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Constitutional Democracy and Electoral Commissions: A Reflection from Asia
Published online by Cambridge University Press: 07 December 2021
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This symposium explores the role of “fourth branch” institutions, and specifically the role of independent electoral commissions (IECs) in protecting and promoting constitutional democracy. It does so by focusing on the global South, and Asia in particular. It aims to go beyond the “usual suspects” in comparative constitutional law, and put the constitutional experiences of countries such as Indonesia, Kenya, Myanmar, Malaysia, and Sri Lanka at the centre of a decolonized constitutional project and understanding, supplementing them with an examination of more-often-studied systems such as Australia and India.
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References
1 Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford University Press 2014).
2 For this idea of decolonizing the field, see, eg, Dinesha Samararatne, ‘Sri Lanka's First Election Commission: Strengthening Electoral Management or Advancing Electoral Integrity?’, this Special Issue.
3 For a comparative overview, see Helena Catt and others, Electoral Management Design (rev edn, International Institute for Democracy and Electoral Assistance (IDEA) 2014), and then cf IDEA, ‘Electoral Management Design Database’ <https://www.idea.int/data-tools/data/electoral-management-design>.
4 See Richard Stacey & Victoria Miyandazi, ‘Constituting and Regulating Democracy: Kenya's Electoral Commission and the Courts in the 2010s’, this Special Issue. See also Charles Fombad, ‘The Diffusion of South African -Style Institutions? A Study in Comparative Constitutionalism’ in Rosalind Dixon & Theunis Roux, Constitutional Triumphs, Constitutional Disappointments: A Critical Assessment of the 1996 South African Constitution's Local and International Influence (Cambridge University Press 2018); Heinz Klug, ‘Corruption, the Rule of Law and the Role of Independent Institutions’ in Rosalind Dixon & Theunis Roux, Constitutional Triumphs, Constitutional Disappointments: A Critical Assessment of the 1996 South African Constitution's Local and International Influence (Cambridge University Press 2018).
5 Malcolm Langford, Rebecca Schiel & Bruce M Wilson, ‘The Rise of Electoral Management Bodies: Diffusion and Effects’, this Special Issue.
6 Locke also identified another branch, which he called “federative”, and which was basically the venue for the domestic development of international relations. Although the federative function remains important, the idea that it is a separate branch has played almost no role in subsequent discussions of constitutional structure.
7 Notably, the Constitution of Iran creates a Guardian Council charged with ensuring that the other branches do not undermine the nation's fundamental Islamic character, thereby demonstrating that the function of constitutional preservation is a general one, not confined to constitutional democracies – though the latter is of primary interest here.
8 Rafael López-Pintor, Electoral Management Bodies as Institutions of Governance (Bureau for Development Policy, United Nations Development Programme 2000).
9 Whether other institutions should be included in the category, and if so which ones, also depends upon how we spell out the way in which parties can threaten government stability Auditing bodies aimed at ensuring that public money is spent for public purposes are probably the next most common fourth-branch institutions (and the oldest). Some constitutions include human rights monitoring agencies and ombuds offices in the fourth branch; the theoretical basis for doing so supplements concern about party domination with some questions about expertise. A recent innovation in fourth-branch “technology” is the inclusion of communications regulatory bodies. We note as well that central banks and environmental protection agencies can be treated as fourth-branch institutions if one has an account of party-based policy-making drawn, roughly speaking, from the “public choice” literature.
10 Tarunabh Khaitan, ‘Guarantor Institutions’, this Special Issue. See also Dixon, Rosalind & Landau, David, ‘Tiered Constitutional Design’ (2018) 86 George Washington Law Review 438Google Scholar; Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press 2019).
11 Paul Kildea & Sarah Murray, ‘Democratic Constitutions, Electoral Commissions and Legitimacy – The Example of Australia’, this Special Issue.
12 Langford, Schiel & Wilson (n 5).
13 ibid.
14 ibid. On the idea of electoral integrity, see Pippa Norris, Why Electoral Integrity Matters (Cambridge University Press 2014). See also Holly Ann Garnett, ‘Election Management’ in Pippa Norris & Alessandro Nai (eds), Election Watchdogs. Transparency, Accountability, Integrity (Oxford University Press 2017) 117–126.
15 On the idea of exogenous shocks in constitutional systems, see Theunis Roux, The Politico-Legal Dynamics of Judicial Review: A Comparative Analysis (Cambridge University Press 2018).
16 Levinson, Daryl J & Pildes, Richard H, ‘Separation of Parties, Not Powers’ (2006) 119 Harvard Law Review 2311Google Scholar.
17 Waldron, Jeremy, ‘The Core of the Case Against Judicial Review’ (2005) 115 Yale Law Journal 1346Google Scholar; Mark Tushnet, ‘Institutions for Protecting Constitutional Democracy: An Analytic Framework, with Special Reference to Electoral Management Bodies’, this Special Issue. But see also Rosalind Dixon, Democracy and Dysfunction: Towards a Responsive Theory of Judicial Review (forthcoming 2021) (arguing that under proportionality-based reasoning this is not necessarily the case).
18 Tushnet, ‘Institutions for Protecting Constitutional Democracy’ (n 17). See also Gardbaum, Stephen, ‘Are Strong Constitutional Courts Always a Good Thing for New Democracies’ (2014) 53 Columbian Journal of Transnational Law 285Google Scholar.
19 On the idea of constitutional collaboration, albeit more focused on the judicial-legislative relationship, see Aileen Kavanagh, Constitutional Review Under the UK Human Rights Act (Cambridge University Press 2009). On this more relational or engaged approach to constitutional decision-making, see also Cartabia, Marta, ‘Of Bridges and Walls: The Italian Style of Constitutional Adjudication’ (2016) 8 Italian Journal of Public Law 37Google Scholar; Dixon, Democracy and Dysfunction (n 17).
20 Tushnet, ‘Institutions for Protecting Constitutional Democracy’ (n 17). See also Khaitan, Tarunabh, ‘Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-state Fusion in India’ (2020) 14 Law and Ethics of Human Rights 49CrossRefGoogle Scholar; Pal, Michael, ‘Electoral Management Bodies as a Fourth Branch of Government’ (2016) 21 Review of Constitutional Studies 85Google Scholar.
21 Simon Butt & Fritz Siregar, ‘Multilayered Oversight: Electoral Administration in Indonesia’, this Special Issue, 121–135.
22 On insurance, see Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge University Press 2003); Rosalind Dixon & Tom Ginsburg, ‘The Forms and Limits of Constitutions as Political Insurance’ (2017) 15 International Journal of Constitutional Law 988. On the anti-capture argument, see David Landau, Constitutional Design and Democratic Resilience (forthcoming, Oxford University Press 2022).
23 Stacey & Miyadazi (n 4).
24 Waldron, Compare Jeremy, ‘Positivism and Legality: Hart's Equivocal Response to Fuller’ (2008) 83 New York University Law Review 1135Google Scholar.
25 For a more extensive exploration, see Toby S James, Comparative Electoral Management. Performance, Networks and Instruments (Routledge 2019).
26 Compare the role of ‘social structure’, ‘history’ and ‘biography’ identified in historical sociology: C Wright Mills, The Sociological Imagination (Oxford University Press 1959).
27 Langford, Schiel & Wilson (n 5) 60–83.
28 cf James (n 25).
29 Langford, Schiel & Wilson (n 5) 60–83.
30 Langford, Schiel & Wilson (n 5).
31 Samararatne (n 2).
32 Catherine Renshaw & Michael Lidauer, ‘The Union Election Commission of Myanmar 2010 – 2020’, this Special Issue, 155.
33 Dian A H Shah, ‘The Malaysian Election Commission: Navigating Electoral Authoritarianism and Political Change’, this Special Issue, 110–120.
34 ibid.
35 Butt & Siregar (n 21) 132 (“the importance of the KPU's compliance with Constitutional Court decisions cannot be overstated”).
36 ibid 129.
37 ibid. For broader confirmation of the positive interaction between IEC's and constitutional courts, see also Langford, Schiel & Wilson (n 5).
38 Michael Pal, ‘Constitutional Design of Electoral Governance in Federal States’, this Special Issue, 23–39.
39 ibid 31.
40 ibid. Myanmar is a clear counter-example: see Renshaw & Lidauer (n 32).
41 See eg the role of the Pennsylvania state electoral commission in the dispute over electoral irregularities in the 2020 US Presidential election.
42 M Moshim Alam Bhat, ‘Governing Democracy Outside the Law: India's Election Commission and the Challenge of Accountability’, this Special Issue, 85–104. Compare also Stacey & Miyandazi (n 4) (arguing for judicial deference only to regulative not constitutive decisions of IECs).
43 cf Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Bobbs-Merrill 1962). See also Landau, David & Dixon, Rosalind, ‘Abusive Judicial Review: Courts Against Democracy’ (2019) 53 UC Davis Law Review 1313Google Scholar.
44 Landau & Dixon (n 43).
45 Renshaw & Lidauer (n 32) 154–155.
46 Langford, Schiel & Wilson (n 5).