The politics of judicial review in Chile in the era of democratic transition, 1990–2002

The study addresses the politics and effects of judicial review in Chile. It concludes that by and large the Chilean courts have refused to exercise their constitutional review powers in defence of individual rights. Although this suggests that Chile represents a ‘negative model’ of judicial review in transitional democracies, the author argues that such an understanding would be simplistic. The Chilean courts' reluctance to exercise their review powers represents the continuation of a long-held strategic stance of avoiding politically controversial cases. This in turn has contributed to the preservation of the autonomy and political independence that has historically allowed the Chilean judiciary to play a crucial role in the promotion and maintenance of the legality that characterises this country. Merging the insights of two academic fields that rarely communicate – democratization studies and public law and courts – the author proposes that prematurely introducing judicial review of the constitution in non-consolidated democracies could actually make things worse. This, because it introduces irresistible incentives for government intervention in the work of the courts, thus destroying a sine qua non of the rule of law: judicial independence.     

The constitutional court and control of presidential extraordinary powers in Colombia

This study analyzes the attempts of Colombia's Constitutional Court to control the abuse of presidential emergency powers in the last decade. After describing the dilemmas that governmental emergency powers pose to constitutional regimes and explaining some particularities of Colombia as a democracy under permanent emergency, the account focuses on the efforts of the Constitutional Court to exercise a ‘material’ control of the declaration of a state of emergency by the President. According to this legal doctrine, it is the duty of the court to analyze if the facts invoked by the government constitute a crisis severe enough to justify the use of emergency powers. The analysis shows that the court has exercised this material control in a quite strict way and has nullified several declarations of a state of emergency by different presidents. The study goes on to show how this form of judicial review has been possible in a country like Colombia, with a precarious democracy and a cruel armed conflict. It describes also the impact of this form of judicial control in Colombian politics and offers some more general conclusions based on Colombian experience.     

Judicialization of politics or politicization of the judiciary? Recent trends in Latin America

This article examines the judicialization of politics in Latin America with particular reference to Mexico and Argentina. It surveys several inter-connected processes with regard to the democratic aspiration of building the rule of law and enhancing citizenship. More than ever before regime legitimacy is linked to the credibility and success of rule of law construction. At the same time, judicial institutions and legal processes have acquired an unprecedented public and political centrality, as judges are called upon to resolve political disputes and engage in the judicial and legal review of governmental processes. Moreover civil society in varying degrees is increasingly resorting to legal mechanisms as one means of reclaiming and advancing citizenship rights. However, this process of judicialization of politics in young democracies does not necessarily imply improvement in regard to the rule of law. And a failure to live up to expectations concerning the rule of law is placing an additional burden on the embattled democracies of the region.     

Cooperation and stability in the mediterranean: An agenda for partnership

Turkey, a candidate state that started negotiating membership in the EU in 2005, has witnessed serious political conflict since April 2007 when the military threatened to intervene once again in the political process. The Chief Prosecutor filed closure cases before the Constitutional Court first against the Democratic Society Party, the first pro-Kurdish party to enter parliament, and then against the ruling Justice and Development Party (AKP) which won a landslide election victory in the parliamentary elections of July 2007. The Court decided by the slimmest of margins against the closure of AKP, allowing the country to narrowly escape one of its worst political crises. The attempted “judicial coup” can only be explained by the state ideology of and the nature of democracy in Turkey. The political conflicts are related not to a fight over dismantling or protecting secularism, but to the power struggle between old and new elites in the country.     

Party prohibition cases: different approaches by the Turkish constitutional court and the European Court of Human Rights

The article deals with the different approaches followed by the Turkish Constitutional Court and the European Court of Human Rights (ECtHR) in party prohibition cases. The Turkish Constitution and even more so the Law on Political Parties contain a long list of party bans, the violation of which leads to the closure of the party by the Constitutional Court. The Turkish Constitutional Court, both under the 1961 and the 1982 Constitutions, interpreted these provisions in an exceedingly illiberal manner, and has so far closed down a total of 24 political parties. Turkish rules and practices concerning the prohibition of political parties are among the most important ‘democracy deficits’ of the Turkish political system. In the article, the Turkish Court's illiberal approach to party prohibition cases, especially those involving the protection of the national and territorial integrity of the state and of the principle of secularism, is compared with the much more liberal criteria developed by the ECtHR and the Venice Commission.     

Leadership Style, Regime Type, and Foreign Policy Crisis Behavior: A Contingent Monadic Peace?

While a substantial body of theory suggests that democracies should behave peacefully toward all states (monadically), most empirical evidence indicates they are only pacific in their relations with fellow democracies (dyadically). A new theoretical synthesis suggests that the missing link between democratic constraints and pacific monadic behavior is leaders' perceptions of, and responses to, these constraints. Research on political leadership indicates that, contrary to conventional wisdom, leaders respond in systematically different ways to domestic constraints: "constraint respecters" internalize constraints in their environments, while "constraint challengers" view such constraints as obstacles to be surmounted. An analysis of 154 foreign policy crises provides strong support for this contingent monadic thesis: democracies led by constraint respecters stand out as extraordinarily pacific in their crisis responses, while democracies led by constraint challengers and autocracies led by both types of leaders are demonstrably more aggressive.     

Judicial independence and state-business relations: the case of Taiwan’s ordinary courts

The question of how ordinary courts in new and emerging democracies may gain judicial independence remains an understudied subject compared to its constitutional court counterpart. Through a case study of Taiwan, this article adopts and expands upon the concept of power diffusion from the extant literature, arguing that the growing power of Taiwan’s private corporate sector led the dominant political party Kuomintang (KMT) to grant independence to the ordinary courts as a means to check against this threat, because the excessive rent-seeking and corruption brought about by these empowered corporations were threatening the nation’s successful economic model and its rule of law. Also, due to the corporate sector’s growing influence on the ruling party itself, the KMT leadership had to devise strategies that can credibly commit to ordinary court independence, which would otherwise be reversed thereafter. This unique implication guides a qualitative empirical analysis that reinterprets the historical events surrounding the judicial reforms that took place in the mid-1990s. The results yield strong evidence in support of the theory.     

Two-Level Security Management and the Prospects for New Democracies: A Simulation Analysis

Most new democracies face serious internal, ethnic/separatist conflicts; in addition, some face international threats. The literature on the growth of democracy in the global system and its impact on world politics does not fully account for the dual threats all states must address in managing their security. Based on theoretical work by Starr (1994) which describes the "common logic" of conflict processes in war and revolution, we outline a model of how states respond to security threats from both external and internal sources. Using computer simulation, we analyze the model and evaluate the relative importance for state security of factors such as system size, numbers of democracies in the system, extraction/allocation strategy pursued by new democracies, and government legitimacy level. Our results show that new democracies thrive in systems that are predominantly democratic. Also, ally support can provide crucial resources for new democracies facing internal threats. Finally, "endangered" democracies can recover security by attempting to buy off domestic threats rather than deter them, and by improving legitimacy.     

Informal interference in the judiciary in new democracies: a comparison of six African and Latin American cases

This article focuses on the efforts of power holders – at the executive or the legislative level – to influence or curb court activity informally or extra-legally, an acknowledged but under-researched topic in studies of judicial politics. We first define informal judicial interference and operationalize the concept; we then explain how we collected information on the topic through systematic cross-country interviewing. Our concept focuses on judicial intervention actions exercised by political actors once judges are on the bench. We distinguish these actions according to type – direct or subtle – and further differentiate each type according to six different modes. We provide new empirical data on informal interference in six third-wave democracies, three in Africa (Benin, Madagascar, and Senegal) and three in Latin America (Argentina, Chile, and Paraguay). Our empirical findings, first, confirm the importance of informal practices in shaping political-judicial relations. Second, they point to long-standing legacies and to the level of socio-economic development as possible explanations for different performances in terms of the prevalence and severity of informal interference in the judiciary in these newly established democratic regimes     

The Heroes of COIN

The conventional wisdom holds that security in Iraq only improved after Gen. David Petraeus implemented a new counterinsurgency doctrine that stressed population security instead of aggressive operations against insurgent forces. This interpretation is strikingly similar to the historiography of the Huk Rebellion, the Malayan Emergency, and the Vietnam War. In each case observers criticized initial efforts as brutal and counterproductive, only to be rescued when enlightened new leaders arrived on the scene. This article challenges the familiar hero narrative, arguing that critics routinely exaggerate the importance of leadership changes because they view conflicts as experiments in counterinsurgency rather than exercises in state-building. Whereas counterinsurgency (COIN) theory emphasizes issues like public security and government legitimacy, theorists of state-building describe a bloody and protracted competition for power under conditions approaching anarchy. The upshot is that the “heroes” of late-stage COIN might actually depend on the earlier “villains” who did the dirty work of establishing political order and coercing the population into obedience.     

Does substantive democratization create more committed democrats? Surprising evidence from Africa

A growing body of evidence holds that citizens support democracy when they believe the regime has provided individual freedoms and political rights. Put simply, citizens develop legitimacy attitudes by learning about democracy. These findings, however, are based on citizens' evaluations of the procedural elements of democracy. Democratization also entails substantive reforms that likely impact legitimacy attitudes. This article provides the first test of how the success – and failure – of substantive democratization shapes legitimacy attitudes. Using data from the second round of Afrobarometer surveys, I find surprising results. Citizens who judge the regime to be more successful in substantive democratization are actually less likely to be committed democrats. I conclude with possible explanations of these surprising findings and reflect on the challenges for both future research and for the new democracies facing this situation.     

Public confidence in the judiciary: the interaction between political awareness and level of democracy

Apart from the studies that focus on public attitudes toward higher courts in advanced democracies, we know little about the factors that can explain public confidence in the judiciary in a comparative setting. In this regard, the goal of this study is to explain whether, and to what extent, the country's level of democracy moderates the impact of political awareness on public confidence in the judiciary. This study uses hierarchical linear models to analyse the interaction between individual and country level factors by using the World Values Survey (2005–2009) data for 49 countries and various other data sources. Our empirical results show that in advanced democracies political awareness variables like education and political participation have a positive impact on public confidence in the judiciary, whereas in countries with weak levels of democracy higher political awareness leads to increased cynicism about the judiciary. These results suggest that a one-size-fits-all approach to explain confidence in the judiciary is not possible when we are dealing with a wide range of societies that vary in terms of many characteristics, both institutional and cultural.     

Exclusionary Democratization in Nepal, 1990–2002

Procedural processes like periodic elections based on universal adult franchise, political rights and civil liberties may not ensure the inclusion of minorities in governance of multiethnic democracies. The Nepali case shows that exclusion from governance may in fact increase in new democracies. However, as the open polity facilitates awareness and mobilization among the disadvantaged groups, the over all effect, despite the exclusion, is democratization. The exclusion, however, could lead to the derailment of democracy as sections of the excluded groups question the legitimacy of the process that excludes them while others support non-democratic forces. This study discusses the role of historical legacies, majoritarian political institutions, informal norms, and political elite attitudes and behaviour for the continuation or increase in political exclusion in Nepal.     

The accountability function of the courts in Tanzania and Zambia

This comparative analysis of the judiciaries in Tanzania and Zambia finds that neither one has developed a strong accountability function vis-à-vis the government. It goes on to address why judges in the two countries rarely have restrained the government in politically significant cases, identifying three sets of factors that may explain why the judges perform as they do: the legal culture; the institutional structure; and the social legitimacy of the courts. The study concludes that there are signs in the Tanzanian judiciary of a certain willingness to hold the government accountable in politically salient cases, but that their opportunity to do so is limited, due to institutional, social and political factors restricting the flow of constitutional cases. The Zambian courts have more political cases and opportunities for fulfilling an accountability function vis-à-vis the executive, but are reluctant to assert such authority. This is attributed to the legal culture and to political pressure.     

Electoral institutional change and democratization: You can lead a horse to water,but you can't make it drink

Drawing on evidence from first and second elections in emerging democracies, this article addresses issues pertinent to understanding the interplay between institutional design and change on the one hand and on the other hand the course of the democratization process, its background and concomitants. Because the electoral system (understood broadly, that is, not only as seat allocation rules) is often seen as an institution conducive to the legitimation of emerging ‐ and therefore fragile ‐democracies, it is important to examine how the development of the electoral system has influenced the democratic transition outcome, in a number of cases. Cases considered include Kenya, Mongolia, Nepal and Tanzania, while comparisons with countries outside the third world such as Bosnia‐and‐Herzegovina and South Africa throw additional light on the argument. By seeking to avoid both the fallacy of electomlism and the fallacy of anti‐electoralism, the article argues that the electoral system is a crucial factor behind the unsatisfactory course of the democratization process in many countries. More emphasis should be put on sustaining the different prerequisites of democracy, while simultaneously more effort should be put into the preparation of elections, in order to progress beyond simple and inadequate electoral democracy. The technical refinement of the electoral process, while far from sufficient to guarantee democratic development, can be a step in that direction. Credible and transparent elections are conducive to internal legitimacy and the dynamic of the political‐electoral process will gradually bring along more contestation, more participation, and the enjoyment of more rights and liberties.     

Jump-Starting Democracy: Adult Civic Education and Democratic Participation in Three Countries

In countries emerging from authoritarianism into democracy, citizens have little preparation for participating in the new political dispensations they face. Adult civic education promises a way to jump-start the lifelong socialization experience that their counterparts in the long-established democracies enjoy. But do these brief crash-courses in democracy really have any impact? Recent surveys of civic education efforts sponsored by the United States Agency for International Development in the Dominican Republic, Poland and South Africa find that those taking part in the programmes do participate significantly more in local level politics and, to a somewhat lesser extent, in politics more generally as well. There is also evidence that non-elites can benefit more from such programmes and begin to close the participation gap that separates them from traditional elites. The overall gains in participation are, however, modest. But given that political participation in absolute terms has been quite low in both old and new democracies, it can be argued that even modest gains are important and make investment in civic education worthwhile.     

Public opinion as a dependent variable: A framework for analysis

This paper outlines an approach to examining how public opinion is taken into consideration by political and governmental leaders and reviews recent studies that have followed this approach to evaluate the extent to which public opinion is subject to manipulation by political elites in diverse circumstances. The central idea of this approach is to treat public opinion as a “dependent variable” and to examine the role of the mass media in linking elite initiatives and the public. Instead of starting with polls that presume public opinion is an independent force, we start with elites and presume that they try to manipulate public opinion through the mass media and by other means. First, we look at why the emphasis on the independent nature of public opinion has become so prominent in political science. We argue here that viewing public opinion as a dependent variable is a more promising perspective. Next, we review and evaluate a number of studies that attempt to demonstrate the fruitfulness of our suggested approach. Each of the studies analyzed focuses on the initiatives of political elites and monitors the success of their efforts with targeted groups. These studies demonstrate the conditions that favor elite control as well as the opportunities for citizens to limit such control. In our conclusion, we outline a theory of the role of public opinion in modern mass democracies.     

Impeachment and presidential politics in new democracies

Research on presidentialism has long assumed that presidential impeachment is a rare event, made difficult by design in order to enhance government stability. However, the experience of Third Wave democracies suggests that more presidents have been targets of impeachment attempts than the literature might lead us to expect. In this article I seek to identify the factors that make directly elected presidents more or less vulnerable to impeachment attempts in Third Wave presidential democracies from 1974 to 2003. I find several factors that mobilize deputies against the president: presidential involvement in political scandal, strong presidential powers, and a hostile civil society. Presidents are more likely to fend off such efforts when their party commands a higher share of seats. I also find that popular protest against a president helps to prompt a congressional impeachment drive. Frequent efforts to resolve presidential crises via such legal procedures may explain in part why extra-constitutional means of conflict resolution have become a less attractive option in new democracies.     

Political-economic determinants of electoral participation in India

ABSTRACT

Elections bestow popular legitimacy to the democracies and, accordingly, electoral participation is an important indicator of the quality of democracy and civic engagement. Understanding what factors drive citizens’ decision to vote is central to the theory and practice of democracy and has implications for voter mobilization efforts of political parties and government agencies. We study the individual level determinants of electoral turnout in the 2004 Lok Sabha elections exploiting a nationally representative India Human Development Survey-2005 (IHDS-2005). We find convincing yet mixed evidence in support of political-institutional factors, and some variables of the psychological, mobilization, socialization, and resource models in explaining voter turnout. Public confidence in state government, newspapers, and judiciary, television watching, participation in civic body meetings, local conflict, caste conflict in neighborhood, local political connections, and caste association membership significantly increase the predicted probability of turnout. Factors like time family lived in the place, age, holding of below-poverty-line (BPL) cards, and receipt of public benefits increase voter turnout; whereas, business association membership, being female, metro-city resident, business being the main income source, urban residence, and the age quadratic reduce voter turnout. Separate analyses of the rural and urban, male and female contexts largely obtain the same line of results.     

Justice institutions in autocracies: a framework for analysis

What role do justice institutions play in autocracies? We bring together the literatures on authoritarian political institutions and on judicial politics to create a framework to answer this question. We start from the premise that autocrats use justice institutions to deal with the fundamental problems of control and power-sharing. Unpacking “justice institutions” we argue that prosecutors and ordinary courts can serve, respectively, as “top-down” and “bottom-up” monitoring and information-gathering mechanisms helping the dictator in the choice between repression and cooptation. We also argue that representation in the Supreme Court and special jurisdictions enables the dictator and his ruling coalition to solve intra-elite conflicts facilitating coordination. We provide several examples from Mexico under the hegemonic system of the PRI and of Spain under Francisco Franco, as well as punctual illustrations from other countries around the world. We conclude by reflecting on some of the potential consequences of this usage of justice institutions under autocracy for democratization.