Democracy, Electoral Systems, and Judicial Empowerment in Developing Countries

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

180 chapter 6 De Facto Judicial Independence in Particularistic Systems Brazil and India 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. In the latter half of chapter 2, we developed a theory to explain this variation. The central prediction from this theory is that in the context of high hazard rates in office, incumbents in highly personalist (that is, particularistic) systems will increase the de facto autonomy of the courts. The corollary to this prediction posits that when faced with high hazard rates in office, governments in partycentered developing democracies—which, by construction, are characterized by low levels of particularism—will curtail de facto judicial independence. These claims were subjected to rigorous large-n empirical tests in chapter 5. In this chapter and the next, we move away from the large-n econometric tests on de facto judicial independence undertaken in chapter 5 to directly examine supporting evidence for the causal arguments that led to hypothesis 2 and its corollary. We do so in this chapter by analyzing in detail the politics of de facto judicial independence in two developing countries’ democracies characterized by high levels of particularism—Brazil and India. According to hypothesis 2, we should expect to find that political elites in Brazil and India enhance de facto judicial independence when they are faced with high DFJI in Particularistic Systems 181 hazard rates or equivalently low time horizons in office. Chapter 7 offers a parallel account of the politics of de facto judicial autonomy in a developing countries’ democracy that exhibits a low level of particularism and a high hazard rate—Indonesia. The Indonesia case is employed here to illustrate the causal arguments that produce the corollary to hypothesis 2, which posits that governments in party-centered democracies will reduce the judiciary’s de facto autonomy when their hazard rates in office are high. As discussed later, these three cases allow us to effectively implement the most similar case-selection design for our comparative analysis and illustrate the explanatory power of our theoretical framework in explaining the politics of de facto judicial autonomy in developing democracies. This chapter is organized as follows. We begin with a brief discussion of the methodological criteria that determines the choice of Brazil, India, and Indonesia for our case-study analysis of de facto judicial independence across developing democracies. In the rest of the chapter, we present our analysis of the Brazil and India cases. For each country, we first analyze how electoral rules produce a candidate-centered system in their respective polities , and discuss the observed hazard rates of governments in office. We then analyze the manner in which the context of a candidate-centered system affects how the hazard rates of governments in each country influence the behavior of the ruling and opposition parties when interacting with the judiciary . We use multiple types of evidence from political and policy events, descriptive analysis of within-country data on constitutional amendments and statutory bills, as well as interviews with judicial and political actors in these countries to conduct our analysis. Our study indicates that the candidate-centered nature of Brazil and India’s electoral system drives governments in these two countries to maintain and promote the judiciary’s de facto autonomy in the context of high hazard rates of incumbents in office in these states. We conclude by discussing the implications of these findings. Case Selection: Comparing Brazil, India, and Indonesia For the methodological reasons we discuss here, the comparative analysis of Brazil, India, and Indonesia allows us to illustrate the causal mechanisms underlying the theoretical predictions regarding de facto judicial independence in chapter 2. The decision to employ the Brazil, India, and Indonesian cases for our case-study analysis of de facto judicial autonomy is deter- 182 democracy, electoral systems, and judicial empowerment mined by three main case-selection criteria suggested in Mill’s (1834) “most-similar” design. Recall from chapter 4, to fit this research design the...