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Democracy, Electoral Systems, and Judicial Empowerment in Developing Countries

Vineeta Yadav

Publication Year: 2014

The power granted to the courts, both in a nation’s constitution and in practice, reveals much about the willingness of the legislative and executive branches to accept restraints on their own powers. For this reason, an independent judiciary is considered an indication of a nation’s level of democracy. Vineeta Yadav and Bumba Mukherjee use a data set covering 159 developing countries, along with comparative case studies of Brazil and Indonesia, to identify the political conditions under which de jure independence is established. They find that the willingness of political elites to grant the courts authority to review the actions of the other branches of government depends on the capacity of the legislature and expectations regarding the judiciary’s assertiveness. Moving next to de facto independence, Yadav and Mukherjee bring together data from 103 democracies in the developing world, complemented by case studies of Brazil, India, and Indonesia. Honing in on the effects of electoral institutions, the authors find that, when faced with short time horizons, governments that operate in personal vote electoral systems are likely to increase de facto judicial independence whereas governments in party-centered systems are likely to reduce it.

Published by: University of Michigan Press

Title Page, Copyright, Dedication

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Contents

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pp. vii-viii

Acknowledgments

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pp. ix-x

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1. Explaining Variation in De Jure and De Facto Judicial Independence

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pp. 1-31

The global movement toward democracy in the developing world during the past 30 years gave birth to many new democracies which raised the political freedom of millions of citizens in these states. Political elites in these new democratic regimes were confronted with a new set of political challenges—how to protect their citizens’ rights, “insure” their own political future, and preserve their political hegemony in the new electoral marketplace they found themselves in.1...

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2. The Theoretical Framework

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pp. 32-74

In chapter 1, we presented two empirical trends. These trends demonstrated significant variation in both de jure judicial review (DJJR) across new democracies in the developing world and de facto judicial independence (DFJI) among developing country democracies. The observed variation in DJJR across new democracies leads to the following puzzle: why (and when) are governments in some new democracies in the developing world less likely to constitutionally adopt full judicial review in the initial post–transition years? ...

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3. New Democracies and De Jure Judicial Review: The Empirical Evidence

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pp. 75-107

The first half of the theoretical story in chapter 2 explored how political contestation between parties during the immediate years following a democratic transition—that is, in new democratic regimes—affects the design of constitutional provisions for de jure judicial review in developing countries. This story produced the following prediction, which is labeled as hypothesis 1: governments in new democracies in the developing world that control a high concentration of legislative seats in the initial post–transition years will be less likely to adopt judicial review if public trust in the judiciary during the immediate post–democratic transition period is sufficiently high...

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4. Democratic Transition and Judicial Review in Indonesia and Brazil

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pp. 108-147

The theoretical analysis in chapter 2 explores how certain political dynamics in new democratic regimes affects the constitutional design of de jure judicial review during the immediate post–democratic transition period. As stated in hypothesis 1, our theory predicts that in new democracies, governments that control a sufficiently high concentration of legislative seats, are less likely to adopt full and explicit judicial review if during the immediate post–transition period public trust in the judiciary increases...

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5. Empirical Tests for Electoral Particularism and De Facto Judicial Independence

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pp. 148-179

In the introduction, we emphasized the distinction between de jure and de facto judicial independence. Incumbents in new democracies in the developing world may favor the creation of an independent judiciary and thus adopt constitutional provisions that allow for a high degree of de jure judicial independence. But this does not mean that these incumbents or their successors will respect the political autonomy of the judiciary across time. Indeed, the “time inconsistent” preferences of policymakers in developing states may induce them to interfere with the decisions of judges and actively curtail the de facto independence of the courts...

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6. De Facto Judicial Independence in Particularistic Systems: Brazil and India

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pp. 180-226

We emphasized earlier in this book that the challenge of judicial independence in developing countries’ democracies does not merely end with attempts to constitutionally empower the judiciary. Rather, maintaining the de facto autonomy of the courts poses an important strategic challenge for leaders in these countries. In chapter 1, we analyzed some data that revealed that incumbents in some democratic developing countries, but not others, curtail the de facto independence of the judiciary when their ex ante likelihood of political survival, and thus their time horizons in office, is low...

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7. De Facto Judicial Independence in Party-Centered Systems: Post–Suharto Indonesia

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pp. 227-259

In sharp contrast to the high levels of de facto autonomy enjoyed by the judiciary in Brazil and India, the Indonesian judiciary has often been described as an institution that lacks de facto autonomy (see, for example, Lev 2004; Butt 2007). What accounts for such striking differences in judicial autonomy across these three countries that face similar development challenges? The analysis in the previous chapter illustrated the argument we presented in hypothesis 2 that the candidate-centered nature of Brazil and India’s electoral systems was crucial in inducing incumbents in these two countries to increase the de facto independence of the judiciary in the context of short time horizons due to high hazard rates in office...

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8. Conclusion

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pp. 260-276

Almost two decades ago, the collapse of the Soviet Union dramatically expanded the global breadth of the “third wave” of democratization across the developing world.1 The third wave spread of democratization started in Latin America and then spread to central and Eastern Europe, parts of Asia, and eventually to Africa. The emergence of democracy enhanced the individual freedom for millions of citizens in developing states...

Appendix

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pp. 277-282

Notes

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pp. 283-314

References

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pp. 315-352

Index

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pp. 353-362


E-ISBN-13: 9780472029624
E-ISBN-10: 0472029622

Page Count: 368
Publication Year: 2014

Series Title: New Comparative Politics

Research Areas

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Subject Headings

  • Judicial independence -- Developing countries.
  • Judicial review -- Developing countries.
  • New democracies.
  • Brazil -- Politics and government.
  • Indonesia -- Politics and government.
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