Lecture 15 - week 9 - Dr. Pavlos vasilopoulos PDF

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Dr. Pavlos vasilopoulos...

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Tuesday, 24 November 2020

Judicial Independence and Activism in Democracies GLOBAL SPREAD OF CONSTITUTIONAL REVIEW: ! Why?! 1. Institutional–functional explanation: Protection of federalism, fundamental rights and free trade 2. Political explanations: a. Political fragmentation b. Political insurance (Ginsburg, 2003) c. Hegemonic preservation (Hirschl, 2004)

IS CONSTITUTIONAL REVIEW DEMOCRATIC?

- ‘In a democracy should a non-majoritarian body of experts second-guess the original will of the majoritarian institutions when drafting the laws in a way that reflects society's interests?’ (Ferejohn et al. 2009) NO:!

YES:!

! Rights provisions and rules are vague and illdefined➔Discretion of review! Judges are not democratically elected!

!

1. Review subverts majority rule

1. Democracy is not just the will of the majority

2.

2. Rights provisions and rules are vague and illdefined➔Need of review

3.

4. Depoliticisation of legislative debate

!

3. Judges won’t have spurious and short-term interests

!

4. Legitimacy of regime depends on certain areas

JUDICIAL INDEPENDENCE: • Independence from:! • the other branches of government or politicians

!

• political ideology or public pressure more broadly defined (including ethnic or sectarian loyalties)

!

• superiors in the judicial hierarchy!

SYSTEMS OF APPOINTMENT: ! 1.

Appointment by political institutions!

Tuesday, 24 November 2020 2.

Appointment by the judiciary itself!

3.

Appointment by a judicial council (which may include non-judge members)!

4.

Selection through an electoral system!

(Ginsburg, 2009)!

BY POLITICAL INSTITUTIONS:! •

Representative system: several political institutions select a certain percentage of the court!

•

Cooperative system: two or more institutions must cooperate to appoint members of the court!

•

In some systems, a single political institution dominates!

•

Finally, in some cases judges are appointed by a government minister (typically the Minister of Justice or Attorney General). !

!

Accountability, rather than independence?!

SELF APPOINTMENT: ! • On the decline ! • High judicial independence from other institutions but less internal independence! • Lack of accountability to elected institutions!

BY JUDICIAL COUNCILS: ! • Members of judicial councils can include judges from various levels of courts, members of other government bodies, members of the bar association, and laymen

!

• Roughly 15% of judicial councils around the world are composed entirely of judges; about 10% have no judges

!

• The remainder have some mix of judges and non judges, with the average fraction of judges being just under half.

!

!

A happy medium?!

JUDICIAL ELECTIONS:! •

Used in some US states!

•

Difference between partisan and non-partisan elections!

•

Election for initial appointment or retention!

Tuesday, 24 November 2020 !

In theory: more diverse judiciary; in practice: politicisation!

JUDICIAL ACTIVISM: ! • Judges and courts in liberal democracies increasingly willing to enter political ‘arena’ !

JUDICIALISATION OF POLITICS:

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• Increasing emphasis on human rights provides more prominent role

!

• Conflicts between international, supranational and national law

!

• Growth of regulation as a tool of government

• Reliance on courts in fields of “mega-politics” (Hirschl, 2008)

!...