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ABSTRACT
This article focuses on the efforts of power holders – at the executive or the legislative level – to influence or curb court activity informally or extra-legally, an acknowledged but under-researched topic in studies of judicial politics. We first define informal judicial interference and operationalize the concept; we then explain how we collected information on the topic through systematic cross-country interviewing. Our concept focuses on judicial intervention actions exercised by political actors once judges are on the bench. We distinguish these actions according to type – direct or subtle – and further differentiate each type according to six different modes. We provide new empirical data on informal interference in six third-wave democracies, three in Africa (Benin, Madagascar, and Senegal) and three in Latin America (Argentina, Chile, and Paraguay). Our empirical findings, first, confirm the importance of informal practices in shaping political-judicial relations. Second, they point to long-standing legacies and to the level of socio-economic development as possible explanations for different performances in terms of the prevalence and severity of informal interference in the judiciary in these newly established democratic regimes
Acknowledgements
Earlier versions of this article have been presented at the ECPR Joint Sessions in Mainz, on 12 March 2013; at the ECPR 7th General Conference in Bordeaux, on 6 September 2013; and at the ALACIP 7th Latin American Congress of Political Science in Bogotá, on 27 September 2013. We are very grateful to the discussants, Julio Ríos-figueroa, Benjamin Engst, and Juan Carlos Rodríguez Raga, for their insightful comments. We also wish to thank two anonymous reviewers for their helpful contributions.
Disclosure statement
No potential conflict of interest was reported by the authors.
Funding
This work was supported by the Pakt für Forschung und Innovation, SAW Verfahren, Leibniz-Gemeinschaft, Germany [SAW-2011-GIGA-5].
Notes on contributors
Mariana Llanos is a Senior Research Fellow at the GIGA Institute of Latin American Studies and the head of GIGA’s Research Program 1 Legitimacy and Efficiency of Political Systems. Between 2011 and 2015 she directed the project “Judicial (In)dependence in New Democracies. Courts, Presidents and Legislatures in Latin America and Sub-Saharan Africa”. She works on the comparative political institutions of Latin America and has published extensively in the field.
Cordula Tibi Weber is a Ph.D. student at the GIGA Institute of Latin American Studies. She was a member of the project “Judicial (In)dependence in New Democracies”. Her dissertation deals with different roles of highest courts in new democracies and their implications for the quality of democracy.
Charlotte Heyl is a Ph.D. student at the University of Duisburg-Essen. She was a member of the project “Judicial (In)dependence in New Democracies” at the GIGA Institute of African Affairs. Her dissertation deals with the influence of African constitutional courts on the democratic quality of elections. She has recently published on the creation of West African constitutional courts in Comparative Politics (with Alexander Stroh).
Alexander Stroh is an Assistant Professor of Political Science at the University of Bayreuth, Germany. Previously, he was a researcher at the GIGA Institute of African Affairs, Hamburg, and a member of the project “Judicial (In)dependence in New Democracies”. He has published on party politics and elections as well as judicial independence in various comparative politics and African studies journals.
Notes
1. Hirschl, “The Judicialization of Politics.”
2. VonDoepp, Judicial Politics in New Democracies, 149.
3. Helmke, “Origins of Institutional Crisis.”
4. Helmke and Rosenbluth, “Regimes and the Rules of Law,” 347.
5. VonDoepp and Ellett, “Reworking Strategic Models of Executive-Judicial Relations.”
6. Sanchez Urribarri, “Politicization of the Latin American Judiciary.”
7. Popova, Politicized Justice in Emerging Democracies, 129.
8. Dodson and Jackson, “Judicial Independence in Central America.”
9. Foglesong, “Judicial (In)dependence in Russia.”
10. Sanchez Urribarri, “Politicization of the Latin American Judiciary”; Taylor, “The Limits of Judicial Independence.”
11. Foglesong, “Judicial (In)dependence in Russia.”
12. Lauth, “Informal Governance and Democratic Theory,” 48.
13. Brinks, “Faithful Servants.”
14. Ramseyer, “Puzzling (In)Dependence of Courts.”
15. Russell, “Toward a General Theory of Judicial Independence,” 20–21.
16. Kapiszewski and Taylor, “Doing Courts Justice?,” 750.
17. VonDoepp, “The Problem of Judicial Control in Africa's Neopatrimonial Democracies.”
18. Sanchez Urribarri, “Politicization of the Latin American Judiciary.”
19. Taylor, “The Limits of Judicial Independence.”
20. Popova, Politicized Justice in Emerging Democracies, 128–147.
21. Trochev and Ellett, “Judges and Their Allies.”
22. VonDoepp and Ellett, “Reworking Strategic Models of Executive-Judicial Relations.”
23. See Radnitz, “Informal Politics and the State,” 354; Helmke and Levitsky, “Informal Institutions and Comparative Politics,” 729.
24. Lauth, “Informal Governance and Democratic Theory,” 48.
25. VonDoepp and Ellett, “Reworking Strategic Models of Executive-Judicial Relations,” use the expressions “direct” and “subtle,” but they do not systematize the mechanisms of interference included within these categories. See Russell, “Toward a General Theory of Judicial Independence,” 21, for the distinction between open and covert actions.
26. Lauth, “Informal Institutions and Democracy,” 35–36.
27. Ibid., 37.
28. Blackburn, Bose, and Haque, “Endogenous Corruption in Economic Development,” 6.
29. O'Donnell, “Why the Rule of Law Matters,” 40–41.
30. Helmke and Levitsky, “Informal Institutions and Comparative Politics,” 733.
31. Radnitz, “Informal Politics and the State,” 365.
32. Basedau and Köllner, “Comparative Area Studies.”
33. Sil, “Cross-Regional Small-N Comparison.”
34. Gloppen, Gargarella, and Skaar, Democratization and the Judiciary; Gloppen et al., Courts and Power.
35. Comparative work on Africa includes Ellett, Judicial Power in Transitional States, and VonDoepp, Judicial Politics in New Democracies; on Latin America, Helmke and Ríos-figueroa, Courts in Latin America; and on Asia, Ginsburg, Judicial Review in New Democracies.
36. Gloppen et al., Courts and Power.
37. All six judiciary systems have a Roman law background, although the Argentine Supreme Court could be better described as a mixed system, because in practice it is more oriented to the experiences of common law countries, Helmke, Courts under Constraints, 176.
38. Benin, Chile, Madagascar, and Senegal have centralized constitutional review; Argentina has decentralized review; and the Paraguayan constitution allows for both (decentralized review to be used in the cases of amparo and habeas corpus).
39. UNDP, “Human Development Report 2013.”
40. The question was: 1.What are the mechanisms and the means that have been used to pressure the court or individual judges? We are not asking you for specific cases or names; we are only interested in your general assessment. However, if you want to cite specific examples, go ahead. [If not already part of the spontaneous answer:] How about … ? (a) Rhetorical attacks?; (b) Physical attacks?; (c) Personal threats of violence against judges?; (d) Informal communications such as phone calls?; (e) Bribes?; (f) The use of personal obligation due to social linkages?
41. The agreement imposes a penalty for a very small number of interviews. Due to national specifics, the interview count varied across cases. Given that we aimed to assess the confidence level about the existence of political interference, the fewer experts available for interviewing, the less confident we should be about the validity of the measure. Hence, the penalization of a low number of interviews is considered appropriate.
42. Our interviewees reported that ex post interference also occurs through formal mechanisms in these countries. The most prevalent mechanisms in Paraguay have been the non-renewal of judges’ mandates, despite constitutional dispositions for unlimited terms for supreme court judges, and impeachment. Impeachment was also highlighted in the case of Argentina. The use of these constitutional mechanisms for political intervention, in parallel to informal interference, should be born in mind when assessing the situation of the judiciaries in these two countries.
43. Former colonel Lino Oviedo was imprisoned for planning a coup in 1996. Shortly after assuming office, President Raúl Cubas (1998–1999), a close ally of Oviedo, declared the court decision against Oviedo void and set him free. The supreme court, in turn, declared the presidential decree unconstitutional and ordered the imprisonment of Oviedo, a decision that was publicly rejected by President Cubas. One judge recalled having received telephone threats and another an attack on his home on the occasion of that decision.
44. The Economist Intelligence Unit, “Country Report Senegal,” 12.
45. In 2005, under Wade, a law was adopted to close all political cases that were committed between 1983 and 2004. The first draft of this bill (Loi Ezzan) explicitly mentioned the assassination of Sèye.
46. An important line of research argues that courts tend to be stronger and more independent given conditions of political competition and electoral uncertainty (Ramseyer, “Puzzling (In)Dependence of Courts”; Ginsburg and Versteeg, “Why Do Countries Adopt Constitutional Review?”). We could likewise hypothesize that courts will suffer less informal interference if political competition is high because power holders facing uncertainty in coming elections need the insurance that an independent court provides. However, even though our six countries show diverse trajectories of electoral development between 1990 and 2012, we cannot find evidence of the impact of political competition on informal interference. All six countries have experienced two or three changes in the party holding the presidency and highly volatile presidential-winner margins, which have ranged between relatively close and clearly dominated races.
47. Helmke and Levitsky, “Informal Institutions and Comparative Politics”; Helmke and Rosenbluth, “Regimes and the Rules of Law”; Levitsky and Murillo, “Building Institutions on Weak Foundations”; O'Donnell, “On Informal Institutions,” 287.
48. North, Understanding the Process of Economic Change, 52.
49. Helmke and Staton, “Puzzling Judicial Politics,” 325–326.
50. Feld and Voigt, “Economic Growth and Judicial Independence”; Ginsburg, Judicial Review in New Democracies; Ríos-figueroa, “Institutions for Constitutional Justice.”
51. Before the 2005 reform, the constitutional court was composed of seven judges, who were also appointed through a non-cooperative mechanism. The judges had eight-year mandates and could be re-elected.
52. The substituting member completes the predecessor's mandate, and if this substitution lasts less than four and a half years, she can be a candidate for a subsequent full mandate. A couple of interviewees mentioned that in the so-called “Trans-Santiago Case” (in which the constitutional court rejected the financing plan for an important and politically crucial infrastructure project proposed by Michelle Bachelet's government (2006–2010), a substitute member's vote against the government's interest negatively affected his chances of re-election.
53. Stroh and Heyl, “Creation of West African Constitutional Courts.”
54. Marshall and Gurr, Polity IV. The Polity2 score ranges from +10 (strongly democratic) to −10 (strongly autocratic), Marshall, Gurr, and Jaggers, Polity IV Users' Manual, 17. Although Polity IV defines a “real” democracy as having a score of 6 to 10, we are using a lower specification, counting as “democratic experience” every coding above 0; that is, the years that, according to the indicator, have been more democratic than autocratic.
55. Cheibub, Gandhi, and Vreeland, “Democracy and Dictatorship Revisited.”
56. Helmke and Levitsky, “Informal Institutions and Comparative Politics,” 729. A line of research on institutional legacies has been developing both for Africa (Bratton and van de Walle, Democratic Experiments) and for Latin America (Pérez-Liñán and Mainwaring, “Regime Legacies”).
57. Reh, “Informal Politics,” 69.
58. Lauth, “Informal Institutions and Democracy,” 44.
59. Pérez-Liñán and Castagnola, “Presidential Control of High Courts.”
60. Bill Chavez, “Judicial Autonomy in Argentina.”
61. Hilbink, Judges Beyond Politics, 224.
62. Pérez-Liñán and Mainwaring, “Regime Legacies,” 394.
63. Hicken, “Clientelism”; Blackburn, Bose, and Haque, “Endogenous Corruption in Economic Development,” 6.
64. Soest, Bechle and Korte, “How Neopatrimonialism Affects the Tax Administration in Three World Regions?”; Erdmann and Engel, “Neopatrimonialism Reconsidered: Critical Review and Elaboration of an Elusive Concept.”
65. Luna, Murillo, and Schrank, “Latin American Political Economy,” 5–6.
66. Aydin, “Judicial Independence across Democratic Regimes,” 114.