Independent or Dependent? Constitutional Courts in Divided Societies

Rights in Divided Societies (Hart Publishing, 2012) 89-123, C. Harvey & A. Schwartz, eds., 2012

35 Pages Posted: 18 Sep 2017

See all articles by Sujit Choudhry

Sujit Choudhry

Center for Constitutional Transitions; Center for Global Constitutionalism, WZB Berlin Social Science Center

Richard Stacey

University of Toronto, Faculty of Law

Date Written: 2012

Abstract

In ethnically divided societies – especially in post-conflict settings – there are two constitutional agendas regarding the design of the apex court charged with interpreting the bill of rights. On the one hand, there is the demand for judicial independence. A central justification for judicial independence is that it flows from the very idea of a bill of rights, which protects ethnic minorities from the tyranny of an ethnic majority. But in some divided societies, there is an attempt to institutionalize ethnic divisions in the design of the apex court itself. These two constitutional agendas are deeply in tension. The first seeks to render courts independent of political actors. The second seeks precisely the opposite: to ensure that individual judges are in effect representatives of particular ethnic groups.

Suggested Citation

Choudhry, Sujit and Stacey, Richard, Independent or Dependent? Constitutional Courts in Divided Societies (2012). Rights in Divided Societies (Hart Publishing, 2012) 89-123, C. Harvey & A. Schwartz, eds., 2012. Available at SSRN: https://ssrn.com/abstract=3026059

Sujit Choudhry (Contact Author)

Center for Constitutional Transitions ( email )

HOME PAGE: constitutionaltransitions.org

Center for Global Constitutionalism, WZB Berlin Social Science Center ( email )

Reichpietschufer 50
D-10785 Berlin, 10785
Germany

Richard Stacey

University of Toronto, Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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