Band 18, Heft 1 - Special Issue: The Most Endangered Branch, Part II; Issue Editors: Christoph Bezemek and Yaniv Roznai

Courts around the world are under attack. They are being captured, packed, threatened, and their authority and powers are being limited by governments that seek to undermine the democratic constitutional order. Once courts are weakened or captured, it is easier for these governments to undermine other democratic institutions and even set courts themselves against democracy. Accordingly, using the rationale of ‘militant democracy’, this article proposes the theory of democratic self-defence of constitutional courts. According to this theory, constitutional courts (including apex courts with constitutional review powers) should declare the unconstitutionality of reforms to their institutional design when these are instrumental to a process of democratic decay. Not only that they should do so, but they must do so – as a duty – when the viability of the democratic system of government is at stake. The aim of this self-defence is not the self-interest preservation of institutional powers but the protection of democracy itself. In order to be able to protect democracy, courts must be able to protect themselves.

Courts having the ability to invalidate procedurally correct constitutional amendments for violating core democratic or constitutional values is a growing practice in global constitutionalism. However, this power is generally exercised by courts on a whim and very often without any textual basis. Such actions raise serious legitimacy concerns and can undermine efforts towards regular constitutional change. In extreme cases, this power has been wielded by courts in ways that contribute to democratic backsliding rather than its prevention. Few solutions to police this power of courts and prevent net negatives exist. These solutions either fall short of addressing the challenges of courts invalidating procedurally correct constitutional amendments or rely heavily on judges’ restraint and good faith, qualities which we struggle to see in many jurisdictions where courts exercise this power. In turn, this article outlines a template for courts to use when evaluating the validity of procedurally correct constitutional amendments. This article’s suggested template hopes to prevent courts from misusing their powers while still leaving sufficient room for them to act to prevent threats to a polity’s democratic and/or constitutional project. It aims to do so by reducing the subjective discretion available to judges relative to other available templates.

This paper proposes a synthesis that renders democratic principles compatible with the preservation of judicial control of constitutionality. This has been mediated by what I have called ‘weak procedural constitutionalism’, a methodology through which constitutional conflicts are debated in the legislature and among the citizenry as the real holders of the final say in society, with judicial activity focused on an intermediate say and the promotion of subsequent social deliberation. The judicial process thus becomes a public dialogical procedure susceptible to intervention by citizens and capable of generating public information processes facilitating accountability. The constant quest for instrumentalities that increase the democratic legitimacy of constitutional courts is an existential necessity. Only through real opportunities for dialogue and citizen participation in the decision-making process can judicial review be made democratically palatable. This requires that both judges and legislators play an intermediate rather than primary role, one in which democratically elected legislatures enjoy a high degree of legitimacy in adopting decisions, in juxtaposition with the derivative legitimacy appurtenant to constitutional courts. The premise for the exercise of what I denominate as weak constitutionality control, or the hypothesis for a weak procedural constitutionalism, is a possible synthesis of the tension between constitutionalism and democracy, with emphasis on the Colombian case.

Considering the external effects of adjudicative activity of the Inter-American Court of Human Rights, structural questions emerge regarding the influence of IACtHR precedent in judicial branches of the Parties to the American Convention on Human Rights. In this sense, this paper seeks to apply the theoretical typologies developed by Ryan Goodman and Derek Jinks to the analysis of operative mechanisms of influence of international law inside the States’ jurisdictions. In this regard, it was necessary to create new specific categories (eg, acculturative persuasive precedent, selective persuasive precedent), to test whether they suitably describe the application of Inter-American precedents, in an attempt to categorize the recent performance of the highest courts in Brazil, Colombia, Argentina, Chile, and Bolivia. Additionally, the concept of double control of conventionality has presented essential perspectives for the compliance with IACtHR judgments by demanding States, as well as the interpretation and application of national laws deemed compatible, or not, with the Pact of San José. In the end, quantitative analysis played an important role in measuring each national court’s assimilation of international precedents as it outlined scenarios of explicit adoption of Inter-American Court precedent by national judicial branches. Sampled States were classified as follows: a) Brazil: selective persuasive IACtHR precedent with low performance; b) Colombia: acculturative persuasive IACtHR precedent with high performance; c) Argentina: selective persuasive IACtHR precedent with moderate performance; d) Chile: selective persuasive IACtHR precedent with high performance; and e) Bolivia: acculturative persuasive IACtHR precedent with moderate performance.

In Europe, judicial review is not only exercised by courts within the states. Additionally, there are two European Courts, the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECtHR). This chapter shows first their respective function with respect to judicial review. In a second step, it put its emphasis on the relationship between them and undertakes to ask whether – with respect to judicial review - one of them can be understood as the ‘Supreme Court of Europe’. It concludes that it is the European Court of Human Rights which can be described as such a ‘Supreme Court’.

Under Turkey’s democratic breakdown, the Turkish Constitutional Court offers a case study to identify the dynamics of judicial politics in electoral autocracies. Although the Court has been subject to criticism regarding its low commitment to the political pluralism and rights-based approach previously, the current situation presents itself differently. It is marked by a massive erosion in democratic qualities including an abuse of the judiciary against dissents in an unprecedented manner. Yet, the Court is still formally independent and empowered through constitutional norms such as the fixed tenure, retirement age, and jurisdiction in crucial matters. Since the institutional guarantees of the Constitutional Court are untouched, it has still the potential to become a major political player. Therefore, its study may also contribute to the comparative scholarship on the role of constitutional review under new pressures of the third wave autocratization that contraction and expansion dynamics of judiciaries can be better understood. The present study aims to feature the judicial politics of the Court under Turkey’s current democratic regression by conceptualizing a resistance-deference paradox on the ground politically significant cases.

The forms of intervention of international courts in domestic affairs could be divided into three broad paradigms: (1) the Westphalian Paradigm, (2) the Hierarchical Paradigm, (3) the Network Paradigm. According to the Westphalian Paradigm, the role of international courts is to coordinate the interactions of sovereign states. According to the Hierarchical Paradigm, international courts initiate social change by issuing judgments that require states to amend their practices. Naturally, under this paradigm, courts are concerned about their ability to secure compliance with their judgments but also about the legitimacy of their decisions and their ability to make good policy stipulations. According to the Network Paradigm, international courts are embedded within a vast web of actors with different interests. This chapter will survey the three different paradigms of international judicial review and demonstrate the unique considerations international courts need to take into account under every paradigm.