Electoral Systems and Judicial Review in Developing Countries

Abstract

Electoral Systems and Judicial Review in Developing Countries * (Yadav, Vineeta and Mukherjee, Bumba. Democracy, Electoral Systems, and Judicial Empowerment in Developing Countries. Michigan Press, 2014)The interest regarding the effects a strong Judiciary may have on political systems has a long history. Tocqueville in his seminal work Democracy in America had already warned us of such phenomenon centuries ago1. Very recently, political science as a discipline has dealt with the global phenomenon of the expansion of Judiciary Power. This process presents itself through various levels of social relations up until the political level. In the specific field of politics, we may see the growing inclusion of the Judiciary as an important, and often decisive, actor in decision-making processes2.The purpose of this book is to study the determinants in the constitutional empowerment (or lack thereof) of the judiciary in young democracies in developing countries, examining the conditions through which the judiciary was granted the important legal mechanism of judicial review. The book also attempts to analyze policies maintaining a de facto independence from the courts in newly established democracies in developing countries. The authors seek answers by analyzing the interaction between government, opposition, and the judiciary across different contexts of domestic institutions and political conditions. Subsequently, the authors empirically test their answers with statistical tests and, in the end, select sets and compare them in order to illustrate the underlying causal dynamics of adopting institutional judicial review (de jure) and judicial independence in practice (de facto) within the democracies of developing countries3.In the first chapter, the authors state the research questions. The book's initial question is: why did governments in some young democracies explicitly adopt judicial review in the early years of democratic transition while other countries did not? According to the authors, researchers have identified important factors for this distinction, such as political fragmentation, electoral uncertainty, and Human Rights protection as crucial determinants for adopting judicial review. However, they did not explain all the judicial review variations (de jure) observed in young developing democracies. However, these studies cannot focus solely on the institutional design (de jure) of judicial review. One must analyze the independence of the judiciary in practice (de facto). Some researchers associate de facto independence to the separation of powers and the higher levels of political competition, as they create a more uncertain environment for electoral results, leading political elites to develop strategies to deal with the challenges of domestic politics established by this environment. Other studies indicate that, for example, elites create strategies to safeguard themselves against future retaliations from the opposition. In the short term, elites react to uncertainty by creating a genuinely independent judiciary. In contrast, the long-term associated with low competitive politics establishes incentives for the elite to increase their own power by restricting judicial independence.These arguments do not stand against the authors' elaborate study. By using a risk rate (likelihood of government collapse) as a proxy for strategies over time (short and long term), the results showed that a high risk-rate (equivalent to short-term) of governments in power are associated with an increase of de facto judicial independence of 56% within the sample of developing countries. However, the remaining 44% contradict theoretical expectations and show that an increase in the risk rate is associated with a decrease in judicial independence. This conundrum leads to the book's second question: why do countries invest at different levels in judicial independence?The second chapter provides the theoretical framework seeking answer two questions: 1) During the early years of transitional governments, why did some democracies (but not others) deny or constitutionally restrict full judicial review? …