Can Law Protect Democracy? Legal Institutions As “Speed Bumps” – Hague Journal on the Rule of Law – article

Can Law Protect Democracy? Legal Institutions As “Speed Bumps”

Bojan Bugaric | Hague Journal on the Rule of Law

2019-11-19

The populist onslaught against the constitutional pillars of democracy has shown that the traditional “checks and balances” such as courts, independent electoral bodies, free media and civil and political rights might not be as powerful in defending democracy from backsliding towards autocracy as many legal scholars tend to believe. Many of them have argued that the most significant bulwark against the return of repression is the presence of strong constitutional courts. While they acknowledge that sustaining a democratic order relies on many factors and institutions, including political parties, they cling on to the belief that the reliance on constitutional courts and other constitutional checks and balances is the best way to protect democracy from backsliding. For some time, their wisdom seemed to have been validated by political developments around the world. In many emerging democracies, the courts have played a major role in building constitutional democracy during transition periods and have served as symbols of the rule of law. The constitutional courts of Hungary, Poland, and South Africa emerged over a relatively short period of time as the most influential rule of law institutions in their respective countries. Facilitated by outside institutions such as the Venice Commission on Democracy through Law in Europe, these courts became key “veto players” in the politics of the post-1989 transition to democracy. The importance of these constitutional courts continued to increase as their judgments attracted widespread attention from the legal profession and broader political audiences. Their power to review the constitutionality of statutes challenged the almost absolute supremacy that legislatures had previously enjoyed. The Hungarian Constitutional Court, under the strong leadership of liberal Chief Justice Solyom, issued a series of decisions that established its reputation as the key protector of political and social rights in Hungary. The constitutional courts of Poland, Slovenia, Slovakia and Romania also managed to offer a robust defence of key constitutional principles and basic rights enshrined in the post-1989 constitutions.

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