Electoral Institutions, Political Competition and De Facto Judicial Independence by Vineeta Yadav, Bumba Mukherjee :: SSRN

Electoral Institutions, Political Competition and De Facto Judicial Independence

The importance of the judiciary in consolidating and sustaining a robust democracy and, an attractive business environment has led scholars to study the conditions which allow judiciaries to function with genuine or de facto independence. One of the most influential theories in the current literature argues that high levels of political competition, whether for office or among branches of government, create conditions supportive of high levels of de facto judicial independence (DFJI). However, comprehensive data over a 20-year period from 103 developing country democracies reveal a puzzle: under conditions of high political competition political elites in 56% of countries did indeed increase de facto judicial independence (DFJI) but fully 44% reduced the independence their judiciaries enjoyed. We explain this puzzle by arguing that in order to understand when political elites have incentives to support de facto judicial independence, it is essential to consider not just the effect of the magnitude but also the nature of political competition created by a country’s electoral institutions. Only in countries with electoral institutions which create high levels of electoral particularism do legislators and weak parties from both government and opposition have incentives to support DFJI when strategic time horizons shrink and, judges facing low risks and costs of political retaliation make a bid for DFJI. In countries with low levels of particularism however well-disciplined parties and their legislators do not find an independent judiciary attractive and, judges facing high political costs and certainty of retaliation choose to be subservient leading to low levels of DFJI. These claims are assessed using a comprehensive TSCS data of 103 developing countries observed as democracies anytime from 1985 to 2004. The statistical results corroborate our claims and remain robust when we control for alternative explanations, employ different estimation techniques, and use different measures of de facto judicial independence.