well. The liberal part of the normative state, of course, does not govern all areas outside the prerogative state, but its reach can be substantial, and its impact significant.

The normative state of a hybrid regime has liberal tendencies because of its defining characteristics. A hybrid regime’s imperative to imitate a democracy necessitates adopting laws, legal structures, and institutions with liberal constitutional contents. As I argued, constitutions in hybrid regimes are not mere shams, and liberal constitutional guarantees are more likely to be enforced in hybrid regimes than in pure authoritarian regimes. Since the degree of political pluralism in a hybrid regime is meaningful, checks on how public power is exercised by the legislature exist. In many cases, there are consequences for constitutional transgressions, and lots of important questions of law and constitutionality are open to contestation. The authoritarian may be instituting liberal constitutional guarantees for instrumental or disingenuous reasons, but the authoritarian’s self-interest is precisely why the liberal part of the normative state is sizable and can meaningfully exist in a hybrid regime. These characteristics of a hybrid regime create an additional and more robust “layer” to the normative state of a hybrid regime.Footnote ⁷⁵

In short, the normative state of a hybrid regime comprises two layers: the “legality normative state,” which fulfils the minimum requirements of rule of law, and the “liberal normative state,” which protects liberal constitutional norms. Because of these liberal pockets, the legal order of a hybrid regime is better characterized as a trifurcated, not bifurcated dual state. These three domains – the prerogative state, the legality normative state, and the liberal normative state – combine to form the legal order of a hybrid regime. The existence and size of the liberal normative state is what usually distinguishes the legal order of a hybrid regime from that of a pure authoritarian regime.

While the two layers of the normative state help to legitimate a hybrid regime, the authoritarian essence of a hybrid regime is preserved through the prerogative state. When the regime faces an existential threat, it resorts to the prerogative state for political control instead of revealing its true colors through raw violence. The prerogative state encompasses areas where the authoritarian has absolute discretion. Authoritarians today have learnt to take advantage of their political dominance to conceal arbitrary governance behind the auspices of the “law.” Life is unpredictable under the prerogative state. In Uganda and Pakistan, for example, the military has a huge presence and depends on the prerogative state to maintain its political power. The military courts in these countries have routinely been used to try opposition lawmakersFootnote ⁷⁶ and normal civilians.Footnote ⁷⁷ A hybrid regime authoritarian is generally reserved when acting on its prerogative powers, though, at least when compared to a pure authoritarian regime. This is because a hybrid regime cannot credibly call itself a democracy when what remains of its legal order is the prerogative state.

A hybrid regime’s potential to unleash prerogative power should not be ignored or underestimated, however.Footnote ⁷⁸ This potential is reflected in its political structure. Alongside Hong Kong’s liberal constitutional order, for example, exists Beijing’s unchecked discretionary power to have final say over the interpretation of the city’s mini-constitution. Having issued only five interpretations since the handover, one might argue that Beijing has exercised great self-restraint in intervening in constitutional matters in Hong Kong. However, the selective use of this nuclear option reminds the opposition of what might ensue if they are unwilling to cooperate. This creates coercive effects similar to those when the prerogative state is actually activated. The mere potential to unleash the prerogative state is often enough to subdue the opposition and consolidate political control.

The three domains of a trifurcated dual state interact with one another,Footnote ⁷⁹ and they are “independent yet interrelated.”Footnote ⁸⁰ The relative size of the three domains is a function of the formal legal and constitutional provisions, and, more importantly, is also shaped by organic developments in constitutional politics. The prerogative state, for example, might expand when the authoritarian faces a major crisis, crowding out the normative state as a result. There are more subtle and less “transgressive” means for the prerogative state to corrupt the normative state.Footnote ⁸¹ As authoritarian norms gain ground, state agents such as judges and lawmakers may act with “anticipatory obedience,”Footnote ⁸² exercising discretion in ways that correspond to the will of the authoritarian “in the absence of any directives … from the prerogative state.”Footnote ⁸³ The corrosive effect of the prerogative state in this instance will undermine the liberal normative state, but not necessarily the legality normative state, as anticipatory obedience of such can still be legally justified.

The authoritarian can reduce the sizes of the two layers of the normative state, but it is also possible for the normative state to resist authoritarian encroachment or even expand. State agents in charge of enforcing the constitution and tensions created as a result of the conflicting ideologies of a hybrid regime can enlarge the normative state. The resilience of the normative state, especially the liberal normative state, depends on the will and capacity of state agents to safeguard liberal constitutional norms. A constitutional court emerges as a crucial actor that can shape the size of the normative state, as it understands the language of the constitution and can adapt to the political circumstances of a hybrid regime. A constitutional court has the power to interpret and apply the constitution in ways that fit the three domains. The boundaries between the domains are porous,Footnote ⁸⁴ and a decision in one domain can affect the other domains. Since these boundaries are defined and determined in practice by judicial interpretation, the scope of the liberal normative state can be expanded by the constitutional court if it handles related constitutional questions properly. Legal reasoning is the practice of argumentation based on similarity and legal principles: a rule established in a prior case will be applied to a subsequent case with similar factual patterns.Footnote ⁸⁵ Equality principles laid down in an LGBTQ rights case, for example, may be developed into equality principles that apply a broader range of circumstances beyond sexual orientation discrimination. Sitting at the fuzzy intersections of the three domains, a constitutional court can exploit the porous nature of a dual state to plant democratic norms. These can be used in the future to undermine the prerogative state and reinforce the liberal normative state.

2.5 Two-Leveled Constitutional Battle

Finally, a hybrid regime creates a particular dynamic within the constitutional order. As suggested earlier, elections in a hybrid regime are autonomous and consequential. Quoting Schedler, “the conflictive interactions that [hybrid regime elections] generate possess a logic of their own, an importance of their own, and effects of their own.”Footnote ⁸⁶ The rules favor the regime, but there is sufficient space for the opposition to meaningfully compete within the rules of the game so as to gain political power. An important opposition goal is, however, to change the constitution so as to remove the political asymmetry. As a result, the constitutional dynamics of a hybrid regime occur simultaneously on two levels: within constitutional rules and over constitutional rules.Footnote ⁸⁷

A two-level constitutional dynamic is not necessarily unique to hybrid regimes. In a democracy, constitutional actors fight over electoral votes and constitutional rules as well. However, most political competition in a democracy happens within agreed-upon constitutional rules. Election is accepted as the only legitimate way of constituting a government and transferring political power. As long as the fairness of the system is not an issue (which normally is the case for a democracy), the constitutional battle remains within the rules of the game. Every so often, there is pressure to alter the constitution to reflect updated norms or correct latent defects, but this occurs relatively infrequently compared to authoritarian regimes. In pure authoritarian regimes, elections are not meant for political competition: they are tools of governance that allow dictators to gather information and co-opt elites.Footnote ⁸⁸ When the results are predetermined, it makes little sense for the opposition to invest significant energy in competing within the constitutional rules. The more pressing problem to be addressed is the constitution itself. The opposition seeks to initiate reforms and instigate fundamental change by changing the constitutional rules or by creating a new constitution.

A perpetual two-level constitutional battle is a necessary feature of a hybrid regime. The possibility of winning an election, though unlikely, offers enough incentive for the opposition to invest in competing within constitutional rules. “As soon as political institutions are granted minimal margins of power and autonomy,” Schedler points out, “they can turn against the dictator.”Footnote ⁸⁹ Political competition within the constitutional rules will be activated once the electoral game is sufficiently competitive. The rules are unfair, but if the opposition invests enough time and resources in electoral competition and can overcome coordination challenges, they might succeed at the ballot box. This gives the opposition the political power to fundamentally transform politics.

Deciding whether to compete within or over constitutional rules is not a binary choice, though, and in a hybrid regime the two levels of competition co-occur. If the fairness of the game is the real problem, it also makes sense for the opposition to compete over the rules. As Schedler puts it, “unwilling or unable to compete within given rules, parties extend their struggle to the rules itself. Rather than focusing their competitive energies on playing the game, they get continually drawn into fights over the basic rules and conditions of the game.”Footnote ⁹⁰ The political asymmetry between the incumbent and the opposition stokes conflict over the constitution. Winning on the level of constitutional rules usually requires an even higher degree of public attention and mobilization. Consequently, the opposition may organize mass protests and expose structural irregularities so as to spur public resistance. Other constituencies, such as foreign states and state agents, emerge as potentially important actors on this battlefront. A regime relies on state agents such as the bureaucracy and police to conduct its affairs. But, like any collective entity, a hybrid regime faces agency problems. Successful conversion of state agents into opposition allies can destabilize a hybrid regime, which gives the opposition greater bargaining power. Similarly, the opinion of foreign states may play a major role if the hybrid regime relies on international aid or is closely connected to the international community. International pressure may catalyze constitutional reform.

The challenge faced by the opposition under this two-level constitutional battle is deciding how to allocate their resources. Each strategic choice has an opportunity cost. The two levels are tightly connected, and a decision at one level impacts the options available at the other. For example, the opposition must decide the extent to which they should participate or boycott an unfair election. A higher level of opposition commitment to participation may increase the probability of winning the election, but the underlying asymmetry may already limit that probability. Boycotting an election delegitimizes it and may trigger mass mobilization, capturing the attention of the international community. This option also allows campaigning funds to be invested in other nonelectoral strategies instead. The risk of abandoning the within-constitutional-rule battlefront, however, is losing formal political representation in the legislature, and giving away veto and monitoring powers over public institutions. This challenge also reflects the autocrat’s logic of instituting elections: these strategic dilemmas undermine challenge by the opposition. It is difficult for the opposition to make a series of right decisions, while wrong decisions may weaken their challenges on both battlefronts. Compounding the problem further is the fact that the opposition is not a monolithic entity, and there are collective action challenges that need to be resolved as well.

The interconnectedness of the two levels is also illustrated in the tough choices confronting the incumbent. As mentioned, a hybrid regime is characterized by its paradoxical intentions: to pretend to be a democracy while subduing the opposition. As the opposition’s popularity grows, the incumbent may be tempted to manipulate the rules further or even resort to naked repression in order to guarantee electoral success. This may unintentionally trigger a backlash from the public and the international community. Assuming that a hybrid regime has not given up on its democratic pretense, the incumbent must also balance its strategies carefully to keep winning elections without corroding its democratic image.

Constitutional courts are crucial constitutional actors with a say at both levels of the constitutional battle. They have the power to determine whether political outcomes are reached in accordance with the rules of the game. This is not about challenging the authority of the rules, but about whether the political outcomes were properly reached given preexisting rules. Some constitutional courts with jurisdiction over election petition and administrative law questions can apply procedural law, rule-of-law principles, and administrative law doctrines to determine the validity of political outcomes. On top of ensuring actors are playing by the rules, a constitutional court offers one of the most direct means of changing the rules of the game through its determination of the meaning of constitutional rules. When the fairness or constitutionality of the rules are questioned, the court is asked to step in and “clarify.” Its decisions may also help raise domestic and international awareness of controversial issues, which can then become focal points for mass mobilization and catalysts for regime change.

Considering the centrality of constitutional courts to dynamics at these two levels, it is no wonder that a constitutional court is a factor in the strategic calculations of both the opposition and the incumbent. The opposition must decide how much it should invest in legal mobilization. Court cases can be costly and time-consuming. The chances of success may also depend on the legal merits of the case and the type of issue being litigated. Even if a favorable judgment is secured, the implementation of the decision depends on the will of the government. Nevertheless, the expected gains of pursuing a legal strategy, which I explore further in Chapter 4, may sometimes be higher relative to competing in the political process. The incumbent must also decide how to balance political control and judicial autonomy. Competent judges may legitimate and improve a hybrid regime’s legal system, but these judges may not always be loyal. Even if the regime can control the appointment process, out of self-respect or a concern to protect their own legacy, not all appointed judges are necessarily loyal to the regime. The incumbent may be tempted to resort to ex post means of interference, such as removing judges who challenge the regime, diluting the powers of defiant judges (as in Hungary and Poland), or even assassinating them (e.g. the execution of the chief justice of Uganda, Benedicto Kiwanuka). These more drastic forms of interference will generally backfire on the regime. The lawyers’ and judges’ movements in Pakistan and Uganda were direct responses to the naked repression of judges, and both movements won the support of the local population and the international community.

2.6 Conclusion

With diverging impulses toward democracy and authoritarianism, a hybrid regime has schizophrenic tendencies: it imitates a democracy while limiting its own democratic potential. The defining features of a hybrid regime have three different implications for its constitution. On an ideological level, a hybrid regime does not have a unifying theory of political legitimacy. Instead, it must cope with two rivalling legitimation stories: democracy and guardianship. On a legal-institutional level, democratic institutions curiously coexist with authoritarian ones, with different conceptions of “legality” competing with one another. In terms of constitutional dynamics, political competition in a hybrid regime takes place at two levels as constitutional actors compete within and over constitutional rules.

These questions inevitably impact the way a constitutional court behaves and how it should act in a hybrid regime, which is the focus of the rest of the book. A constitutional court is conditioned by the sociopolitical context it operates in. The dynamic interplay between democracy and authoritarianism created by the hybridity forces us to reconsider the nature and normative role of a constitutional court. This chapter introduced some of the themes that will be explored in greater depth later on. The next chapter situates a constitutional court in a hybrid regime context. I consider two common ways to think about a constitutional court in a hybrid regime, and develop insights that are relevant to advancing an attractive account of a constitutional court.