Alternative forms of judicial review

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures or courts specify whether their enactments or decisions will receive strong- or weak-form treatment. I examine examples of legislative allocations of issues to strong- and weak-form review and identify some practical and conceptual problems with such allocations. Then I examine judicial allocations — of the courts’ own decisions — to Strong- or weak-form categories. Here I consider Thayerian judicial review and what Professor Dan Coenen has called semisubstantive doctrines as examples of judicial choices to give their decisions weak-form effects. My conclusion is that these allocation strategies reproduce within strong- and weakform systems the issues that arise on the level of constitutional design. Weak-form systems and allocation may seem to alleviate some difficultiesassociated with strong-form systems in constitutional democracies. My analysis suggests that those difficulties may persist even when alternatives to strong-form judicial review are adopted.

The Malaysian Election Commission: Navigating Electoral Authoritarianism and Political Change

The urgency of electoral reforms has long been identified as a key to improving democracy in Malaysia. For decades, electoral manipulation through gerrymandering, malapportionment, and issues with the electoral roll and conduct of elections have undermined democratic quality and competition. The Malaysian Election Commission (EC) has – understandably – come under scrutiny for its role in facilitating and sustaining these problems. However, what requires a greater level of attention is the question of how the EC – despite its position as a constitutional institution that exists independently from the other branches of government – has operated in ways that undermined Malaysia's democracy and maintained a dominant party regime for over six decades. This Article brings this to light by examining the structural, institutional, and political conditions that shape the EC's operation, particularly with regard to re-delineation of constituencies and the conduct of elections. It argues that flaws in constitutional design, along with subsequent constitutional amendments, have rendered the EC vulnerable to partisan capture and thus affected its ability to function as an independent constitutional institution. In addition, this Article demonstrates how changes in political imperatives and judicial restraint in reviewing the EC's decision-making have also contributed to the deficiencies in Malaysia's electoral democracy.

Mechanisms for Indigenous Representation, Participation and Consultation in Constitutional Systems: International Examples to Inspire Chile

Indigenous peoples in Chile have suffered dispossession and discrimination by colonizing forces, like many Indigenous peoples globally, and did not have a fair say in the development of successive constitutions establishing new political systems on their land. In the October 2020 referendum, Chileans voted to create a new constitution. This presents an opportunity for Indigenous peoples to create a fairer power relationship with the Chilean state. For the first time, the constitutional convention includes a specific quota for 17 Indigenous representatives. This will enable Indigenous peoples to contribute to the constitutional design process. This report presents comparative examples of self-determinative institutional mechanisms that empower Indigenous peoples to be heard by and influence decision making in state institutions. The focus of the paper is on options for institutional structures that enable Indigenous representation, participation and consultation with respect to Indigenous peoples’ own affairs.

Constitutional Design of Electoral Governance in Federal States

This article explores the constitutional politics of electoral governance in federations by focusing on the role of election commissions, drawing mainly on examples from Asia. All democracies face the challenge of insulating electoral governance from interference and capture. Compared to unitary states, federations confront the additional dilemma of how to disperse authority over electoral governance across multiple orders of government. Federal democracies must decide whether electoral governance should be a matter for the center or the states. I argue that the basic choice is between what I will call the ‘unitary model’ and the ‘division of powers model.’ The main institution of electoral governance is the electoral management body or ‘EMB.’ In the unitary model, a central EMB administers both national and state-level elections. In the ‘division of powers model’, both a central and state-level EMBs exist, with the state commissions administering elections in the component units of the federation. In federal democracies generally, but especially in Asia, the allure of the unitary model has been strong. The article draws on the example of the Constituent Assembly in India to illustrate what is at stake in how federal constitutions allocate authority over electoral governance.

Taming the Incumbency Advantage: Innovative Constitutional Designs from the "South"

This Discussion Paper was drafted for an International IDEA webinar on Taming the Incumbency Advantage (25 May 2021), the first of a series on innovative constitutional design options. It has been revised and updated to reflect contributions from webinar participants: Professor Juvence F. Ramasy (Madagascar), Professor Ridwanul Hoque (Bangladesh) and Professor Gabriel Negretto (Latin America), among others. The webinar series seeks to identify, discuss, profile and showcase the ‘hidden treasures’ of innovative constitutional/institutional design options—including from the Global ‘South’—with potential to help tackle emerging and recurrent challenges facing societies around the world. The goal is not to promote any specific institutional design, but rather to enrich conversations about constitutional reform processes and share comparative constitutional law and practice insights among academic and practitioners’ communities.

An Enduring Path for National Unity and Human Rights Protection in Ethiopia: A Case for Human Dignity Centered Constitutional Design and Interpretation

Ensuring National Unity and upholding Human Rights have always been a big challenge in Ethiopia, since the establishment of the modern Ethiopian state. These problems are still troubling the country, long after the adoption of the present Federal Democratic Republic of Ethiopia (FDRE) Constitution, which is claimed to have addressed them once and for all. This article seeks to revisit the historical underpinnings of the FDRE Constitution and its ethnic-centered design, in relation to its actual capacity to achieve national unity and adequate protection of human rights. The article demonstrates how human dignity centered constitutional design and interpretation could advance both national unity and adequate protection of rights. It argues that the historical foundation of the FDRE Constitution and the design that came out of it is backward looking, exclusionary and inadequate to address both challenges for a number of reasons. As a possible alternative, it proposes a human dignity centered re-reading of history, constitutional design and interpretation. Since Ethiopia is in a process of reform in various spheres, the issues raised and discussed in the article deserve serious attention as they are essential to move forward.

Economic elites and the constitutional design of sharing political power

What explains the emergence and persistence of institutions aimed at preventing any ruling group from using the state apparatus to advance particularistic interests? To answer this recurring question, a burgeoning literature examines the establishment of power-sharing institutions in societies divided by ethnic or religious cleavages. Going beyond existing scholarly work focused on these specific settings, we argue that political power-sharing institutions can also be the result of common disputes within the economic elite. We propose that these institutions are likely to emerge and persist when competition between elite factions with dissimilar economic interests is balanced. To address the possibility of endogeneity between elite configurations and public institutions, we leverage natural resource diversity as an instrument for elite configurations. We show that, where geological resources are more diverse, competition between similarly powerful economic groups is more likely to emerge, leading ultimately to the establishment of power-sharing mechanisms that allow elite groups to protect their diverging economic interests.

Aspirational Principles in African Federalism: South Africa, Ethiopia and Nigeria Compared

Finding a balance between diversity and social cohesion is a common concern in constitutional design: in divided societies, such a balance has often been sought through federalism. But the need to reconcile diversity and social cohesion can also be addressed through aspirational values embedded in a constitution. In fact, constitutions may entrench fundamental principles directing policies to foster equality, eliminate obstacles or require the different tiers of government to collaborate harmoniously in the performance of their functions. In exploring solidarity between different communities and cooperative government in South Africa, ethnicity as foundational value in Ethiopia, and the federal character in Nigeria, this article offers a comparative account of the three most important federations in Africa to assess how their constitutions reconcile diversity and social cohesion through aspirational principles related to federalism.

Constitutions and Gender Equality in Chile and Argentina

Gender equality provisions have become nearly standard in constitutional design for new democracies. How do such provisions affect the ability of women’s rights advocates to achieve social change? To address this question, we compare the political use (legislation, policy, and judicial interpretation) of these provisions in Chile and Argentina, countries that differ with respect to how they have constitutionalised gender rights. The comparative analysis demonstrates how gender-specific constitutional provisions provide a legal basis and legitimacy for women’s rights advocates to advance new policy, protect policy gains, and pursue rights-based cases through the courts.