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23/02/13

JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES

Vol. 13 No. 12 (December 2003) JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES, by Tom Ginsburg. New York: Cambridge University Press, 2003. 310pp. Hardback $70. ISBN: 0521817153. Paperback $26. ISBN: 0521520398. Reviewed by Ran Hirschl, Associate Professor of Political Science and Law, University of Toronto. Email: ran.hirschl@utoronto.ca Despite the global expansion of judicial review and the key role of constitutional courts worldwide in dealing with the most contentious moral and political issues, the field of comparative judicial studies-specifically the study of the political origins and consequences of judicial empowerment-remains under-represented in the literature. The dearth of research and theory concerning the politics of constitutionalization is due in part to practical difficulties (e.g. language and accessibility, appropriate acquaintance with foreign constitutional systems and legal materials, and the like). It is also a result of the preoccupation of prominent scholars who shape the contours of contemporary debate with "grand" constitutional theory and the somewhat exhausted, and often abstract, debate concerning the tension between constitutionalism and fundamental democratic governing principles. There is also a tendency towards parochialism among scholars of constitutional law and politics as far as other countries' constitutional arrangements and practices are concerned. With a few notable exceptions, primarily in the context of constitutional reform in western Europe and in the post-Soviet world, genuinely comparative studies of the origins and consequences of constitutional transformation and judicial empowerment are still rare, and often lack coherent methodology. Tom Ginsburg's thoughtful and stimulating JUDICIAL REVIEW IN NEW DEMOCRACIES is not only an important contribution to the study of comparative constitutional politics and constitutional design, but also a noteworthy contribution to the more general literature concerning the transition to and consolidation of democracy in post-authoritarian polities, in Asia and beyond. The book addresses a few fundamental questions: Where does judicial power come from? How does it develop in early stages of democratic liberalization in post-authoritarian polities? What are the political conditions that support its maintenance and expansion in new democracies? The first four chapters set out the book's theoretical framework. Ginsburg is very well versed in pertinent law and society, "transitology," and constitutional theory literature. The arguments are both lucid and thoughtprovoking. In a nutshell, Ginsburg's response to the aforementioned questions is that the establishment of constitutional review in new democracies is largely a function of politics and interests, not a reflection of macro-cultural or societal factors. Specifically, judicial review may provide "insurance" for self-interested, risk-averse politicians, negotiating the terms of new constitutional arrangements under conditions of political deadlock or systemic uncertainty. Moreover, the expansion of judicial power in new democracies is largely a function of courts' shrewdness in gradually expanding their legitimacy and ambit of influence, without antagonizing more powerful potential adversaries from the political environment within which they operate. One drawback of this otherwise captivating section is that alternative explanations for the evolution and
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JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES

expansion of judicial review are not fully fleshed out. To substantiate the theoretical arguments presented in the book's first four chapters, Ginsburg turns to a meticulous and fascinating exploration of the rarely discussed establishment of constitutional courts and the corresponding judicialization of politics in three new Asian democracies Taiwan (Chapter 5), Mongolia (Chapter 6), and Korea (Chapter 7). Ginsburg examines the politics of constitutional transformation and design in these countries all of which underwent a transition to democracy in the late 1980s and early 1990s as well as their newly established constitutional courts' struggle to maintain and enhance their stature within political environments that lack an established tradition of judicial independence and constitutional supremacy. In Taiwan, argues Ginsburg, the democratization process was governed by a single dominant party (KMT) with an overwhelmingly powerful leader (Chiang Kai-shek). The result has been a very gradual constitutional reform ("Confucian constitutionalism," as Ginsburg calls it) and the evolution of a relatively weak and politically dependent court (the Council of Grand Justices). In Mongolia, the former Communist Party was in a strong position during the constitutional negotiation stage but was nonetheless unable to dictate outcomes unilaterally because of a newly emergent set of opposition parties. This has resulted in the creation in 1992 of a "middle of the road," quasi-independent court (the Constitutional Tsets). On the other hand, in Korea, constitutional transformation took place amidst embedded uncertainty as a result of political deadlock among three parties of roughly equal strength, resulting in the 1988 creation of a strong and relatively independent constitutional court, as political insurance against electoral uncertainty. Beyond the book's excellent "ethnography" of constitutional politics in these three countries an accomplishment in itself arguably the book's most important contribution is its analysis of the origins of judicial review in new democracies. Ginsburg draws upon and further develops what we might call "electoral market" logic to explain judicial empowerment, initially put forth by Landes and Posner (1975) and later expanded by Mark Ramseyer (1994). According to this thesis, judicial independence correlates with competitiveness in a polity's party system. When a ruling party expects to win elections repeatedly, the likelihood of judicial empowerment is low. Since rational politicians want long-term bargains with their constituents, they lack the incentive to support an independent judiciary when their prospects of remaining in power are high. However, when a ruling party has a low expectation of retaining its position, it is more likely to support an independent judiciary to ensure that the next ruling party cannot achieve its policy goals through the judiciary. In other words, courts gain independence under conditions of electoral uncertainty for the political parties, it will be correspondingly difficult for succeeding governments to reverse an outgoing incumbent's policies. Short horizons or forthcoming elections can lead politicians who fear losing their office to increase judicial independence in order to limit the future options of their political opponents. Therefore, in Japan, for example (where a single party ruled almost uninterruptedly for more than four decades following World War II), judicial independence is weaker than in countries where each election brings with it an acknowledged risk that the party in power might lose control of the legislature. Ginsburg builds upon this logic to provide a compelling account of the politics of constitution-making processes during periods of regime change and political transition. Akin to purchasing insurance in uncertain contracting environments, judicial review provides "insurance" against the risk of electoral defeat, thereby facilitating transition to and consolidation of democracy. "Where constitutional designers believe that they may not control the political institutions of government, they are likely to set up a court to serve as an enforcement body protecting the constitutional bargain from encroachment. When designers believe that they will retain a dominant position in government, they seek stronger power for the political branches and will forge institutional constraint in favor of parliamentary sovereignty" (pp.200-201). At times of political transition, greater degrees of political deadlock and/or more diffused or decentralized political power, increases the probability that uncertainty will be embedded in its constitution-making process and subsequent electoral
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JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES

market. This in turn leads to a greater likelihood that a relatively powerful and independent constitutional court will emerge as insurance adopted by risk-averse participants in the constitutional negotiation game. In short, judicial review is a solution to the problem of uncertainty in constitutional design. The "insurance" thesis may provide a coherent explanation for variation in the establishment of judicial power during periods of political transition and regime change in other parts of the world (see e.g. Larkins 1998; Magalhaes 1999; Moravcsik 2000; Ishiama-Smithey and Ishiama 2000). The insurance logic may explain the near-miraculous conversion to constitutionalism and judicial review among South Africa's white political and business elites during the late 1980s and early 1990s, when it became clear that the days of apartheid were numbered and an ANC-controlled government became inevitable (Klug 2000; Hirschl 2004). As Pedro Magalhaes points out in his recently completed Ph.D. dissertation, for example, transition to democracy in Spain and Portugal in the mid 1970s was characterized by lack of a single core of post-authoritarian political power, thereby leading to the rapid adoption of strong constitutional review mechanisms. In Greece, by contrast, the post-authoritarian process was dominated by a single party (Constantine Karamanlis' New Democracy), which enjoyed over 70% of assembly seats, and did not have to worry about elections following the approval of the new constitution. The result, argues Magalahaes, was that Greece, with similar authoritarian and civil law legacies as Spain and Portugal, and involved in an almost simultaneous democratic transition, remained the only Southern European democracy without constitutional judicial review of legislation. While the "insurance" thesis sheds considerable light upon conditions conducive to judicial empowerment especially during political transition it seems unrelated to constitutionalization and the accompanying emergence of judicial review under "no apparent transition" scenarios. For one, the model is based on a somewhat simplistic perception of politics as limited to the partisan electoral market and driven by the interests of political power-holders in an uncertain contractual environment. Such a minimalist understanding of constitution-making does not capture the full picture of constitutional politics in multi-ethnic, multi-linguistic, or multicultural "new constitutionalism" polities such as Belgium or Canada. Nor does it comport with constitutional politics in countries such as Israel, India, Egypt, or Turkey (to name but a few examples) where the fundamental tension between secularist, cosmopolitan values and religious particularism has fuelled political struggle for decades. The political hegemony and cultural propensities of relatively cosmopolitan elites and the urban intelligentsia in these and other fragmented polities have been constantly challenged by alternative worldviews, belief systems, and policy preferences. These nuanced and complex political struggles cannot be easily reduced to a thin view of politics as dominated by risk-averse politicians operating under systemic political uncertainty at times of regime change. What is more, from an analytical standpoint, there is a difference between at least two common scenarios for judicial empowerment through constitutionalization: 1) constitution-making in "building the ship at sea" situations where most pertinent actors operate under a veil of systemic uncertainty (as in most negotiated transitions from authoritarian to democratic regimes) and may therefore opt for judicial empowerment as a type of insurance in an unpredictable contractual environment; and 2) a distinctly different constitutionalization process, in which hegemonic yet threatened elites voluntarily initiate and carry out constitutionalization and judicial empowerment in an attempt to entrench or "lock in" their policy preferences against growing influence of historically disenfranchised or under-represented groups-not necessarily linked to any formal political transition, regime change, or constitutional negotiations. When their ideological worldviews or policy preferences are increasingly challenged in majoritarian decision-making arenas, elites with disproportionate influence may initiate a constitutional revolution and a corresponding judicial empowerment in order to transfer power from the political sphere to national high courts. Such a strategic, counter-intuitive selflimitation through judicial empowerment may be preferred by power-holders when the restrictions imposed on political rivals outweigh the limits imposed upon themselves. Judicial empowerment through
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JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES

constitutionalization may provide an efficient institutional solution for influential groups who seek to preserve their hegemony, and who, in light of serious erosion in their popular support, may find strategic drawbacks in adhering to majoritarian policy-making processes. As I show elsewhere (Hirschl 2004), understanding judicial empowerment through constitutionalization as a form of hegemonic preservation by threatened elites may shed light on the political vectors behind the constitutional revolutions in formerly Westminster-style polities. Examples include Canada's adoption of the Charter of Rights and Freedoms in 1982 as part of a broader strategic response by the federalist, anglophone, business-oriented elites to the growing threat of Quebec separatism and the rapidly changing demographics of Canadian society; and Israel's 1992 adoption of two new Basic Laws protecting core rights and liberties, and the corresponding establishment of constitutional review in 1995 as part of a strategic response by the secular bourgeoisie who had been rapidly losing its historical political dominance. Likewise, the 1994 judicial empowerment through constitutional reform in Mexico was a calculated attempt by the then ruling party (Partido Revolucionario Institucional PRI) to lock in its historic influence within the judicial branch before the PRI's increasingly popular political opponents (and eventual winners of the 2000 presidential election) gained control. The same logic may also explain the scope and timing of the June 1991 constitutionalization of rights in British-ruled Hong Kong, which occurred less than two years after the British Parliament ratified the Joint Declaration on the Question of Hong Kong, whereby the province was restored to China in July 1997; or Britain's enthusiastic support for the entrenchment of property rights in the "independence constitutions" of newly self-governing African states (e.g. Ghana in 1957, Nigeria in 1959, and Kenya in 1960), while it was unwilling to incorporate the provisions of the European Convention on Human Rights into its own legal system (let alone to enact a constitutional bill of rights of its own). In addition, strong constitutional courts were established in predominantly Islamic polities such as Egypt, Pakistan, and Turkey as part of a broad strategy by relatively cosmopolitan power-holders in these countries to tame anti-secularist popular political forces. These instances of judicial empowerment did not stem from constitutional negotiations under a veil of systemic uncertainty at times of political transition. Rather, they were the outcome of a deliberate strategy undertaken by hegemonic, yet threatened, political elites in association with economic and judicial elites sharing compatible interests who found strategic disadvantages in adhering to democratic decision-making processes. Ginsburg is correct in asserting that, at least from an instrumental perspective, judicial review may facilitate effective transition to democracy by providing insurance to prospective electoral losers. However, it must not be overlooked that judicial empowerment in the "hegemonic preservation" constitutionalization scenario appears to be driven in no small part by forces and interests antithetical to democratic governance. To be sure, political interests provide a major impetus for constitutionalization in both the "insurance" and "hegemonic preservation" models. However, whereas Ginsburg's insurance thesis provides a compelling explanation for the emergence of judicial review under conditions of systemic uncertainty in new democracies, it misses a crucial driving force behind the second scenario. Accordingly, Ginsburg's early attempts to illustrate the insurance thesis by anecdotal evidence drawn from late 18th century American, or late 20th century Israeli and South African constitutionalization contexts, seem somewhat forced and less parsimonious than his subsequent treatment of constitutional politics in his three premier cases (and by extension, in other similarly situated polities). Ginsburg only scantly refers to domestic and international political economy factors an important motive for constitutionalization and judicial empowerment in new democracies. Economic elites may advocate constitutionalization as a means of placing economic liberties beyond the reach of majoritarian control. Preserving the economic sphere through constitutional protection of mobility, property, occupational and trade rights, as well as the establishment of independent judiciaries that function as checks on (often
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JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES

"unpredictable") domestic politics and (often "arbitrary") state action, have long been viewed by trans-national economic bodies such as the World Bank, the World Trade Organization, and the International Monetary Fund as primary indicators of successful markets and sustained economic growth. The incorporation into domestic law of these and other legal norms endorsed by international trade and monetary regimes is often a prerequisite imposed upon countries striving to become members. New democracies that rely heavily on foreign aid and investment are likely to bow to pressure from leading western democracies, economic corporations, or trans-national governing bodies to promote the rule of law by emulating the constitutional fundamentals of western democracies. Adopting a constitutional catalogue of rights and establishing judicial review may also demonstrate a polity's willingness to accept the required legal standards for joining supranational economic regimes. As scholars have noted, the restriction of legislative power through constitutional rights and judicial review may also enhance a given regime's international economic credibility and prevent large-scale "capital flight." This latter consideration may explain the convergence to constitutionalism and judicial review by the ANC in the early 1990s, despite its prospective control of government in the new South Africa, and in stark contrast to the socialist action program of the Freedom Charter advocated by the ANC throughout the apartheid era. In contrast to the book's first seven chapters, the final chapter takes a more normative tone. Unlike the conventional concerns regarding the counter-majoritarian nature of judicial review, Ginsburg concludes (pp.261-262) that judicial review and democracy can and do develop together, and that judicial review is largely a product of democratization and an expression of political diffusion. Moreover, judicial review, argues Ginsburg, may effectively prevent excessive centralization of power (an empirical question his book does not address). In conclusion, some of the book's arguments are not fully polished and its dialogue with alternative or complementary explanations of constitutional transformation is somewhat thin. Despite these minor drawbacks, Ginsburg's comparative account of the political construction of judicial power, his analysis of new constitutional courts' struggle to maintain and expand their influence, and particularly his establishment of a causal link between electoral uncertainty and judicial review in the context of democratic liberalization, are astute, compelling, and indeed intellectually refreshing. Every serious scholar and student of constitutional politics and institutional design should read this book. REFERENCES: Hirschl, Ran. 2004. TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM. Cambridge, MA: Harvard University Press. Ishiama-Smithey, Shannon, and John Ishiama. 2000. "Judicious Choices: Designing Courts in PostCommunist Politics." 33 COMMUNIST AND POST-COMMUNIST STUDIES 163-182. Klug, Heinz. 2000. CONSTITUTING DEMOCRACY: LAW, GLOBALISM AND SOUTH AFRICA'S POLITICAL RECONSTRUCTION. Cambridge: Cambridge University Press. Landes, William, and Richard Posner. 1975. "The Independent Judiciary in an Interest Group Perspective." 18 JOURNAL OF LAW & ECONOMICS 875-901. Larkins, Christopher. 1998. "The Judiciary and Delegative Democracy in Argentina." 30 COMPARATIVE POLITICS 423-442. Magalhaes, Pedro. 1999. "The Politics of Judicial Reform in Eastern Europe." 31 COMPARATIVE POLITICS 43-62.
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Moravcsik, Andrew. 2000. "The Origins of Human Rights Regimes." 54 INTERNATIONAL ORGANIZATION 217-252. Ramseyer, J. Mark. 1994. "The Puzzling (In)Dependence of Courts: A Comparative Approach." 23 JOURNAL OF LEGAL STUDIES 721-748. ************************************************* Copyright 2003 by the author, Ran Hirschl.

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