INTRODUCTION

In contrast with Taiwan's gradual transition, Mongolia presents a useful context for examining the position of a constitutional court created after a clear “constitutional moment.” Since 1990, Mongolia's democratization process has been unparalleled in socialist Asia and is as muscular as any postcommunist society in Europe. Several free and fair elections have been held, a new constitution with extensive human rights provisions ratified, and the formerly Leninist Mongolian People's Revolutionary Party (MPRP) has alternated turns in power with younger democratic parties. By any definition of the slippery concept of democratic consolidation, Mongolia has achieved it.

The new constitutional court, called the Tsets, initially played an important role in this process, constraining legislative majorities and building up a body of constitutional law in a society where socialist traditions of parliamentary sovereignty had previously held sway. As democratic institutions developed, however, the court was increasingly criticized for making overly political decisions. Ultimately, the court provoked a constitutional crisis and found itself increasingly politicized from outside.

Much of the controversy surrounding the court can be traced back to a single decision in 1996 that thrust the court into the center of heated political battle. This was the decision on the structure of government, issued immediately following the historic electoral victory of the National Democrat–Social Democrat coalition. That electoral victory had ended seventy-two years of continuous rule by the Mongolian People's Revolutionary Party (MPRP), the former communist party that had tried to steer post-1990 reforms.

INTRODUCTION

Political constraints on judicial power can become most apparent as they disappear during transitions from authoritarian rule. Conceptually, the simplest kind of transition involves a replacement of one regime by another and the formation of a new constitutional structure as the basis for government power. The task for constitutional courts in such circumstances is to speak for the new democratic order. By contrast, courts in gradual political and constitutional transitions face a more ambiguous environment. They may be unclear on the shifting preferences of key political forces. Furthermore, where courts had formerly served as instruments of government suppression, they are likely to face problems of legitimacy. As guardians of the old order, they may be under pressure to slow reform. They are subject to residual political controls and more subtle pressures.

How can a constitutional court that served an authoritarian regime become an instrument for democracy and human rights? This chapter discusses the Council of Grand Justices in the Republic of China (ROC) and its careful use of doctrine to expand constitutional review power where it had previously been constrained. In contrast with a “grand case” model of judicial review, wherein Herculean judges force the governing powers to comply with the dictates of the rule of law, the Taiwan example illustrates the merits of careful expansion of judicial power through a gradual, step-by-step process.

Modern scholarship on judicial review begins with the countermajoritarian difficulty. This famous problem focuses on the propriety of unelected judges, who lack democratic legitimacy, overturning duly enacted decisions of democratic assemblies. This normative challenge has been bolstered by theorists of democracy who argue that judicial power comes at the expense of representative institutions. Judicial review, from these perspectives, is not only unnecessary for democracy, but in fact suspect. In the face of these critiques, most legal scholars discussing judicial review have self-consciously adopted a defensive tone at the outset, trying to justify the role of courts in terms of democratic theory.

The conventional move to solve the problem of courts in democratic theory is to celebrate the role of judicial review in democracy as a check on majority power. Judicial review in this view can facilitate the democratic process by clearing out obstacles to its advancement. Such obstacles can emerge, for example, through majority impositions on the electoral process: It may be in the narrow self-interest of permanent majorities to disenfranchise political minorities, who then have no recourse through ordinary legislative processes. In such instances of systemic failure, the courts can clear the channels of the political process by striking statutes. By serving as a countermajoritarian institution, judicial review can ensure that minorities remain part of the system, bolster legitimacy, and save democracy from itself.

Several scholars have recently articulated a more majoritarian view of constitutionalism that emphasizes the need to empower rather than restrict majoritarian processes.

An old proverb says that when elephants fight, the grass gets trampled. So it is with political conflict and democracy. When political conflict becomes too severe, democracy can be trampled by political institutions run amok. By transforming political conflicts into constitutional dialogues, courts can reduce the threat to democracy and allow it to grow. To play this important role of contributing to democratic stability and deliberation, courts must develop their own power over time.

Constitutional courts play games of power in legal arenas. Courts are empowered by constitutional designers and given tools to protect the constitutional bargain. But the subsequent choices courts make as they play their games can supplement or deplete their arsenals. Courts can challenge others or can seek powerful allies. They can cautiously accumulate policy gains in an incremental fashion or boldly battle for large pieces of territory. They can choose their battles carefully, limiting conflicts to those they can win and thus making future threats credible; or they can blunder badly and provoke crippling counterattacks.

This chapter draws some comparative conclusions from the three case studies of courts in new democracies. These cases, though unusual in the sense that they have been heretofore understudied, illustrate the universal political logic of judicial review and present a range of outcomes that can serve as the basis for broader theory.

THE DESIGN OF SYSTEM: JUDICIAL REVIEW AS INSURANCE

Chapter 1 analogized the decision to adopt judicial review to the decision to purchase insurance in uncertain contracting environments.

INTRODUCTION

The two previous case studies of Taiwan and Mongolia traced the growth of judicial power in the shadow of dominant Leninist parties. In both cases, the dominant party was able to maintain substantial influence on the constitutional court in a democratic era, even as the preferences of the party evolved to reflect the changing rules of the political game. Korea presents a very different context for democratization because the prior regime was a military dictatorship. This type of regime has a different capacity for influencing a court under conditions of democratization, as argued in Chapter 3. Unlike dominant parties, military authoritarians have difficulty translating their power into democratic constitutional schemes. Their only threat is to exit the constitutional order completely. The Korean case therefore illustrates the difference between political party and military regimes in setting the stage for judicial review.

Unlike Taiwan and Mongolia, Korea's democratization process is sometimes characterized as incomplete. Whereas local scholars and politicians in the former two countries celebrate the successful transformation to democracy, scholars of Korean politics focus on the imperfections of its democracy, using such terms as procedural democracy, partial democracy, and electoral democracy to reflect their ambiguity. By any objective measure, however, Korea has made great strides since 1988 in reestablishing representative institutions, expanding protection of civil rights and political liberties, and transferring effective power from the military to civilians. The 1998 presidential inauguration of long-time dissident Kim Dae-jung marked a significant milestone in this regard.

THE DECLINE OF PARLIAMENTARY SOVEREIGNTY

The idea of the sovereignty of Parliament was long seen as the core of democratic practice. The superior position of the popularly elected legislature and its corollary of majority rule have been central principles for democratic revolutionaries since the notion was appended to the unwritten English constitution. At that time, the threat to liberty was monarchical power, and the subjugation of monarchical power to popular control was the primary goal. The resulting doctrine was that Parliament had “the right to make or unmake any law whatever; and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.”

In the continental tradition, the intellectual underpinning of parliamentary sovereignty was provided by the Rousseauian concept of the general will. The people were supreme, and their general will as expressed through their republican representatives could not be challenged. This theory, combined with the regressive position of the judicial parlements in the French Revolution, led to a long tradition of distrust of judges in France. The government du juges replaced the crown as the primary threat to popular will in French political thought.

It was natural that the early proponents of democracy supported parliamentary sovereignty. They saw threats to liberty from the traditional sources: the ancien régime, the monarchy, and the church.

I began this book by examining the arguments for and against the first and subsequent rounds of NATO enlargement and then proceeded to scrutinize the four East European states' preparedness for membership in the Alliance. I have two remaining tasks: first, to compare the record of Bulgaria, Romania, Slovakia, and Slovenia with respect to NATO's accession criteria as outlined in Chapter 1; and second, to briefly assess the benefits of potential enlargement scenarios. I strongly support the Alliance's further expansion to Eastern Europe. I am convinced, however, that candidate states should satisfy NATO's conditions of admission prior to becoming members.

PREPARATION FOR MEMBERSHIP

In this section I discuss six substantive areas that largely correspond to NATO's accession criteria. I will complement my personal ranking of the four states in each segment with other available ratings.

Democratic Politics and Minority Affairs

When considering the democratic transition and consolidation of Eastern Europe since 1989 it is important to recognize that the Czech Republic, Hungary, Poland, and Slovenia are not the regional norm. Far from it, these are states that have been remarkably successful compared to the rest of Eastern Europe and particularly when contrasted to the rest of the postcommunist world.

From the perspective of the four countries discussed in this book, Slovenia is clearly head and shoulders above the others with respect to consolidating a democratic polity.