The Democratic Self-Defence of Constitutional Courts

Abstract

Courts around the world are under attack. They are being captured, packed, threatened, and their authority and powers are being limited by governments that seek to undermine the democratic constitutional order. Once courts are weakened or captured it is easier for these governments to undermine other democratic institutions and even use courts themselves against democracy. Accordingly, using the rational of ‘militant democracy’, this article proposes the theory of democratic self-defence of constitutional courts. According to this theory, constitutional courts (including apex courts with constitutional review powers) should declare the unconstitutionality of reforms on their institutional design when these are instrumental to a process of democratic decay. Not only that they should do so, but they must do so – as a duty – when the viability of the democratic system of government is at stake. The aim of this self-defence is not the self-interest preservation of institutional powers but the protection of democracy itself. In order to be able to protect democracy, courts must be able to protect themselves.

Keywords: Democracy, Courts, Legal Constitutionalism, Illiberalism, Democratic decay, Militant Democracy, Court Capture, Unconstitutional Constitutional Amendments