4. Judicial review and anti-majoritarianism in democratic transitions

Reflecting on democratic transitions, Stephen Holmes provocatively wrote that: ‘Democracy does not exist, but degrees of democratization do. A society becomes more democratic if more citizens become routinely able to use legal instruments to protect their vital interests.’ (Holmes 2004: 14). This statement makes a clear link between democratic transitions and legal reforms. According to this view, institutional reforms of the post-authoritarian judiciary are particularly important and need to achieve two primary goals – the liberation of the judiciary from authoritarian influences, and its adoption of democratic values and practices. The principle of judicial independence is not enough because it can result in the judiciary’s pursuit of corporate advantages rather than the reassertion and protection of liberal and democratic values. The re-education of judges, the reformulation of their role in the democratic rule of law, and the democratic cultivation of their expert legal knowledge are as important as formal constitutional guarantees of judicial independence (Britto 1997).

The involvement of the judiciary in political transitions cannot be underestimated. It is typical of all transitional countries (Yusuf 2009) and ‘new democracies’ (Ginsburg 2003). Apart from the process of constitution-making, democratic transitions, therefore, strongly rely on the institutional legitimacy of either the existing, or newly established constitutional and judicial review. Constitutional or supreme courts as guardians of the new democratic constitutional regime and the constitutional rights of citizens substantially enhance the power transfer from authoritarian state to empowered citizenry. Furthermore, they ensure the transparency of decisions and accountability of actions of all political players and parties involved in the process of democratization and emerging democratic constitutionalism.

Democracy and democratization need to be held accountable by the judiciary (Gloppen et al. 2004). Constitutional courts have two basic functions in democratic constitutionalism, namely, the power function of ‘guardian of the constitution’ under the system of democratic separation of power, and the function of protecting citizens’ constitutional rights (Solyom & Brunner 2000). They are anti-majoritarian institutions primarily limiting the powers of other political actors, and therefore can impact strongly on both the process of democratic transition and the subsequent process of consolidating constitutional democracy.

This important contribution of the independent judiciary and particularly constitutional courts is possible to witness in all democratic transitions, from post-communist Europe and post-apartheidSouth Africato democratized politics in many Asian societies. In times of political crises, these courts often become the most important institutions protecting the principles of democracy against the authoritarian backlash. For instance, the role of constitutional courts in constraining political actors and strengthening the constitutional dimension of democracy has been essential in political changes from ‘rule by law’ to the ‘rule of law’ in Taiwan and South Korea (Ginsburg 2003: 206-45).

5. TRANSITIONAL JUSTICE

In the process of democratic transition, the rule of law and a democratic judiciary are indispensable. However, the legal justice of the democratic state is accompanied by a specific category of transitional justice as both a vehicle of the process of transition to democracy and a way of dealing with the crimes and injustices of the collapsed authoritarian regime. It guarantees political change and power transition and protects new political values associated with the transitional process.