The Fuzzy Boundaries of (Un)constitutionality: Two Tales of Political Jurisprudence
Hirschl, Ran, University of Queensland Law Journal
Having studied comparative constitutional law for over fifteen years, one of the things that becomes strikingly apparent are attempts by courts to portray obvious political rulings as stemming from an established constitutional doctrine. In this short essay, I wish to discuss two such instances: one is a pair of rulings by the Supreme Court of Pakistan concerning the legitimacy of the Musharraf-led military coup d'etat of 1999, and later the ousting of Chief Justice Iftikhar Chaudhry by the Musharraf regime; (1) the other is a landmark ruling by Turkey's Constitutional Court concerning the supposed unconstitutionality of a constitutional amendment aimed at revising Turkey's militant secularist outlook. (2) The practical outcomes of each of these two episodes, contested as they may be, are certainly within the realm of reasonableness. It is the attempt by courts and judges to make an obviously political decision appear as if it logically flows from formal law and their invention of grand constitutional principles to support that appearance that make these decisions prime exhibits in the pantheon of poor legal decisions.
But first, a bit of theoretical context. one of the striking phenomena in late-20th and early-21st century government is the ever-increasing reliance on constitutional law and courts to deal with some of the most fundamental political quandaries a polity can contemplate. In the past two decades, the judicialization of politics worldwide has expanded its scope beyond flashy rights issues to encompass what we may term 'mega-politics'--matters of outright and utmost political significance that often define and divide whole polities. (3) Core political controversies are framed as predominantly constitutional ones, with the concomitant assumption that courts are the suitable forum to deal with them. The list of examples seems endless: the fate of the American presidency or national health care plan; what is the exact meaning of Israel's self-definition as a Jewish and democratic state; the legitimacy of the German bailout deal or the status of German sovereignty in the larger EU; the validity of Russia's war in Chechnya or accession to the WTO; the dollarization plan in Argentina; disqualification of political parties in Turkey, Belgium and Spain; the scope of Islamic law as a source of legislation in Egypt or Malaysia; whether sending Korean troops to Iraq is allowed; whether violation of term limits by incumbent leaders in Colombia, Uganda, or Venezuela is constitutional. In short, to paraphrase Alexis de Tocqueville's observation with respect to the United States, there is now hardly any political disagreement in the world of new constitutionalism that does not sooner or later become a landmark constitutional case.
Just as the judicialization of mega-politics appears inexorable, so is the politicization of the judiciary--the inevitable flip side of judicialization. The more politically significant courts become, the greater the likelihood pertinent political stakeholders will seek to influence or control judicial appointments and outcomes. In that respect, an overwhelming body of evidence suggests that extra-judicial factors play a key role in constitutional court decision-making patterns, in particular in politically significant cases. (4) Constitutional courts and judges may speak the language of legal doctrine but, consciously or not, their actual decision-making patterns are correlated with policy preferences and ideological and attitudinal tilts; (5) as well as appearing to reflect strategic considerations vis-a-vis their political surroundings, panel compositions, professional peers, or the public as whole. This can be explained by reference to the costs that judges as individuals or courts as institutions may incur as a result of adverse reactions to unwelcome decisions, or through the various benefits that they may acquire through the rendering of welcome ones. (6)
A case in point is the Supreme Court of Pakistan's appraisal of the very legitimacy of the Pervez Musharraf-led military coup d'etat of 1999. …