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Gardbaum, S. 2015. Are Strong Constitutional Courts Always A Good Thing For New Democracies
Gardbaum, S. 2015. Are Strong Constitutional Courts Always A Good Thing For New Democracies
STEPHEN GARDBAUM*
INTRODUCTION .................................................................................287
I. FORMS OF JUDICIAL REVIEW ........................................................291
II. BACKLASHES ...............................................................................294
A. Hungary..........................................................................295
B. South Africa ...................................................................297
C. Romania .........................................................................298
D. Egypt ..............................................................................300
E. Sri Lanka ........................................................................301
F. Turkey .............................................................................302
III. INDEPENDENCE OF THE JUDICIARY: THE MOST ESSENTIAL
GOAL FOR COURTS IN NEW DEMOCRACIES ............................303
IV. HOW WEAK-FORM JUDICIAL REVIEW MAY REDUCE THE
TENSION .................................................................................309
A. The Potential Benefits of Weak-Form Review ..............311
B. Which Version of Weak-Form Review? ........................313
C. Conclusion......................................................................314
V. LIMITATIONS OF THE CLAIM ........................................................315
CONCLUSION ....................................................................................319
2015] STRONG COURTS FOR NEW DEMOCRACIES? 287
INTRODUCTION
a review of the court to assess the extent to which its decisions had
impacted social transformation.8 In August 2012, the Romanian
Constitutional Court president complained to the Council of Europe
of death threats against some of its judges and attacks by the
government on its independence.9 In Egypt, a series of high profile
skirmishes between the electorally successful Muslim Brotherhood
and the Supreme Constitutional Court ultimately resulted in a new
constitution that restricted the latter’s power and removed the most
anti-Brotherhood justices before the military stepped in to take power
in July 2013.10 In Sri Lanka, the government impeached the Chief
Justice of the Supreme Court in January 2013 following a ruling that
one of its prized legislative proposals was unconstitutional and
despite the Court’s declaration that the impeachment process was
illegal.11 In August of 2014, the head of Turkey’s Constitutional
Court complained of political attacks by the Erdogan Government
that had “traumatized and divided the judiciary,”12 while the
President of the Venice Commission expressed concern about
excessive government criticisms of the constitutional court.13
These attacks amount to the most serious situation facing
constitutional courts since President Yeltsin closed the first Russian
court in 1993 and raise a number of important questions about
judicial review in newer democracies. Should pessimism about their
prospects now replace the prevailing optimism? Are courts helpless
against such political backlashes? In this Article, I plan to take the
opportunity of these striking episodes to reconsider the standard
model and engage in some pragmatic reflection on whether and how,
party-resents-the-constitutional-courts-fierce-independence/?_php=true&_type=blogs&_r=0.
8. See id.
9. Neil Buckley, Judges Caught in Romania Power Struggle, FIN. TIMES, Aug. 7,
2012, available at http://www.ft.com/intl/cms/s/0/113332a2-e0af-11e1-8d0f-00144feab49a.
html#axzz3IL7S34SC.
10. See CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 11 Sept. 1971, as amended,
May 22, 1980, May 25, 2005, March 26, 2007, December 26, 2012, art. 177; infra Part II.D.
11. Ranga Sirilal & Shihar Aneez, Sri Lankan Chief Justice Impeachment Illegal:
Supreme Court, REUTERS, Jan. 3, 2013, available at http://www.reuters.com/article/2013/
01/03/us-srilanka-impeachment-idUSBRE90209D20130103.
12. Gulsen Solaker, Turkish Judge Defies Erdogan with Attack on “Dire” Allegations,
REUTERS, Apr. 25, 2014, available at http://www.reuters.com/article/2014/04/25/us-turkey-
judiciary-idUSBREA3O17S20140425.
13. Venice Commission Head Concerned About Attacks Against Turkish Constitutional
Court, HÜRRIYET DAILY NEWS, Apr. 30, 2014, available at http://www.hurriyetdaily
news.com/venice-commission-head-concerned-about-attacks-against-turkish-constitutional-
court-.aspx?pageID=238&nID=65788&NewsCatID=359.
2015] STRONG COURTS FOR NEW DEMOCRACIES? 289
are more likely to be placed under stress when courts have and
exercise strong-form review powers than when they do not.
Accordingly, strong-form judicial review may result in imposing
additional and, from a rule of law/constitutional democracy
perspective, arguably unnecessary pressures and strains in an already
difficult context. At the same time, judicial review can and has
performed valuable functions in democratic transitions, as the
explanatory theories suggest, so that doing without this institution at
all in this context may also sometimes be sub-optimal.18
Accordingly, weak-form review provides a third alternative to either
strong-form review or no judicial review that may perform many of
the former’s beneficial functions in the transitional context, but in a
less confrontational way that reduces the risk of systemically
counterproductive political attacks on judicial independence. It is
also an alternative to other mechanisms for reducing this risk, such as
relying on judicial self-restraint and strategic limitation to “safe”
cases.19
Part I briefly surveys the various existing forms of judicial
review and documents the near-universal presence of its strong-form
among new and transitional democracies. Part II provides more
details of some of the recent actual and threatened political
backlashes against courts and what they are backlashes against. Part
III argues that judicial independence is the most essential goal and
value concerning courts in the transition to stable democracy and
explains why, practically, achievement of this goal may be
undermined by political reactions to strong-form judicial review.
Part IV suggests that weak-form review may sometimes help to
reduce this tension as well as spread constitutionalist modes of
responsibility and engagement more widely among the political
institutions of a fledgling democracy. Finally, Part V reviews and
underscores the nature of my claims for weak-form judicial review in
this Article, as well as their limits.
18. This is not to deny that sometimes, especially where they were established and
captured by the old authoritarian regime prior to democratization, constitutional courts can
impede rather than enhance the democratic transition. See Asli Bâli, Courts and
Constitutional Transition: Lessons from the Turkish Case, 11 INT’L. J. CONST. L. 666, 698
(2013) (providing an example of a constitutional court impeding democratic transition).
19. See Lee Epstein, Jack Knight & Olga Shvetsova, The Role of Constitutional Courts
in the Establishment and Maintenance of Democratic Systems of Government, 35 L. &
SOC’Y REV. 117 (2001) (arguing, based primarily on the Russian example, that to survive as
independent and legitimate institutions, constitutional courts should avoid highly charged
political disputes and strategically limit themselves to “safe” cases).
2015] STRONG COURTS FOR NEW DEMOCRACIES? 291
20. See GINSBURG, supra note 1, at 6−9 (listing seventy-two countries as “third wave”
democracies that have adopted a form of judicial review, including virtually every post-
Soviet constitution, and many countries in Latin America, Africa, and Asia); see also
Lorraine E. Weinrib, The Postwar Paradigm and American Exceptionalism, in THE
MIGRATION OF CONSTITUTIONAL IDEAS (Sujit Choudhry ed., 2006).
21. This is also sometimes referred to as the distinction between concentrated and
diffuse judicial review, or between the European and American models of judicial review.
22. See GINSBURG, supra note 1, at 7−8 (listing thirty-four out of the seventy-two new
and transitional democracies as adopting constitutional review only by a specialized
constitutional court).
23. See id.; see also Tom Ginsburg & Mila Versteeg, Why Do Countries Adopt
Constitutional Review?, 30 J.L. ECON. & ORG. 587 (2014).
24. See id.
25. See Issacharoff, supra note 3.
292 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:285
power can and does take two main forms. In Canada, a judicial
decision is authoritative unless affirmatively overridden by
parliamentary vote.30 In the other jurisdictions adopting this model,
the exercise of judicial review is declaratory only, and thus without
any legal consequences for a statute in the absence of subsequent
legislative amendment or repeal.31
Conceptually, these two distinctions among types of judicial
review are cross-cutting ones, in that both a centralized and
decentralized system of judicial review could be either strong or
weak.32 In practice, however, since the beginning of the third wave
of democratization, where new and transitional democracies have
established judicial review (which, as we have seen, is virtually
everywhere) it has almost all been of the strong-form variety.33
Although weak-form judicial review has been in existence at least
since 1982, with subsequent variations enacted in 1990 and 1998,
thus far it has mostly been limited to established democracies;
indeed, it has been limited to established parliamentary democracies
of the Westminster-type within the Commonwealth.34 The two main
30. Canadian Charter of Rights and Freedoms § 33(1), Part I of the Constitution Act,
1982, being Schedule B to the Canada Act, 1982, c. 11 (U.K.) (“Parliament or the legislature
of a province may expressly declare in an Act of Parliament or of the legislature, as the case
may be, that the Act or a provision thereof shall operate notwithstanding a provision
included in section 2, or sections 7 to 15 of this Charter.”).
31. This is the case in the United Kingdom, the Australian Capital Territory, and the
State of Victoria. In New Zealand, courts are not expressly empowered to issue such
declarations of incompatibility, although a judgment of incompatibility is implicit in the
courts’ decision to apply section 4 of New Zealand Bill of Rights (NZBORA). See Paul
Rishworth, The Inevitability of Judicial Review under “Interpretive” Bills of Rights:
Canada’s Legacy to New Zealand and Commonwealth Constitutionalism?, in
CONSTITUTIONALISM IN THE CHARTER ERA 233 (G. Huscroft et al. eds., 2004). In these
jurisdictions, judicial rights decisions may also be interpretive rather than declaratory, under
one of several provisions requiring courts to give rights-consistent interpretations of statutes
wherever possible, regardless of more traditional and constrained modes of statutory
interpretation. See e.g., Human Rights Act, 1988, § 4 (Eng.); Bill of Rights Act 1990 § 4
(N.Z.). Such statutory interpretations may be overridden by ordinary legislative vote in the
usual way.
32. Examples of centralized weak-form judicial review are Romania and Poland. See
infra notes 35−37 and accompanying text.
33. No country in Ginsburg’s list has a version of weak-form review. See GINSBURG,
supra note 1, at 7–8.
34. Israel and Ireland are partial exceptions to this latter proposition, in that as non-
Commonwealth members, they have institutionalized limited, but not full, versions of weak-
form judicial review. In Israel, the Basic Law: Freedom of Occupation, one of twelve Basic
Laws, was reenacted in 1994 with a “notwithstanding” provision (in section 8) permitting
the Knesset to immunize a statute from the Basic Law by a majority vote of its members if
294 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:285
II. BACKLASHES
expressly so stated when enacted. In passing the European Convention on Human Rights
Act 2003, Ireland borrowed much of the structure of the United Kingdom’s Human Rights
Act 1998, including the judicial declaration of incompatibility mechanism. However, within
the Irish legal system this amounts to a supplementary set of statutory rights (incorporating
those under the European Convention on Human Rights) in addition to those already
contained in its supreme law constitution with full powers of judicial review. But cf. Rivka
Weill, The New Commonwealth Model of Constitutionalism Notwithstanding: On Judicial
Review and Constitution-Making, 62 AM. J. COMP. L. 127, 168–69 (2014) (arguing that the
process of constitution-making rather than constitutional text or powers should determine
classification as a new Commonwealth model jurisdiction and that, under this criterion,
Israel and certain central and eastern European countries qualify for inclusion).
35. See Lech Garlicki, The Experience of the Polish Constitutional Court, in
CONSTITUTIONAL JUSTICE, EAST AND WEST: DEMOCRATIC LEGITIMACY AND CONSTITUTIONAL
COURTS IN POST-COMMUNIST EUROPE IN A COMPARATIVE CONTEXT 265 (Wojciech Sadurski
ed., 2002). In the Romanian case, the override could be used only on abstract review before
a statute was promulgated. See CONSTITUŢIA ROMÂNIEI [CONSTITUTION OF ROMANIA] art.
145 (abolished by constitutional amendment in 2003 as part of Romania’s successful
application to join the European Union).
36. See Garlicki, supra note 35.
37. See GARDBAUM, supra note 14, at 31–32.
38. See Epstein, Knight & Shretsova, supra note 19; see also Herbert Hausmaniger,
Towards a “New” Russian Constitutional Court, 28 CORNELL INT’L L.J. 349 (1995)
(describing and analyzing the judicial, extra-judicial, and presidential actions leading to the
suspension of the First Russian Constitutional Court in 1993 and its replacement by the
Second in 1995).
2015] STRONG COURTS FOR NEW DEMOCRACIES? 295
A. Hungary
39. Samuel Issacharoff’s term “fragile democracies” nicely captures this point.
Samuel Issacharoff, Fragile Democracies, 120 HARV. L. REV. 1405 (2007).
40. After the 2010 elections, Fidesz held 68% of the seats in the unicameral parliament
although it received less than 53% of the vote in the combined single member and party list
electoral system. See A.L.B., Business as Usual in Budapest, ECONOMIST: EASTERN
APPROACHES (Apr. 19, 2011, 1:57 PM), http://www.economist.com/blogs/easternappro
aches/2011/04/hungarys_controversial_constitution.
41. A MAGYAR KÖZTÁRSASÁG ALKOTMÁNYA [CONSTITUTION OF THE REPUBLIC OF
HUNGARY] art. 24 (8).
42. See Kim Lane Scheppele, How to Evade the Constitution: The Hungarian
Constitutional Court’s Decision on Judicial Retirement, Part I, VERFASSUNGSBLOG (Aug. 9,
2012), http://www.verfassungsblog.de/evade-constitution-case-hungarian-constitutional-
courts-decision-judicial-retirement-age/#.VHYky03wt9B.
43. A MAGYAR KÖZTÁRSASÁG ALKOTMÁNYA [CONSTITUTION OF THE REPUBLIC OF
HUNGARY], art. 24(4).
44. Id. at art. 24(2)(d).
296 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:285
45. Id. at amend. IV, art. 19(2); Kim Lane Scheppele, Constitutional Revenge, N.Y.
TIMES, Mar. 1, 2013, available at http://krugman.blogs.nytimes.com/2013/03/01/guest-post-
constitutional-revenge (describing the Fourth Amendment as a “mega” amendment).
46. A MAGYAR KÖZTÁRSASÁG ALKOTMÁNYA [CONSTITUTION OF THE REPUBLIC OF
HUNGARY] amend. IV, art. 14.
47. Alkotmánybíróság (AB) [Constitutional Court] Oct. 24, 1990, 23/1990 (Hung.).
48. Id. at 14/1995 (Hung.) (The principle of equal dignity requires same treatment of
heterosexuals and homosexuals in domestic partnership law.).
49. Alkotmánybíróság (AB) [Constitutional Court] June 30, 1995, 43/1995 (Hung.)
(invalidating government’s austerity program).
50. See, e.g., LÁSZLÓ SOLYOM & GEORG BRUNNER, CONSTITUTIONAL JUDICIARY IN A
NEW DEMOCRACY: THE HUNGARIAN CONSTITUTIONAL COURT (2000); Gabor Halmai, The
Hungarian Approach to Constitutional Review: The End of Activism? The First Decade of
the Hungarian Constitutional Court, in CONSTITUTIONAL JUSTICE, EAST AND WEST:
DEMOCRATIC LEGITIMACY AND CONSTITUTIONAL COURTS IN POST-COMMUNIST EUROPE IN A
COMPARATIVE CONTEXT 189 (Wojciech Sadurski ed., 2002); Kim Lane Scheppele, The New
Hungarian Constitutional Court, 8 E. EUR. CONST. REV. 81 (1999); Spencer Zifcak,
Hungary’s Remarkable, Radical, Constitutional Court, 3 J. CONST. L. E. & CENT. EUR. 1
(1996).
51. See Issacharoff, supra note 3, at 973 (citing Kim Lane Scheppele, Democracy by
2015] STRONG COURTS FOR NEW DEMOCRACIES? 297
B. South Africa
Judiciary (Or, Why Courts Can be More Democratic than Parliaments), in RETHINKING THE
RULE OF LAW AFTER COMMUNISM 25, 44 (Adam Czarnota, et al. eds., 2005)).
52. Until the post-2010 changes, which created a single twelve-year term,
constitutional court judges were permitted to have their nine-year terms renewed once.
1989. évi XXXII. törvény az Alkotmánybíróságról (Act XXXII of 1989 on the
Constitutional Court) art. 8(3) (Hung.).
53. Historical Archive of Parliamentary Election Results: Elections Held in 2002,
INTER-PARLIAMENTARY UNION, http://www.ipu.org/parline-e/reports/arc/2141_02.htm (last
visited Nov. 2, 2014).
54. Hungarian Center-Right Wins Supermajority, B92 (Apr. 26, 2010, 10:25 AM),
http://www.b92.net/eng/news/region.php?yyyy=2010&mm=04&dd=26&nav_id=66725.
55. Minister of Health v. Treatment Action Campaign 2002 (5) SA 721 (CC) (S. Afr.);
Gov’t of the Republic of S. Afr. v. Grootboom 2000 (1) SA 46 (CC) (S. Afr.).
56. State v. Makwanyane 1995 (3) SA 391 (CC) (S. Afr.).
298 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:285
C. Romania
57. Minister of Home Affairs v. Fourie 2006 (1) SA 524 (CC) (S. Afr.) (One justice
dissented from the remedy of the suspended declaration of invalidity and would have
immediately read a right to same-sex marriage into the statute.).
58. Glenister v. President of the Republic of S. Afr. 2011 (3) SA 347 (CC) (S. Afr.).
59. Justice Alliance of S. Afr. v. President of the Republic of S. Afr. 2011 (5) SA 388
(CC) (S. Afr.).
60. Pierre De Vos, On the Appointment of a Chief Justice, CONSTITUTIONALLY
SPEAKING (July 29, 2011), http://constitutionallyspeaking.co.za/on-the-appointment-of-a-
chief-justice.
61. See id.
62. See McKaiser, supra note 7.
63. See McKaiser, supra notes 7–8 and accompanying text.
64. Buckley, supra note 9.
2015] STRONG COURTS FOR NEW DEMOCRACIES? 299
65. The power struggle itself is in part due to uncertainty in the constitutional text of
the respective powers of the two executive offices. See id.
66. Michael Haggerson, Romania Court: Majority of Electorate Must Turn Out for
Vote to Remove President, JURIST (July 11, 2012, 7:52 AM), http://jurist.org/
paperchase/2012/07/romania-court-majority-of-electorate-must-turn-out-for-vote-to-remove-
president.php.
67. The turnout was 46.2% of officially registered voters. See Romanian Court
Declares Impeachment Referendum Void, GUARDIAN, Aug. 21, 2014, available at
http://www.theguardian.com/world/2012/aug/21/romanian-court-declares-referendum-void.
68. See id.
69. See Buckley, supra note 9.
70. Political Capital, Independent Constitutional Courts: One Man’s Joy is Another
Man’s Pain, RISK & FORECAST (July 2, 2010), http://riskandforecast.wordpress.com/
2010/07/02/independent-constitutional-courts-one-mans-joy-is-another-mans-pain.
71. Id.
300 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:285
D. Egypt
72. See Jeffrey Fleishman & Reem Abdellatif, Egypt President Mohamed Morsi
Expands Authority in Power Grab, L.A. TIMES, Nov. 22, 2012, available at
http://articles.latimes.com/2012/nov/22/world/la-fg-egypt-morsi-powers-20121123.
73. CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 11 Sept. 1971, as amended, May
22, 1980, May 25, 2005, March 26, 2007, November 30, 2012, art. 176.
74. Connor Molloy, Why the Reduction in SCC justices?, DAILY NEWS EGYPT (Dec.
24, 2012), http://www.dailynewsegypt.com/2012/12/24/why-the-reduction-in-scc-justices.
75. CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 11 Sept. 1971, as amended, May
22, 1980, May 25, 2005, March 26, 2007, November 30, 2012, art. 177 (“The President of
the Republic or [Parliament] shall present draft laws governing presidential, parliamentary or
local elections before the Supreme Constitutional Court, to determine their compliance with
the Constitution prior to their dissemination.”).
76. Egypt’s Supreme Court Dissolves Parliament and Outrages Islamists, GUARDIAN,
June 14, 2012, available at http://www.theguardian.com/world/2012/jun/14/egypt-
parliament-dissolved-supreme-court.
2015] STRONG COURTS FOR NEW DEMOCRACIES? 301
E. Sri Lanka
77. Divi Neguma Needs Two-Thirds Majority and Referendum to be Passed in Present
Form: SC, DAILY FT (Nov. 7, 2012 1:07 AM), http://www.ft.lk/2012/11/07/divi-neguma-
needs-two-thirds-majority-and-referendum-to-be-passed-in-present-form-sc.
78. Sri Lanka Ruling Party MPs Move to Impeach Top Judge, EXPRESS TRIBUNE (Nov.
1, 2012), http://tribune.com.pk/story/459260/sri-lanka-ruling-party-mps-move-to-impeach-
top-judge.
79. See Sirilal & Aneez, supra note 11.
80. Appeal Court Judges Get Threatening Calls, DAILY MIRROR (SRI LANKA) (Jan. 8,
2013, 5:43 PM), http://www.dailymirror.lk/top-story/24844-appeal-court-judges-get-threat
ening-calls.html.
81. See Sri Lanka: New Chief Justice Sworn In, N.Y. TIMES, Jan. 15, 2013, available
at http://www.nytimes.com/2013/01/16/world/asia/sri-lanka-new-chief-justice-sworn-
in.html.
302 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:285
F. Turkey
82. See Divi Neguma Bill Passed, COLOMBO GAZETTE (Jan. 8, 2013 7:59 PM),
http://colombogazette.com/2013/01/08/divi-neguma-bill-passed.
83. See Bâli, supra note 18 (describing previous skirmishes between the constitutional
court and the AKP government).
84. See Ceylan Yeginsu, Turkey Lifts Ban on Twitter After Court Calls it Illegal, N.Y.
TIMES, Apr. 3, 2014, available at http://www.nytimes.com/2014/04/04/world/
middleeast/turkey-lifts-ban-on-twitter.html?_r=1.
85. See Erika Johnsen, Top Court to Turkish PM: Sorry, But You Can’t Block
YouTube, Either, HOT AIR (May 31, 2014, 7:01 PM), http://hotair.com/archives/2014/
05/31/top-court-to-turkish-pm-sorry-but-you-cant-block-youtube-either.
86. See Solaker, supra note 12; Venice Commission Head Concerned about a Tax
Against Turkish Constitutional Court, supra note 13; see also Dorian Jones, Tensions Rise
Between Turkey’s Government and Courts, VOICE OF AMERICA (Apr. 15, 2014, 3:57 PM),
http://www.voanews.com/content/tensions-rise-between-turkeys-government-and-courts/189
4177.html.
87. See Suzy Hansen, A Guy Who Lives in Pennsylvania May be Taking Down the
Entire Turkish Government: A Profile of Fetullah Gulen, the Prime Minister’s Greatest
Enemy, NEW REPUBLIC, Dec. 26, 2013, available at http://www.newrepublic.com/
article/116044/fethullah-gulen-turkish-prime-minister-erdogans-biggest-rival.
2015] STRONG COURTS FOR NEW DEMOCRACIES? 303
88. See Solaker, supra notes 12; Venice Commission Head Concerned about a Tax
Against Turkish Constitutional Court, supra note 13.
89. See, e.g., Justice John Dyson Heydon, Lecture at the Oxford Faculty of Law: Are
Bills of Rights Necessary in Common Law Systems? (Jan. 23, 2013) (outline available at
http://www.innertemple.org.uk/downloads/members/lectures_2013/lecture_heydon_2013.
pdf).
90. To say that the independence of the judiciary is necessary for the rule of law and
constitutional democracy is not to deny that in specific contexts, the complete or absolute
autonomy of the judiciary and insulation from any form of democratic accountability can
serve to impede rather than enhance a democratic transition. For the Turkish example, see
Bâli, supra note 18.
91. In distinguishing between judicial review and the independence of the judiciary, I
am obviously rejecting a view that sees judicial review as necessary for, or constitutive of,
304 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:285
such independence, contrary to the account, for example, of Gretchen Helmke & Frances
Rosenbluth, Regimes and the Rule of Law: Judicial Independence in Comparative
Perspective, 12 ANN. REV. POL. SCI. 345, 353−54 (2009).
92. As distinct from the type of criticism that particular judiciaries are not sufficiently
independent or, more rarely, too independent (for example, Turkey and India).
93. WALTER BAGEHOT, THE ENGLISH CONSTITUTION (1867).
94. See Daryl Levinson & Richard Pildes, Separation of Parties, Not Powers, 119
HARV. L. REV. 2312 (2006) (discussing the presidential system in the U.S. context).
95. See EOIN CAROLAN, THE NEW SEPARATION OF POWERS: A THEORY FOR THE
MODERN STATE (2009).
96. Act of Settlement, 1701, 12 & 13 Will. 3, c. 2 § 3 (Eng.).
2015] STRONG COURTS FOR NEW DEMOCRACIES? 305
97. The Lord Chancellor’s position as head of the judiciary and traditional role in the
appointment of judges were abolished by the Constitutional Reform Act 2005. On the new
appointments process, see infra note 118.
98. See Anja Seibert-Fohr, Introduction: The Challenge of Transition, in JUDICIAL
INDEPENDENCE IN TRANSITION 1, 9 (Anja Seibert-Fohr ed., 2012).
99. See VICKI C. JACKSON & MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW
538–40 (3d ed. 2014).
100. I am bracketing for current purposes such refinements of these basic elements as
internal (vis-à-vis more senior judges or courts) versus external (vis-à-vis non-judicial
institutions) independence, or the independence of the individual judge versus that of the
judiciary as a whole.
101. Sherrod Brown & Christopher Smith, Judicial Independence in the PRC,
Congressional-Executive Commission on China, http://www.cecc.gov/judicial-independence
-in-the-prc (last visited Dec. 28, 2014).
102. See, e.g., Organization for Security and Co-operation in Europe (OSCE),
Concluding Document of the Vienna Meeting 1986 of Representatives of the Participating
States of the Conference on Security and Co-operation in Europe 7 (participating states
promised to ensure “the right to a fair and public hearing within a reasonable time before an
independent and impartial tribunal.”) (emphasis added).
306 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:285
103. Indeed, such full autonomy can, in certain contexts, impede democratic transition.
See, e.g., Bâli, supra note 18.
104. See JUDICIAL INDEPENDENCE IN TRANSITION, supra note 98, at 9.
105. Hans Kelsen, La Garantie Juridictionnelle de la Constitution, 44 REVUE DE DROIT
PUBLIC 197 (1928).
2015] STRONG COURTS FOR NEW DEMOCRACIES? 307
Courts should not be cast in the role of the first or only line of
defense. Exercises of judicial review can place great strain on a
fledgling or brittle democracy, as the examples of the Egyptian court
closing the then-recently elected parliament and the Turkish court’s
insistence on its brand of secularism illustrate.106 From this
perspective, strong-form judicial review may be a luxury rather than
a necessity for newer democracies, which must be able to walk with
the ordinary judicial independence of a trial court before they can run
with the Bundesverfassungsgericht.107
On the second, more internal, element of judicial
independence, the risk of resulting politicization occurs in the
following way. Because of the power they wield under judicial
supremacy, the claim that constitutional court judges should be given
whatever partial or indirect democratic accountability they can be
given is generally viewed as an irresistible one.108 As a result,
judicial appointments to these courts become political appointments,
and, while there are several well-known variations in the precise
mode of legislative/executive selection, in almost all forms political
affiliation is known and taken into account. As a result,
appointments are not only made by politicians but are also made (at
least in part) for political reasons.109 However, this often leads to
constitutional court judges deciding important and close cases along
predictable party or ideological lines, which threatens to undermine
the second requirement of judicial independence: impartiality. Not
in the sense of inputs or pressure—as life tenure or a long, fixed,
non-renewable term insulates appointees once in office110—but in
terms of outputs, of how courts make their decisions. As John Stuart
Mill put it in his Considerations on Representative Government
(1861): “While there are no functionaries whose special and
113. See John Ferejohn & Pasquale Pasquino, Constitutional Adjudication: Lessons
from Europe, 82 TEX. L. REV. 1671, 1700−04 (2004).
114. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT
AT THE BAR OF POLITICS
111−98 (2d ed. 1986).
115. Again, this is the explanatory theory of, and prescription for, successful survival of
constitutional courts in Epstein, Knight & Shvetsova, supra note 19, at 17−20.
116. For the actual and potential use of versions of both these first and second
techniques (which he refers to as “dialogic judicial review”) in Asian common law
jurisdictions and the argument that this results in more effective rights protection than use of
their invalidation powers in the context of strong one-party states in the region, see PO JEN
YAP, CONSTITUTIONAL DIALOGUE IN COMMON LAW ASIA (forthcoming 2015).
117. S. AFR. CONST. § 172(1)(b)(ii), 1996
310 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:285
118. The Canadian Charter is silent on this remedy, but it was first employed as an
emergency measure in the 1985 case of Re Manitoba Language Rights, [1985] 1 S.C.R. 721,
and “regularized” in Schachter v. Canada, [1992] 2 S.C.R. 679.
119. Minister of Home Affairs v. Fourie 2006 (1) SA 524 (CC) (S. Afr.).
120. The date set as the deadline in the Fourie judgment of December 1, 2005 was
November 30, 2006. The Act permitted two people, regardless of gender, to form either a
marriage or a civil partnership, and co-exists alongside the Marriage Act as a second option
that couples may choose. An example of a suspended declaration of invalidity that came
into effect following the legislature’s failure to act within the court’s one year deadline was
the Hong Kong Court of Final Appeal’s judgment in W v. Registrar of Marriages [2013]
HKCFA 39 (13 May 2013), holding that in denying marriage to transgendered people in
their acquired sex the Marriage Ordinance violated the right to marry under article 37 of the
Basic Law.
121. See South Africa: Zuma Slammed for Views on Homosexuality, Same-Sex
Marriage, IRIN (Sept. 27, 2006), http://www.irinnews.org/fr/report/61195/south-africa-
zuma-slammed-for-views-on-homosexuality-same-sex-marriage.
2015] STRONG COURTS FOR NEW DEMOCRACIES? 311
122. Alec Stone Sweet, A Cosmopolitan Legal Order: Constitutional Pluralism and
Rights Adjudication in Europe, 1 GLOBAL CONSTITUTIONALISM 53, 66 (2012).
123. Id.
124. Several of the specific amendments in the “mega” Fourth Amendment in Hungary
reintroduce measures temporarily limited or withdrawn as a result of concerns expressed by
the Venice Commission of the European Union.
125. See Graham Gee, The Persistent Politics of Judicial Selection: A Comparative
Analysis, in JUDICIAL INDEPENDENCE IN TRANSITION, supra note 98, at 121.
312 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:285
institutions. In doing so, it holds out the promise of lowering the risk
of direct political attacks, which, once instigated, often end in
wholesale reductions in judicial independence. In other words, from
the perspective of stabilizing democratic transitions, it may be better
that the political institutions have a lawful outlet for their
disagreements with specific judicial decisions on (some or all)
constitutional issues rather than leaving them with only the blunter
instruments of general tampering with judicial powers, jurisdictional
grounds, composition, or routine constitutional amendment. Apart
from its backlash against the courts, the recent Hungarian experience
of frequent and wholesale amendment threatens to obliterate the
distinction between constitutional and ordinary politics—that is,
between the framework and the daily conduct of governance—that is
also widely thought to be essential to a successful transition.
Accordingly, the question is not only whether to have a constitutional
court, but also what available range of review powers to give it, and
where the final legal authority is allocated. Once again, judicial
supremacy is not an essential part of either judicial independence or
constitutional review. A check on legislative or executive power
need not amount to an absolute judicial veto within the existing
constitution.
Second, where courts have lesser powers of constitutional
review, it is easier to resist the call for the type of indirect democratic
accountability that a political appointments process is thought to
bestow. In this way, weak-form review may result in both more
impartial and independent judges and judicial reasoning, and more
direct democratic accountability for ultimate resolutions of
constitutional issues. This contrasts with the more politically tinged
and, at the time they are made, wholly unaccountable judicial
decisions that are final under standard judicial review. Since
establishing its system of weak-form judicial review, the United
Kingdom has established a fully independent judicial appointments
commission to replace the traditional opaque and clubby method of
merit/seniority appointment by the Lord Chancellor.126 Such a move
towards politically independent appointment is hard to imagine—and
perhaps defend—under strong-form review. Even those countries
that have moved away from executive control towards appointment
by self-governing judicial councils for their ordinary courts—such as
Italy, Spain, and Romania—still tend to have a separate, more
political appointments process for the constitutional court.127
126. This independent judicial appointments commission was established under the
Constitutional Reform Act 2005.
127. India is currently an exception, with its self-governing collegium for higher judicial
2015] STRONG COURTS FOR NEW DEMOCRACIES? 313
C. Conclusion
129. James Bradley Thayer, John Marshall, in JAMES BRADLEY THAYER, OLIVER
WENDELL HOLMES & FELIX FRANKFURTER ON JOHN MARSHALL 82−88 (1967).
2015] STRONG COURTS FOR NEW DEMOCRACIES? 315
there are reasons for thinking that constitutional courts will be unable
or unwilling to exercise the sort of judicial self-restraint that certain
difficult and potentially combustible situations call for and that
characterized some of the most successful courts in their early
years,132 then weak-form review may sometimes be a helpful
institutional tool as a form of external restraint. Moreover, in certain
contexts in which constitutional courts were established under, or
captured by, the old, authoritarian regime and continue to serve the
same elite or narrow interests after democratization, reducing their
powers via weak-form review may be an alternative—or
supplement—to altering their composition, mode of appointment,
and accountability.133
Second, of course weak-form review by itself will not solve
the problem of fragile democracies, any more than traditional strong-
form review by constitutional courts alone, and must be part of a
package of structural/institutional and other measures designed to
reinforce the typical stress points. The most prominent general
problem for successful transitions from authoritarianism to stable
democracy is the history of overly strong executives and the need to
provide meaningful checks on them without either flipping to overly
powerful legislatures or rendering the political system
ungovernable.134 To rely on courts as the first or only line of defense
is a recipe for disaster, given their political weakness, their lack of
either “sword or purse,” so there needs to be earlier and multiple
buffers in place.
For example, Hungary’s parliamentary system has twice
enabled Fidesz, by no means a dominant political party of the ANC-
type in South Africa, to acquire the two-thirds supermajority needed
to amend the constitutional system and engage in what David Landau
132. As is well-known, the U.S. Supreme Court did not invalidate another act of
Congress between Marbury v. Madison, 5 U.S. 137 (1803) and Dred Scott v. Sandford, 60
U.S. 393 (1856), although even in this latter case it is uncertain whether the Court actually
invalidated the Missouri Compromise or, having first found that it lacked jurisdiction to hear
the case, whether what it said on the subject was dicta. See DAVID M. POTTER, THE
IMPENDING CRISIS: 1848–1861 281–86 (1976). On the early judicial restraint of the German
Constitutional Court, see Niels Petersen, The Rise of Balancing in German Fundamental
Rights Adjudication (unpublished manuscript) (on file with author).
133. As is arguably the case, for example, in Turkey. See Bâli, supra note 18, at
690–97; see also, supra notes 72–76 and accompanying text.
134. See Sujit Choudhry & Richard Stacey, Semi-Presidentialism as a Form of
Government: Lessons for Tunisia 1−3 (Ctr. for Constitutional Transitions at NYU Law,
Working Paper No. 2, 2013), available at http://constitutionaltransitions.org/consolidating-
arab-spring.
2015] STRONG COURTS FOR NEW DEMOCRACIES? 317
135. David Landau, Abusive Constitutionalism, 47 U.C. DAVIS L. REV. 189, 195 (2013).
136. Kim Lane Scheppele, Hungary, An Election in Question, Part 2, N.Y. TIMES, Feb.
28, 2014, available at http://krugman.blogs.nytimes.com/2014/02/28/hungary-an-election-
in-question-part-2/?_r=0.
137. Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633 (2000).
138. See Landau, supra note 135, at 208−09.
139. See Choudhry & Stacey, supra note 134, at 5.
140. See CAROLAN, supra note 95.
318 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:285
141. One study suggests that approximately ten percent of the constitutional court’s
decisions were overridden by the Polish parliament between 1990 and 1997. See Garlicki,
supra note 35, at 279.
142. As, for example, under the Canadian Charter of Rights and Freedoms. Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to
the Canada Act, 1982, c. 11 (U.K.).
143. See Issacharoff, supra note 3, at 987.
2015] STRONG COURTS FOR NEW DEMOCRACIES? 319
CONCLUSION
144. See SRI LANKA CONST. art. 84 § 2, Sept. 7, 1978 (This is the general special
majority provision.). Article 145G, at issue in the Divi Neguma episode discussed supra
Part II, is a particular one to the same effect. Although these provisions look similar to
constitutional amendment procedures in many constitutions—including the Sri Lankan
Constitution itself—the difference between enacting a bill via the special majority procedure
and amending the constitution is (as Article 84 § 3 points out) that the statute can
subsequently be amended or repealed by an ordinary majority in the normal way. See id. at
84 § 3.
145. See Samuel Issacharoff, The Democratic Risk to Democratic Transitions, 5 CONST.
COURT REV. 1 (2014).
320 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [53:285
146. Justice Albie Sacks of the South African Court has said in answer to the question
of whether his court is an activist one: “Yes: but we have an activist constitution.”
Mpumelelo Mkhabela, The End of an Era: Retiring Judge Albie Sachs Talks to Mpumelelo
Mkhabela About the Most Marvellous Job in the World, THE NEWS MONITOR, available at
http://www.newsmonitor.co.za/newsmonitor/view/newsmonitor/en/page28457?oid=1065662
&sn=Article%20Detail&pid=558&highlight= (last visited Jan. 7, 2015); see Tales of
Terrorism: I Was Thirty-Nine Years Old and Quietly Teaching Law at Southampton
University When I Discovered I was a Terrorist, SOAS UNIV. OF LONDON (Nov. 2, 2006),
http://www.soas.ac.uk/lawpeacemideast/events/lecture/2006.