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35 - Guarantor (or the So-called “Fourth Branch”) Institutions

from Part III. A - The State

Published online by Cambridge University Press:  27 March 2025

Richard Bellamy
Affiliation:
University College London
Jeff King
Affiliation:
University College London
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Summary

Guarantor institutions (such as electoral commissions and anti-corruption watchdogs, which supposedly comprise the so-called ‘fourth’ or ‘integrity’ branch of the state) are increasingly of interest to constitutional scholars. In a given political context, a guarantor institution is a tailor-made constitutional institution, vested with material as well as expressive capacities, whose function is to provide a credible and enduring guarantee to a specific non-self-enforcing constitutional norm (or any aspect thereof). Arguing that guarantor institutions are more trustee-like than agent-like in character, this chapter defends the claim that the design of any guarantor institutions should seek to ensure that it has: (i) sufficient expertise and capacity to perform its functions effectively; (ii) sufficient independence from political, economic, or social actors with an interest in frustrating the relevant norm it is meant to guarantee; and (iii) sufficient accountability to bodies with an interest in upholding the relevant norm.

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Chapter
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Publisher: Cambridge University Press
Print publication year: 2025

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References

Recommended Reading

Ackerman, B. (2000). The New Separation of Powers. Harvard Law Review, 113 (3), 633729.CrossRefGoogle Scholar
Bhat, M. A. (2023). Between Trust and Democracy: The Election Commission of India and the Question of Constitutional Accountability. In Jhaveri, S., Khaitan, T. and Samararatne, D., eds, Constitutional Resilience Beyond Courts: Views from South Asia. London: Bloomsbury Publishing.Google Scholar
Brown, A. J. (2014). The Integrity Branch: A ‘System’, An ‘Industry’, Or a Sensible Emerging Fourth Arm of Government? In Groves, M., ed., Modern Administrative Law in Australia: Concepts and Context. Cambridge, UK: Cambridge University Press, pp. 301325.CrossRefGoogle Scholar
Elliot, B. (2019). Independent Regulatory and Oversight (Fourth Branch) Institutions. IDEA. Available at: www.idea.int/publications/catalogue/independent-regulatory-and-oversight-fourth-branch-institutions (Accessed: 4 January 2022).Google Scholar
Federal Data Protection Act (2017). (Germany).Google Scholar
Fombad, C. M. (2018). The Diffusion of South African-Style Institutions? A Study in Comparative Constitutionalism. In Dixon, R. and Roux, T., eds, Constitutional Triumphs, Constitutional Disappointments. Cambridge: Cambridge University Press, pp. 359387.CrossRefGoogle Scholar
Khaitan, T. (2021). Guarantor Institutions. Asian Journal of Comparative Law, 16 (S1), S40S59.CrossRefGoogle Scholar
Klug, H. (2019). Transformative Constitutions and the Role of Integrity Institutions in Tempering Power: The Case of Resistance to State Capture in Post-Apartheid South Africa. Buffalo Law Review, 67 (3), 701742.Google Scholar
Lokpal and Lokayuktas Act (2013) (India).Google Scholar
Pal, M. (2023). The South Asian Fourth Branch. In Jhaveri, S., Khaitan, T. and Samararatne, D., eds, Constitutional Resilience Beyond Courts: Views from South Asia. London: Bloomsbury Publishing.Google Scholar
Right to Information Act (2005). (India).Google Scholar
Samararatne, D. (2023). Sri Lanka’s Guarantor Branch. In Jhaveri, S., Khaitan, T. and Samararatne, D., eds, Constitutional Resilience Beyond Courts: Views from South Asia. London: Bloomsbury Publishing.Google Scholar
The Electoral Commission Act (1996) (South Africa).Google Scholar
Tushnet, M. (2021). The New Fourth Branch: Institutions for Protecting Constitutional Democracy, Cambridge: Cambridge University Press.CrossRefGoogle Scholar

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