The papers in this panel address a number of questions relating to the role of courts as democracy builders. What are the costs and benefits of a court-centred strategy for protecting democracy? Are the circumstances in which a court-centred strategy is likely to be successful rare? What are the challenges for the courts if they...
Courts and the Populist Moment
In the post-1989 wave of new democracies, courts served as important stopgaps as the complex institutional arrangements of modern democratic governance sought to take hold. Over the past few years, insurgent populist groups have used the structures of democratic election to unwind the liberal underpinnings of post-1989 democracies. While courts remain a critical arena for...
Courts as Democracy Builders in Asia
What is the relationship between the strength of a country’s democracy and the ability of its courts to address deficiencies in the electoral process? Drawing a distinction between democracies that can be characterised as ‘dominant-party’ (for example Singapore, Malaysia, and Hong Kong), ‘dynamic’ (for example India, South Korea, and Taiwan), and ‘fragile’ (for example Thailand,...
Judicial contributions to democratization: cases from post-war Africa
This paper considers post-Cold War African cases relevant to the issue of democratization. Institutional weakness continues to cripple some African courts, but others repay richer study. The Constitutional Court of Benin, stand-out of West Africa, has played a regular role in electoral disputes. The Kenyan Supreme Court has adopted a bolder, if sometimes precarious, stance...
Reconstitutionalizing Politics in the Hong Kong Special Administrative Region of China
The Basic Law of Hong Kong proposes the eventual election of the legislature and chief executive by some form of universal suffrage. Achieving this requires consensus between the political branches in Hong Kong and the legislative body of the People‘s Republic of China. Although not a formal requirement, any democratisation efforts will also need buy-in...
What role for constitutional courts in protecting democracy?
Recent scholarship has exhibited great faith in the ability of constitutional courts to protect democracy in fragile regimes, while of late a more skeptical position has emerged to challenge this near-orthodoxy. In this paper, I take a more equivocal and contextual approach to the issue, by considering some of the costs and benefits of a...
Abusive Judicial Review
Much recent work has focused on the ways in which liberal democratic constitutionalism can be eroded from within, including by manipulating law and the tools of constitutional change. Courts are often seen as an indispensable protection for a democratic constitutional order, and there are indeed examples of courts guarding against abusive forms of constitutional and...