WEBINAR 1: GLOBAL CHALLENGES - Democratic Erosion and Abusive Judicial Review

Rosalind DIXON & David LANDAU

11 November 2020

The Polish constitutional tribunal recently issued an opinion so radically limiting access to abortion for women that Poland now has some of the most restrictive abortion laws in the world. The decision met with widespread outrage from those committed to reproductive rights.

But behind the decision is an even deeper erosion in the role of courts in Polish democracy:  Polish courts have arguably been captured by the Law and Justice (PiS) regime, and its supporters, so that they are no longer guardians of democracy. They have become part of the architecture of its erosion.

In a recent paper, entitled Abusive Judicial Review, we explore this phenomenon in Poland and a range of other countries undergoing processes of democratic backsliding. We suggest that it is in fact quite common for courts to undermine the “minimum core” of democracy through judicial review – both by rubber stamping authoritarian actions through “weak” forms of review, and actively advancing their interests by issuing “strong” orders that invalidate constraints, such as term limits, which might otherwise pose obstacles to their consolidation of power.  Thus, while courts are often thought of as protecting democracy, they can be both protectors and weapons of its destruction in the hands of judges who are coerced or captured by a would-be authoritarian regime. 

Coercion or capture of this kind can also take many different forms: it can involve attacks on judges themselves, or judicial review as an institution, and both the actual and threatened use of a variety of tactics of judicial punishment and control. In some cases, regimes may also seek to undermine judicial independence through a kind of one-two punch strategy: first, by weakening independent courts as institutions, and then, gradually rebuilding their power and prestige, once they are fully “captured” or staffed by judges loyal the regime.

This raises obvious challenging questions for those committed to democracy. Are there any limits on this kind of abuse of judicial review by would-be authoritarians? Are there potential responses at the level of constitutional design, for example in how we design the process of judicial appointment or protect judicial independence?

Or is the challenge a more political one – i.e. how can international actors simultaneously promote respect for courts and judicial independence as values, while calling out instances of their abuse? The challenge of a “global realist” response of this kind, we suggest, is that would-be authoritarians are often quite careful to retain the appearance of judicial independence, even while attacking its substance. Indeed, this is part of a broader pattern of what, in our forthcoming book on the topic, we call “abusive constitutional borrowing” – i.e. the borrowing of the veneer of legitimacy associated with liberal democratic constitutional forms, in order to advance distinctly anti-democratic projects.

This does not mean that the global community is helpless in the face of abusive borrowing. It can sharpen its realist lens, and willingness to criticize instances of abuse, when they arise. But it does mean rethinking how we approach the practice of comparison, and our intuitions about legal globalization.

Rosalind Dixon is Professor of Law and Director of the Gilbert + Tobin Centre of Public Law at UNSW Sydney.

David Landau is Mason Ladd Professor and Associate Dean of International Programs at Florida State University College of Law.

Their new jointly authored book, Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy, is being published by Oxford University Press next year.