The Relationship Between Independence and Judicial Review in Post-Communist Courts

Abstract

Following the collapse of communist rule in Central and Eastern Europe and the former Soviet Union, constitutional designers codified rules establishing independent judiciaries. To what degree do these constitutional and statutory guarantees of independence reflect the actual behavior of courts? Our analysis demonstrates that official judicial power does not predict expressions of judicial reviewoverturning legislation in whole or in part. Rather, exogenous factors, including economic conditions, executive power, identity of the litigants and legal issues, influence the likelihood that courts will nullify laws. Our findings should caution both scholars and institutional designers. Both formal and informal factors create the parameters in which courts operate. Although courts have become more powerful institutions in the post-communist era, they face a diverse set of constraints on independent action.Although independent judiciaries are important actors in democratic consolidation, how expressions of judicial independence evolve in transitional societies remains unclear. Ideally, courts review legislation and government decisions under the rubric of constitutionality. That is, the judiciary is able to declare laws and actions unconstitutional and serve as a check against excesses by other branches of government. A strong judiciary in newly independent countries helps the state break with its authoritarian past and develop a constitutional culture that teaches state actors that the legal system cannot be transgressed for political gain (Brewer-Carias 1989;Larkins 1996). However, the development of an independent judiciary can be constrained by a weak institutional legacy, limited training and support for judges, and the strength of other political actors. If the judiciary does not have the authority to make independent decisions, democratic progress

Judicial Institutionalization and Judicial Activism of the Post-Communist Constitutional Courts

“…Some scholars have noted potential downsides to such a measure and it is important to acknowledge the validity of these criticisms. (Note 3) Nevertheless, the rates of judicial activism are commonly used to assess judicial independence and judicial decision-making behavior under political constraints around the world in general, and in post-communist countries in particular (e.g., Schwartz 2000; Smithey and Ishiayma 2002;Herron and Randazzo 2003;Anderson and Gray 2007), and no alternative cross-national measures of behavioral independence or judicial power have been proposed to date. Still, it is important to treat rates of invalidation reported for CCs with great care.…”

“…First, only the instances of posteriori review are included. (Note 5) As Herron andRandazzo (2003, 429) andStone Sweet (2000, 51) argue, once a policy is promulgated, it becomes more costly and potentially dangerous for courts to nullify it. Second, only decisions on the merits of the case are included.…”

“…As Herron and Randazzo (2003) point it out, this is necessary because judicial behavior may be affected when certain actors appear as litigants before the court. All cases included in this analysis where thus coded for litigant characteristics (appellant and respondent).…”

“…Here, I consider another possibility: when a president is a direct litigant to the case adjudicated by the CC, the court will be deferential and more willing to rule in the president's favor. Schwartz (2000) and Herron and Randazzo (2003), for example, conclude that concentrated executive power is a significant factor in explaining judicial subservience in the post-communist countries. To control for this possible effect, I measure when the president (or a high-ranking member of the presidential administration) appears as an appellant before the CC and asks the court to invalidate legislative statutes, policy decisions of regional/local authorities, or rulings of the courts of general jurisdiction.…”

Uncovering Patterns Among Latent Variables: Human Rights and De Facto Judicial Independence

“…Most constitutions contain provisions that empower the judiciary to "check state power" 2), but these provisions are not necessarily a strong predictor of the extent to which courts can act independently of the executive (Herron and Randazzo, 2003;. Even if the law guarantees courts specific powers, a regime could still constrain judicial authority by ignoring legal restrictions or by creating other laws, institutions, and norms that erode judicial independence (Silverstein, 2008).…”