Comparative Analysis of Judicial Review in Parliamentary and Presidential Systems Reginald S. Sheehan Michigan State University William Myers University of Tampa Paper prepared for presentation at the XXII World Congress of Political Science. Madrid, Spain. 2012
Introduction The countermajoritarian difficulty, a democratic dilemma where unelected judges are able to strike down laws passed by the people’s representatives via the exercise of judicial review, is often raised in discussions of the United States Supreme Court. Yet, the spread of judicial review to courts throughout the world suggests that this power is far from in decline and has, in fact, become enshrined as a key dimension of judicial independence. In this study, we utilize the decisions from eleven national high courts over an extended period to explore the propensity for democratic courts to exercise the power of judicial review. We examine differences in Presidential and Parliamentary systems, and we also examine countries at various levels of development. Our analysis allows us to begin explore how institutional variation between courts leads to differential outcomes when exercising judicial review. The results have implications for scholars interested in separation of powers questions, the role of judicial review in developing democracies and the impact of legal structures on the extent of judicial independence exercised by high courts. Countermajoritarian Difficulty In recent years, we have seen an expansion of judicial power around the world and the spread of the judicialization of politics in many democracies (Tate and Vallinder, 1995). An integral part of the development of judicial power is the ability of legal institutions to engage in judicial review. Judicial review is accepted as the power of a court to overturn the actions of duly elected institutions. In most democracies, this is the power to undermine parliamentary sovereignty and impose the will of an unelected group of individuals through their judicial decisions. Therein lies the problem with judicial review according to most of the legal scholarship. This problem was best stated by Alexander Bickel (1986) when he coined the term “countermajoritarian difficulty” to illuminate the conflict between democratically elected institutions that engage in promoting the will of the majority and unelected institutions that have the power to subvert the will of the majority in the interest of minorities. There are many ways to perceive the countermajoritarian difficulty, some have focused on judicial decision making that is counter to the public will via measures of public opinion (Mishler and Sheehan, 1992; 1994) while others focus more on the issue of separation of powers ( Dahl, 1957). Normative legal scholarship has been primarily concerned with the paradox of judicial review in developing democracies and the extent to which it is a hindrance or promoter of democratic ideals and rule of law (see Ginsburg, 2003). Even though we are witnessing an expansion of the power of judicial review around the globe, most of the legal scholarship seems to be concerned with the negative impact of the countermajoritarian problem, as we observe courts becoming more involved in political issues once left to popularly elected institutions. The underlying premise of this concern is that democracy is being threatened when judicial institutions engage in resolving questions of politics rather than adjudicating legal issues. The perception is that decisions by judicial institutions that overturn acts of parliaments subjugate the legitimacy of the democratic process. Government by majority rule is a basic tenet of democracy and the utilization of judicial review to undermine this tenet is a movement away from democratic ideals of the sovereignty of majority will. The countermajoritarian difficulty is not as problematic if we consider democracy from a broader theoretical framework. Thomas Ginsburg (2003) argues that contrary to much of the legal scholarship’s arguments, the growth of the power of judicial review may advance democracy. He suggests that even though judicial review may be countermajoritarian, it does not necessarily follow that it is counter-­‐
democratic. According to Ginsburg, judicial review has become an important part of constitutional development in new democracies around the world. Since World War II we have seen an increase in the creation of constitutional courts designated to review parliamentary bodies and the design of political systems with the power of judicial review is now well accepted as an important component in developing democracies. Ginsburg’s argument is based on the idea that parliamentary sovereignty in systems with a dominant political party can lead to less democracy since certain groups will be excluded from the political process. Constitutional courts and judicial review provide a political voice for those who will never have a chance to exercise majority rule. The result is the advancement of democracy by encouraging minority political groups to be more compliant with parliamentary rule. If minority groups believe they have another access point in the system to address their concerns, they are less likely to engage in political noncompliance. In many developing democracies we have seen a “rights revolution” (Epp, 1998) take hold and a decline in parliamentary sovereignty as this judicial power has increased. The debate over the countermajoritarian difficulty in legal scholarship revolves more around discussions of constitutional design for developing democracies. The American model is one of ordinary courts utilizing the power of judicial review, a power that developed over a long history with incremental decisions building on Chief Justice John Marshall’s language in Marbury v Madison (5 U.S (1 Cranch) 137: 1803). In systems designed since World War II, we have seen the Kelsen (1928) model in many European countries in which a constitutional court is created to exercise review of political institutions. The result has been an expansion of judicial review as an institutional component of democracies. From a political science perspective, the countermajoritarian difficulty is of more interest from a behavioral and decision making vantage point. Specifically, we are interested in the extent to which judicial power grows after its creation and the factors that promote expansion of judicial power. Clearly, constitutional design is an important influence in this regard in that how you design the judicial institution will impact the extent to which judicial review is utilized against majoritarian institutions. Thus, institutional factors are important variables in analyzing judicial review. But we assume that once judicial review is established, whether under the American model or the Kelsen model, the factors that hinder or promote the exercise of judicial review involve politics. We turn to a discussion of those factors in the next section. Deriving Judicial Power Via Judicial Review The degree to which judicial review is exercised in democracies will vary across countries depending on various factors derived from institutional design and political environment. We do not address questions of cultural determinism that are often found in comparative literature because we believe the development of judicial power is a function of political factors. Our primary focus is on the political environment that is most conducive to the expansion of judicial review and power. The political environment in which judicial review is more likely to be utilized is one where there are high levels of judicial independence and low levels of dominance by a political regime. Moreover, political systems designed to discourage dominance by a political entity are more likely to see higher levels of judicial review. The two systems found in common law democracies are Parliamentary and Presidential systems. Ackerman (1997) argues that Presidential systems encourage judicial review because they split political power between an executive and legislative branch. Conflict between the branches opens the door for a third institution, i.e. the judiciary, to intervene as a moderator in political disputes. Of course, the American system is the classic example of a Presidential system where judicial review is utilized by the Supreme Court to overturn majority will and uphold minority rights. In a Parliamentary system, you are less likely to have institutional conflict since the system, in most cases, is based on strong party loyalty and the executive is situated in the Parliament. England is an example of a strong Parliamentary system and we would expect judicial review to be less prevalent there compared to the United States. Australia presents a hybrid where the Parliament consist of a House of Representatives and a Senate with the upper branch having significant powers, and therefore, there is a greater possibility of inter parliamentary conflict than in the traditional British model. More recently, Ginsburg (2003) argues that while we might expect differences between a presidential and parliamentarian system, the actual derivative of judicial power via judicial review is “political diffusion.” Political uncertainty in a system will lead to an avenue for the courts to engage in judicial review without concern for non-­‐compliance by the other institutions. Underlying Ginsburg’s argument is the recognition that institutional legitimacy is a major factor in a Court’s decision whether to overturn a legislative or executive body. In a political environment where there is political dominance by one party, the party is more likely to ignore the decision of the court and thus institutional legitimacy may suffer if the court engages in judicial review. Conversely, in an environment where one party does not dominate political power, the court can more safely engage in judicial review without compliance repercussions. Thus, even in a parliamentary system you can have a political environment where power is more diffused and therefore judicial review can expand without concern for institutional legitimacy. Concomitantly, in a presidential system you can have political dominance of both the executive and legislative branches for a long period of time and judicial review will be constrained. These arguments would seem to not be mutually exclusive. In fact variations on the parliamentary and presidential model do exist among countries so we might expect those variations to lead to different levels of judicial review. Moreover, it is likely that the interaction of institutional design and political diffusion are important indicators of when judicial review will expand and judicial power will be exercised. Within the presidential and parliamentary systems there are variants that may affect how judicial power will develop. These variants are related to judicial independence. It is generally accepted that the higher the level of judicial independence the greater the likelihood of successful use of judicial review. The method of selection of judges is an important determinant of judicial independence. Judges are generally selected using three different approaches, an executive or legislative dominated scheme, a joint executive/legislative scheme, or some form of electoral representation. Consistent with the political diffusion argument, one would expect judges selected under joint systems to be more politically insulated than those selected under a single institution dominated system. The electoral system presents interesting ambiguity because accountability lies with the people but it would imply that there is less judicial independence since the judge can be removed. The joint system provides a separation of power that allows the judge to not be beholding to a single institution. Of course, this is given even greater weight if there is absence of political dominance in the two institutions making the selection. Similar to selection, the tenure of the judge is also a determinant of independence. In some countries judges are appointed for life and cannot be removed without cause, while in other systems you may have reappointment mechanisms or election cycles that occur throughout the judge’s tenure. There are other systems that have mandatory retirement at a pre-­‐determined age. Life-­‐time tenure insulates the judges from political consequences of their decisions. Judges who must appear before the appointing institution at intervals or stand for election will find themselves less likely to engage in actions not supportive of the majority. Judicial review becomes more difficult for those judges. The jurisdiction of the court will affect the extent to which it can engage in judicial review. The greater the jurisdiction the more likely litigants can seek out remedies for infringement on minority rights by the majority. Some countries have fairly restricted jurisdiction for their high courts while others have expansive jurisdiction. The United States Supreme Court only hears cases involving a “live case and controversy” and a federal question or constitutional issue. The Australia High Court can hear cases from federal courts and any state or territorial courts including cases involving local law without any federal issue. Even though those cases would not engage constitutional review at the federal level, it does allow the High Court to review state actions in regard to individual rights. India has expansive jurisdiction with not only the power to hear live cases but also the power to issue advisory rulings on constitutional issues. Another variation in jurisdiction across countries is determined by the presence of a rights document in the constitution. An individual rights document provides the legal platform for litigants to seek out review by the courts. In recent years there has been a movement toward adopting constitutional rights documents around the world and we would expect this has increased the judicial power of courts. Finally, the development of judicial review in a country would seem to be evolutionary rather than instantaneous. It is somewhat of a misconception that judicial review was established with a single decision in the United States when Marbury v Madision was decided. In actuality, judicial review evolved over time as the Court slowly built on the decision with subsequent cases up until the Warren Court. The early decisions of the Supreme Court were more often than not supportive of the central government and some suggests that this is a requirement for judicial review to succeed in a new democracy (Ginsburg, 2003). In recent years, we have seen developing countries like South Africa adopt the Kelsen model with a constitutional court and accept judicial review as part of democratization. But it is not clear if courts in new developing democracies can actively engage in judicial review immediately upon creation. The careful development of the power of judicial review would seem to be necessary for the court to survive as an institution in the new regime. Judicial power will be derived over time as the relationship between the court and elected institutions is delineated with judicial decisions and legislative reactions. The expansion of judicial power around the globe is a phenomenon that needs further comparative study. The question of what factors lead to greater judicial review is complex and the development of an overall theory is beyond this paper. We do believe the answer lies in a political theory but the number of variables is insurmountable at this early stage in the development of comparative judicial politics. Nevertheless, we hope to contribute to this development by examining judicial review in democratic countries from a comparative perspective. The primary question we address in this paper is under what conditions will the power of judicial review be more accessible and utilized by a high court. We approach this question with the predisposition that the answer can be found in a political theory of the development of judicial power. We recognize there are alternative explanations, like cultural variation, but we accept the theoretical premise that judicial review can develop and judicial power will expand in a democracy if the right political environment is available. This can occur regardless of the history and cultural differences of the democracies. As mentioned earlier, it is beyond this paper to develop a comprehensive theory of judicial review but we hope to move in that direction by examining the decision making of high courts in ten countries that have variation across two of our major variables of interest, presidential versus parliamentary systems and countries at various stages of development. The research is ongoing and we hope to continue to develop a model of decision making that will incorporate many of the factors we have discussed so far in the paper, as we continue to obtain data for each country. Expected Relationship: Countries adopting a presidential system of government will exhibit different levels of judicial review than those adopting a parliamentary system. Of course, there is variation within this relationship in that countries like Australia have a system based on both the strong parliamentarian system of England and the more limited federalist system of the United States. While there is not a President in Australia, there is still greater conflict between elected institutions that according to the theory allows more opportunity for the High Court of Australia to play a role as moderator of disputes between the elected houses. We would expect Australia to fall somewhere between England and the United States in levels of judicial activism. Expected Relationship: Levels of judicial review in a country will be related to the length of time democracy has been established. The evolution of judicial power relationship assumes new democracies, even with specifically defined constitutional courts and granted powers of judicial review, will be reluctant to exercise the power in the early stages of development. With time, the court is able to foster the power of judicial review and we will see increases in its use as the country develops and the institutions evolve. This is not an economic development hypothesis but rather a political development hypothesis. Several of the countries in our data are economically developing countries and currently in the early stages of democracy. Methods and Data The data for our analysis comes from the High Court Judicial Data Base and consist of variables identifying case characteristics, judge characteristics, decision and voting data, litigant characteristics and attorney information. The data was collected with funding from the National Science Foundation under the supervision of Stacia Haynie, Reginald Sheehan, Donald Songer and C. Neal Tate. The data set can be found on the Judicial Research Initiative website at the University of South Carolina (http://www.cas.sc.edu/poli/juri/). The data for the United States is from the Spaeth US Supreme Court database that is also located at the same website. The data consists of variables identifying case characteristics, judge characteristics, case decisions and voting data, litigant characteristics and attorney information for eleven countries with common law legal traditions. These countries include Australia, Canada, India, the United Kingdom, Zimbabwe, Namibia, the Philippines, South Africa, Tanzania, the United States and Zambia. The data consist of at least thirty years of decisions for Australia, Canada, India, the United Kingdom, the Philippines, South Africa and the United States. We also have data for shorter periods of time for Zimbabwe (eleven years), Namibia (eight years), Tanzania (fifteen years) and Zambia (twenty-­‐four years). The use of this database also allows us to make a useful distinction between systems of government including federalism.1 Six of these countries can be classified as employing a presidential system (Namibia, the Philippines, South Africa, Tanzania, the United States and Zambia), while the other five countries can be classified as using a parliamentary system (Australia, Canada, India, the United Kingdom and Zimbabwe). Four of the countries in the database are federal systems (Australia, Canada, India and the United States), which we anticipate will increase the use of judicial review if for no other reason than it increases the number of potential challengers to national or federal government actions (see Tsebelis 2002). We also take advantage of being able to classify each country in terms of its regime type. We employ Polity IV scores2 to classify each country as a democracy (+6 and above), an autocracy (-­‐6 and below) or a mixed regime (between +5 and -­‐5). We believe making these distinctions are important because courts operating under autocratic regimes are less likely to exercise judicial review (Ginsburg and Moustafa 2008), while courts in democratic regimes may be freer to entertain such actions, especially when those countries contain a bill or charter of rights in its constitution. Classifying each country and court by regime type will also allow us to distinguish between countries that have long-­‐standing democratic traditions compared to those that have oscillated in or out of democracy. 1
Systems of government were verified using the CIA World Factbook 2009.
2 Marshall Monty G. and Keith Jaggers. 2010. Polity IV Project: Political Regime Characteristics and Transitions 1800–2010. Center for Systemic Peace: http://www.systemicpeace.org/polity/polity4.htm. Given our interest in studying the use of judicial review across systems of government, we select all cases to which the national or federal government is a party that involved the application of judicial review. We define judicial review as a negative action of a national high court. Judicial review takes place if a law or an executive/administrative action is struck down otherwise it is upheld. Figure 1 displays the proportion of judicial review in each country according to its system of government (presidential or parliamentary). What becomes immediately apparent is the amount of variation in the proportion of judicial review across presidential systems. Three countries (Namibia, Tanzania and South Africa) are all over fifty percent, while the United States is under twenty percent. It appears that the United States Supreme Court rarely strikes down actions by the government in comparison with three of its counterparts in Africa. However, we should note that the number of cases involving judicial review and the United States Supreme Court absolutely dwarfs the number of cases heard by the African high courts by several orders of magnitude.3 [Insert Figure 1 about here] The variation across parliamentary systems is less striking. Three of the five courts (Australia, Canada and the United Kingdom) are below forty percent and only one court (Zimbabwe) is over fifty percent. Based on the principle of parliamentary sovereignty, which suggests that parliament exercises unlimited legislative authority that cannot be challenged by a judicial authority (Dicey 1982), we might expect high courts in parliamentary regimes to be less likely to exercise judicial review. In the next section, we conduct a series of independent sample T-­‐tests in order to see if a difference between the mean of various groups are statistically different 3
See Table A1 in the Appendix.
from one another in the application of judicial review. In each of the tests we assume unequal variances, a conservative assumption4, because we do not want to make the assumption that the process of judicial review operates uniformly across systems of government. We view this as a preliminary analysis meant to provide a broad descriptive account of the extent of variation in the use of judicial review across the systems of government and countries under investigation. We recognize that our analyses represent a small, but crucial first step in exploring these relationships in a more sophisticated manner in the future. Findings Table 1 presents the results of a series of difference of means tests comparing judicial review under various aspects of countries under presidential and parliamentary systems of government. The first test is between presidential and parliamentary systems and whether the difference of means in judicial review is different from zero. The t-­‐statistic is highly statistically significant (p < .001) and indicates that there is indeed a difference between presidential and parliamentary systems in the use of judicial review by national high courts. [Insert Table 1 about here] Now that we have established this basic relationship, we seek to further explore the differences across systems of government by examining regime types. We begin by examining instances of judicial review that took place while a country was classified as a democracy (+6 and above according to Polity IV). The difference of means t-­‐
statistic is highly significant (p < .001) and indicates that judicial review is exercised differently between presidential and parliamentary democratic regimes. We then make the same comparison, but between countries that were classified as non-­‐
4
Assuming unequal variances calls for the use of Satterthwaite’s degrees of freedom, an
alternative way to calculate degrees of freedom, that takes into account that the variances
are assumed to be unequal.
democratic (below +6 according to Polity IV). Again, we observe a statistically significant (p < .05) mean difference, which indicates that judicial review is exercised differently under presidential and parliamentary non-­‐democratic regimes. Democratic stability, lack of a democratic backslide, may have an important influence on the use of judicial review. Stability in democratic institutions and consolidation may allow courts to foster the power of judicial review without risking institutional legitimacy. Only six of the eleven courts in our database remained democratic over the entire period of observation: Australia, Canada, the United Kingdom, the United States, India and Namibia. We conduct differences of means tests across these stable democracies to see whether democratic stability overrides the system of government in the application of judicial review. The t-­‐
statistic is highly significant (p < .001), which indicates that the exercise of judicial review operates different under presidential and parliamentary systems even when those countries are highly democratic and stable. What about judicial review in non-­‐stable democracies (all countries that were not democratic over the entire period)? The t-­‐statistic does not reach statistical significance, which indicates the difference in means across non-­‐democratic presidential and parliamentary systems is not distinguishable from zero. We interpret this result to imply that judicial review may require long-­‐standing democratic institutions in order to fully distinguish itself across system types. In other words, the type of government system does not affect the exercise of judicial review in non-­‐stable democracies. Does the presence of a bill or charter of rights affect the exercise of judicial review across presidential and parliamentary systems? Our analysis suggests this is indeed the case. The difference in means of courts exercising judicial review with a bill or charter of rights across systems of government is highly significant (p < .001). Likewise, the difference in means of courts exercising judicial review without a bill or charter also leads to a difference between presidential and parliamentary systems (p < .001). We interpret these results to imply that judicial review is exercised in a different manner depending on the presence of a bill or charter of rights as well as the system of government. Lastly, we consider whether the presence of federalism may have an affect on how judicial review is exercised between system types. For countries with federalism, the difference in means in the exercise of judicial review between presidential and parliamentary systems is highly significant (p < .001). The test indicates that federalism has differential implications for judicial review depending on whether the system is presidential or parliamentary. We also conduct a difference in means test for those countries that do not have federalism. The difference in means test is not statistically significant. The implication is that systems of government do not affect the exercise of judicial review in countries without federalism. Discussion In this preliminary analysis we focus on broad descriptive accounts of the extent of variation in judicial review across our countries. Moreover, we specifically were interested in if the variation breaks down along the lines supporting our two hypotheses. The findings in the descriptive data indicate a significant difference among Presidential and Parliamentary systems in utilizing judicial review. Consistent with our theoretical expectations, Presidential systems provide a greater opportunity for high courts to exercise the power of judicial review. Separation of power systems are more prone to create political environments where institutional conflict is likely to occur and the court will find itself in the role of moderating those disputes. But we do not want to put too much emphasis on these findings at this early stage since we do not have controls for political diffusion in this analysis. We are also not at a stage were we can do probability analyses as to the likelihood of overturning majority institutions, but the data do indicate there are significant differences and we need to explore more fully the factors contributing to these differences. As a beginning to this process, we did examine differences between the systems while controlling for levels of democracy, democratic stability, presence of a rights document and federalism. The findings indicated the presidential/parliamentary distinction held when controlling for democratic/non-­‐democratic regimes and for whether their was/was not a rights document. Conversely, when we control for stable versus non-­‐stable democracies and federalism, we find the distinction breaks down in non-­‐stable and in non-­‐federalism countries. We consider these findings interesting because they do provide some support for normative theories regarding judicial review but they are more interesting because they raise numerous questions that we can pursue empirically with future research. The most important of which is under what conditions in a Presidential system is the court more likely to overturn the majority institutions? Is political diffusion the factor that is driving the difference across systems or do we find the distinction still occurs when we control for political party dominance? What are the factors driving the differences in federalism versus non-­‐federalism systems? Will judicial review be even greater in a federalism system when we examine review of lower level institutions? It is also important to recognize there are differences in types of judicial review. We need to break down case types into individual rights claims, federalism review and separation of powers cases. It is likely we will have a better a idea of how the presence of a rights document and the federalist structure interact with presidential/parliamentary system types once we separate out variations in judicial review. Our hope in future versions of these analyses is to develop a decision making model that will incorporate our selection, tenure of judge, jurisdiction variables and more precise controls for political diffusion at various points in the history of each country. We recognize that many of our variables are country characteristics and will be problematic given the small number of countries, but those are problems we are currently working to overcome. In many ways, our paper is a description of a research agenda we are currently engaging in, but these preliminary results do suggests that there is variation in the exercise of judicial review across our countries and there is early evidence that institutional structure does matter. The early evidence also indicates that the extent to which there is a difference between parliamentary and presidential systems in utilizing judicial review is mitigated by other institutional factors. Our path forward is to begin to develop a more fully specified model of judicial review that will incorporate the factors we briefly examined in this paper along with other institutional and political influences. The expansion of judicial review around the world and the resulting judicialization of politics across many countries is arguably one of the most important areas of research for judicial scholars. Constitutional scholars have recognized this for years but political scientist have been slow to turn their attention to the phenomenon. Even more disappointing has been the lack of multi-­‐country studies and cross-­‐national data analyses in this area of research. In future versions of this paper, we hope to advance both of these causes. FIGURE 1 Proportion of Judicial Review by System of Government Note: Judicial review is defined as either a law or an executive/administrative action being struck down by a nation’s highest court. The reference line refers to the mean proportion of judicial review within each system of government. Table 1. Differences in Means in Judicial Review Across Systems of Government
Presidential
Parliamentary
.20
.39
12.67***
.20
.35
.18
.38
.55
.38
12.24***
2.48*
13.57***
.43
.55
1.81
Bill/Charter of
Rights
Yes
No
.18
.22
.39
.39
9.95***
7.85***
Federalism
Yes
No
.17
.44
.39
.42
13.40***
-0.42
Judicial Review
Regime Types
Democracies
Non-Democracies
Stable Democracies
Non-Stable
Democracies
*** p < .001; ** p < . 01; * p < .05; two-tailed tests
Independent Sample T-­‐test, Assuming Unequal Variances t-statistic
Appendix TABLE A1. Exercise of Judicial Review (Numbers of Cases)
Law or Action
Law or Action Struck
Country
Upheld
Down
United States
Canada
United Kingdom
Tanzania
Zambia
Zimbabwe
South Africa
Namibia
India
Philippines
Australia
2016
337
85
3
26
29
45
4
204
78
185
421
185
45
4
17
36
49
6
167
44
109
Total
2437
522
130
7
43
65
94
10
371
122
294
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