Electoral Systems and Judicial Review in Developing Countries *

he interest regarding the effects a strong Judiciary may have on political systems has a long history. Tocqueville in his seminal work Democracy in America had already warned us of such phenomenon centuries ago1. Very recently, political science as a discipline has dealt with the global phenomenon of the expansion of Judiciary Power. This process presents itself through various levels of social relations up until the political level. In the specific field of politics, we may see the growing inclusion of the Judiciary as an important, and often decisive, actor in decision-making processes2. The purpose of this book is to study the determinants in the constitutional empowerment (or lack thereof) of the judiciary in young democracies in developing countries, examining the conditions through which the judiciary was granted the important legal mechanism of judicial review. The book also attempts


Electoral Systems and Judicial Review in Developing
Countries* Ernani Carvalho Universidade Federal de Pernambuco, Brazil Leon Victor de Queiroz Barbosa Universidade Federal de Campina Grande, Brazil (Yadav, Vineeta and Mukherjee, Bumba. Democracy, Electoral Systems, and Judicial Empowerment in Developing Countries. Michigan Press, 2014) he interest regarding the effects a strong Judiciary may have on political systems has a long history. Tocqueville in his seminal work Democracy in America had already warned us of such phenomenon centuries ago 1 .
Very recently, political science as a discipline has dealt with the global phenomenon of the expansion of Judiciary Power. This process presents itself through various levels of social relations up until the political level. In the specific field of politics, we may see the growing inclusion of the Judiciary as an important, and often decisive, actor in decision-making processes 2 .
The purpose of this book is to study the determinants in the constitutional empowerment (or lack thereof) of the judiciary in young democracies in developing countries, examining the conditions through which the judiciary was granted the important legal mechanism of judicial review. The book also attempts * http://dx.doi.org/10.1590/1981-38212015000300024 1 Robert Dahl also sought to understand this phenomenon, a strictly US issue at the time (1957). 2 A vast literature addresses judicial empowerment in Western democracies: Ferejohn (2002); Hirschl (2001Hirschl ( , 2004; Koopmans (2003) and Tate and Valinder (1995), among others. The second chapter provides the theoretical framework seeking answer two questions: 1) During the early years of transitional governments, why did some democracies (but not others) deny or constitutionally restrict full judicial review? 2) Why does high political competition, by reducing the expected time in power, provide incentives to the government in some democracies to protect and enhance judicial independence, but induces other governments to curtail the judiciary's autonomy? The literature shows that judicial independence (de jure or de facto) is the result of strategic interactions between key rational actors insofar that they confront and seek to resolve several political challenges to stay in power.
The authors attempt to connect the institutional characteristics of a country to its choice to institutionalize judicial review and the level of de facto judicial independence.
Changes in the institutional design of judicial review and in the de facto independence of the courts in democracies in developing countries lead to the question: why and when are governments of the world's developing democracies less likely to adopt full judicial review in the early years of transition? The first hypothesis is that governments controlling a sufficient number of legislative seats are less likely to adopt judicial review if public confidence in the judiciary increases in the periods immediately after the transition. The second hypothesis states that in the context of high risk-rates in power, incumbents in personalist electoral systems (centered on the candidate) are more likely to increase de facto judicial independence.
In the third chapter, the authors statistically test the hypotheses from the and, therefore, low expectations of remaining in power, governments will tend to restrict de facto judicial independence in countries with party-based electoral systems (low degree of individualism), but will act the opposite when the system is based on candidates (high degree of individualism). The authors sought to strengthen the argument by using two countries with electoral systems highly based on candidates: Brazil and India. Using data from each country through a qualitative approach illustrates that when faced with high-risk rate, theses governments increase the values of judicial independence precisely because of the internal weakness and the low unity level of political parties. As a result, incumbents have strong political incentives to increase the autonomy of the courts when their survival in power becomes seriously threatened. This leads to two implications: 1) in general, governments in democracies with highly individualistic electoral systems (centered on candidates) are more likely to at least maintain de facto judicial independence if the risk rate of staying in power is high. Specifically speaking, de facto judicial autonomy is likely to remain high in Brazil and India in the near future insofar that the government's risk rate in these two countries remains high in the future; 2) it is plausible that the high de facto autonomy in Brazil's and India's courts may lead to further judicial activism. This is crucial since researchers in Brazil have questioned whether judicial activism can increase, decrease, or maintain the status quo in these countries. The authors' belief is that judicial activism in Brazil and India tends to increase.
The final chapter provides a parallel in the politics of the de facto autonomy of courts in a democracy in a development country displaying low levels of particularism and a high risk-rate. The Indonesian case illustrates the causal arguments that unfold from the second hypotheses, since the Indonesian judiciary is often described as an institution lacking judicial autonomy. The Indonesian case confirms that the degree of centralization within parties (determined by electoral rules) explains why political actors in some democracies in developing countries are more likely to reduce de facto judicial independence when their time in power decreases. The analysis shows that the presence of a closed-list proportional electoral system, with grouped votes and ballots controlled by parties, resulted in strong, centralized parties, which endowed political elites with incentives and capacity to undertake restrictive actions on the independence of the courts.
The book has undertaken a vigorous theoretical and analytical effort, formulating the intertwining of the workings of the political system and its consequences in the strengthening (or otherwise) of judicial institutions. It shows innovation by articulating several methods associated with a strategic perspective 5 of the functioning of institutions.