1.1 Introduction

CHAPTER ONE TO DEFER OR TO DEFY: JUDICIAL CONTROL IN INSECURE ENVIRONMENTS All judges are politicians, whether they know it or not. --- Enrique Petracchi 1.1 Introduction When do judges rein in those who reign? In a given polity, the judiciary has the crucial task of rendering verdicts on disputes and social questions fairly; insensible to considerations of power and prestige. The courts are expected to subject even those who rule to the governance of rules (Fuller 1964; Shapiro 1981). However, those who have dominion over the state can employ a variety of weaponry to bend the gavel to their will: They can refuse to implement judicial rulings, cut the court’s jurisdiction, reduce the budget allotted to the court, impeach the magistrates or subject the judges to physical harm. These threats are particularly compelling in authoritarian societies where judges do not enjoy the institutional safeguards or the popular support that protect their counterparts in democratic polities. Thus, it becomes most relevant to ask: When do judges invalidate actions of government? Why do gavels defy the gun? The objective of this dissertation is to identify the conditions that enable the robe to overturn state action at the risk of incurring the wrath of the sword. The judicial literature has focused mostly on court behavior within highly developed democracies (Guarnieri and Pederzoli 2002; Koopmans 2003). In these polities, the courts 1 have emerged as powerful, independent actors in the public policy process. Empirical studies demonstrated that institutional protections like security of tenure and fiscal autonomy, as well as public support, have allowed judiciaries in developed societies to effectively constrain governmental behavior. Judges who are willing to limit state action, and political actors who abide with legal decisions, are the necessary elements for the existence and persistence of the “rule of law” (Segal 1997; Maravall and Przeworski 2003; Vanberg 2005). If judicial behavior is very much affected by the political context, it can be averred that it is harder for magistrates in authoritarian regimes to keep rulers in check. In this type of system, political and military power is usually concentrated in the hands of one person or organization (e.g. party or military). The monopoly of the apparatuses of coercion enables these rulers to impose their policy views and punish dissenters. Solomon (2006) contended that authoritarian structures and practices tend to “keep courts responsive to powerful interests and prevent judges from acting impartially in all cases” (p. 32). Thus, jurisprudence in these societies may be strategic, informed less by legal standards and more by considerations of the strength and interests of those in power. The intention of this research is to develop and test a comprehensive theory that can explain how courts are able to constrain those who hold state power in environments that are characterized by institutional insecurity. Studies of judicial negation in authoritarian polities are sparse (Moustafa 2003; Pereira 2005). This study seeks to make a contribution in a broader context. The existence of courts that can efficaciously constrain the exercise of state power is often taken as a sign of the existence of the “rule of law” (Neumann 1986; Tamanaha 2004). Is it possible for the “rule of law” to emerge in the context of authoritarian politics? It has also been demonstrated that 2 the economies of countries with independent courts tend to grow three times faster compared to countries with emasculated judiciaries (Scully 1988). This provides a motivation for dictators to grant their judges a “zone of autonomy” within which they can constrain predation by government officials and protect the economic right of investors. Interestingly, it has also been contended that economic growth is positively related to democratization (Lipset 1959; Diamond 1992). Thus, judicial negation is also relevant to broader questions of economic development and democratic transition. 1.2 Control, Costs, and Courts: Examining the Literature The paucity of empirical analyses of authoritarian systems is due to the pervasive belief that concentrated power severely constrains the ability of the courts to engage in countervailing action (Barros 2002, 14; Sartori 1962). “Autocracy cannot operate under a constitution,” said Loewenstein (1946), “and therefore as a rule dispenses with one" (p. 114). Within communist states for example, judicial decisions were expected to reflect the “will of the party” (Smithey and Ishiyama 2000, 8; Hartwig 1992). In the Soviet Union, a ruling against such “will” was usually not tolerated. Judges were checked in advance, and their superiors often contacted court officials as to how they should rule, a phenomenon referred to by Hendley (1996) as “telephone justice” (p. 25). Judges under dictatorships operate in an environment that is characterized by institutional and personal insecurity. Autocrats have a variety of means, both legal and extra- legal, to bend a judge to their will. Given the monopoly of political and military power in the hands of the autocrat, magistrates are not able to confidently rely on the protections afforded 3 to them by law. Their jobs are insecure, they can be ignored by the state, and threats to their safety proliferate. Judges can be physically threatened or intercepted on their way to work (Hendley 1996; Vejerano 1999). Bereft of the institutional protections enjoyed by their counterparts in advanced democracies, it becomes imperative for judicial actors to pay due heed to the preferences of other political players. Cooter and Ginsburg (1996) remarked that under authoritarianism, “politics is as important as the constitution” (p. 296). If judicial behavior is very much affected by its political context, then we would expect courts to behave differently in situations of concentrated power compared to those situations which were characterized by a separation of powers. A steady stream of works associated with the attitudinal model on judicial decision-making in the United States Supreme Court persuasively demonstrated that the institutional protections enjoyed by justices in the American context enable them to vote their sincere policy preferences (Spaeth 1995; Segal and Spaeth 1993, 2002). Segal (1997) provided strong evidence that the justices’ behavior in statutory interpretation cases is minimally affected by the preferences of the legislature. Thus, Helmke (2002) was to the point when she remarked that, “because such institutional protections are in short supply in many parts of the world, the separation of powers approach should prove particularly compelling for analyzing judicial behavior beyond the American context" (p. 291). However, it is worth noting that the so-called “strategic revolution” in judicial politics also emanated from studies done on developed democracies. Building upon a line of reasoning that was developed by Walter Murphy in Elements of Judicial Strategy (1964), Epstein and Knight (1998) developed the argument that judges consider the preferences of other political players. Epstein, Knight and Martin (2001) 4 provide empirical demonstration that American Supreme Court justices do vote their sincere preferences, but only under certain conditions. The results from Bergara, Richman and Spiller (2003) showed that justices are constrained by the possibility of legislative overrides in particular instances, even when one uses the data in Segal (1997). Within the comparative judicial politics subfield, several case studies have provided evidence that judiciaries in developed democracies have engaged in strategic behavior vis-à-vis the other branches of government (Koopmans 2003; Stone Sweet 2000; Vanberg 2005). What is currently needed is coherent theorizing about, and cross-national testing of, the variables that enable the courts to go against the preference of those who rule in non- democratic contexts. It is important to determine whether the contentions of the standard models (e.g. the attitudinal, legal, and strategic theories) that emanated from the study of developed democracies can “conceptually travel” to other regime settings. We must assess whether they can provide us with the analytical leverage for understanding judicial behavior in contexts that are characterized by power concentration and institutional insecurity. With their independence and impartiality unprotected by constitutionalism and the rule of law, judiciaries in non-democratic settings are considered to be regime legitimizers; limited to that of settling petty conflicts between individuals (Podgorecki 1986; Newberg 1995). Toharia (1975) made the contention that authoritarian leaders do not abolish the courts upon their ascent to power, unlike totalitarian rulers. They come to view the courts to be particularly useful in facilitating the return of societal relations to normalcy. Dictators also come to consider the judiciary as a very useful device for generating public acceptance of the new regime. Thus, despots tend to allow the courts to continue to function, while ensuring that they do not pose any challenge to the dictatorship. Autocrats, like Franco in 5 Spain, simply removed politically important cases from the ordinary courts, and channeled them to military tribunals. Franco allowed judges wide discretion in cases which were not sensitive to regime. Through the curtailment of the scope of the court’s jurisdiction, he was able to allow the courts considerable independence while

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