There are (at least) four key values or principles of democratic governance. These are: (1) effective and responsive government, (2) stable government, (3) accountable government, and (4) representative and deliberative legislative bodies. Given the trade-offs among them, democratic polities cannot achieve all of these values equally but they are expected to attain at least a “minimum core” of each and to aim at balancing or perhaps jointly optimizing them.

This goal faces both a general problem and a more specific contemporary one. The general, and long-standing, problem is the central role and importance of political parties in modern democracies. Because political parties and their leaders compete to occupy two of the major governance institutions (the executive and legislature) and exercise public power, they can concentrate such power where the same party controls both and also disperse it where it does not, regardless of the formal or constitutional relationship between these institutions.Footnote ¹ In this way, concentration of power threatens the values of continuously accountable government (i.e., not only at elections) and a genuinely deliberative legislature and, in so doing, increases the chances of various types of “misrule.”Footnote ² On the other hand, dispersal of power risks undermining the values of effective and (sometimes also) stable government. For this reason, we cannot think of state institutions alone in analyzing or designing systems of democratic governance.

This general background problem or complexity is exacerbated by specific features of the contemporary political party systems in many democracies today. Party systems should not only be thought about in terms of numbers – a single, dominant, two-party or multiparty system – or the type of political regime in which they operate – presidential versus parliamentary partiesFootnote ³ – but also in terms of certain pathologies to which they are vulnerable. So, whether and to what extent a political party system is polarized, fragmented, or subject to hyper-partisanship also affects the difficulty of balancing and reconciling the four values. Polarization and hyper-partisanship can render both effective and accountable government, as well as deliberative legislative processes, harder to achieve because there is less, or no, overlapping middle ground. A fragmented party system makes effective and stable government less likely, as it is more difficult to obtain and sustain a governing majority.Footnote ⁴ All three features undermine the political center and the types of consensus building and accommodation that tend to be important for the optimization of all four values. They also help to create the type of alienation from democratic politics “as usual” that has fueled various types of populism over the past decade.Footnote ⁵

Both the general and the special problems can and do arise in all democratic regime types, of which there are at least six (and not only three), depending on the combination of (a) form of government and (b) political party and electoral systems. These are two party/majoritarian presidential, parliamentary, and semi-presidential systems and multiparty/PR versions of each.Footnote ⁶ In all cases, the operation of both “ordinary” party politics and the special consequences of polarized, fragmented, and/or hyper partisan party politics complicates the task of balancing the four key values of democratic governance and skew polities toward either the fragmentation or the undue concentration of political power.

A recent strand within political science and constitutional scholarship has identified “semi-parliamentarism” as a new and alternative democratic regime type and also argued for its superiority to existing ones.Footnote ⁷ The precise nature of this claimed superiority (as well as some of the institutional details) varies somewhat among its main proponents and could also benefit from being further developed but, at least implicitly or in part, the claim is that it better balances the four values.Footnote ⁸ Semi-parliamentarism is presented as a distinct variation on two-party and multiparty parliamentary regimes. It is defined by the absence of the direct election of the chief executive and the existence of two directly elected and co-equal legislative chambers in which only the first can dismiss the cabinet in a no-confidence vote, while the second has veto power over legislation that cannot be overridden by an ordinary or absolute majority of the first. Importantly, its final key feature is the incorporation of different voting systems for each of the two chambers, to try and ensure that the governing party does not control both. Whereas for pure parliamentarism in either its two-party or multiparty versions, reconciling the first two values with the second two is notoriously difficult, it is potentially achievable with semi-parliamentarism.

I agree that semi-parliamentarism is a promising regime type. In this chapter, my primary aim is to explore whether the insights of its proponents can be adapted to suggest versions of non-parliamentary democratic regimes that better reconcile and optimize the four values and address the specific challenges of political party polarization, fragmentation, and hyper-partisanship. In other words, my focus is not on the question of which regime type is superior overall but rather on how to maximize the potential benefits of the semi-parliamentary model through ambitious, but not wholesale or root and branch, design reforms in the face of current democratic challenges. Pragmatically, given the well-known “stickiness” or path dependence of forms of government,Footnote ⁹ ruling out these potential benefits to the roughly two-thirds of non-parliamentary democratic polities seems like a waste. Specifically, I will argue that semi-parliamentarism’s core feature of “symmetrical” and “incongruent”Footnote ¹⁰ bicameralism is detachable from parliamentarism and that, with suitably customized modifications and reforms, is available in presidential and semi-presidential versions that may similarly reduce the contemporary pathologies of party systems and better balance the underlying values of democratic governance than existing regimes of these types. In so doing, all three adapted forms may also address some of the causes, and resist some of the consequences, of democratic backsliding in general and authoritarian populism in particular. The secondary aim of the chapter is to consider whether the design features of these versions that involve political parties and voting systems, rather than institutional powers and relations, should be constitutionalized and, if so, which.

9.1 The General and Special Problems That Political Parties Pose to Optimizing the Four Key Values of Democratic Governance

It is widely accepted that democratic governance seeks to promote at least four key values or principles. The first is effective and responsive government. Political parties and their leaders campaign during elections not simply to occupy public office but to offer voters a meaningful choice of policies on issues that matter to them that they will seek to put into effect if elected. This capacity to bridge, translate, and aggregate voters’ policy preferences into governing and legislative agendas is perhaps the central function and justification of political parties in a democracy.Footnote ¹¹ Being elected to power and obtaining the relevant majority support legitimizes one policy agenda over another and, ceteris paribus, this is what a democratic government is expected to act on: elections have consequences. The ability of a government to effectuate the policies for which it was elected, as well as deal with ongoing and unexpected issues as they arise, is the hallmark of a functional democratic polity; the inability to do so is a sign of dysfunction.Footnote ¹² The perceptions that democratic governments have been dysfunctional and/or more responsive to the interests of various elites than ordinary voters have, of course, been one of the main factors driving populisms of left and right over the past decade.

Government stability during the course of an election cycle is a second key value. Ongoing fragility or frequent turnover undermines the kind of mid-term planning that effectiveness requires and distracts voters and politicians by elevating office over policy. It also renders polities vulnerable in the face of new and unexpected crises that may arise. Obviously, too much stability is also problematic – if not always or necessarily inconsistent with democratic governanceFootnote ¹³ – as periodic (rather than frequent) turnover is another hallmark of a functional democratic polity. This, in turn, is partly driven by the third value of continuous governmental accountability, as without periodic turnover, party-state fusionFootnote ¹⁴ and entrenchment across all institutions risks impunity and the inability to meaningfully question those in power. Putting into practice this third value is one of the key functions of democratic legislatures, although it is shared with other actors, public and private, including free and independent media outlets. The other key function of democratic legislatures is to promote the fourth value, by directly representing a broader range of voters and political positions than the executive and bringing these to bear in inclusive and collective deliberation over legislative priorities and content.

These four values exist in some tension with each other and inevitably involve some trade-offs in practice, as no single democratic polity could maximize all of them. A realistic normative goal is rather to balance or jointly optimize them in a way that ensures at least a “minimum core” of each is achieved, even if certain polities afford greater weight to some than others. Indeed, each of the three widely adopted modern forms of democratic government can be thought of as designed to achieve such a balance, albeit with different emphases resulting from the particular allocation of powers and functions between the executive and legislative branches. As referenced in the introduction, the general problem is that these modern forms of government were designed (or evolved) in ways that focused only on institutional relations and either ignored or were openly hostile to political parties.Footnote ¹⁵ But the rise and role of modern political parties changes a great deal about how these forms operate in practice and complicates their actual ability to balance the values. And this general problem has been exacerbated in recent years by the particular nature of many party systems in democracies as polarized, hyper-partisan, and/or fragmented.

Starting with the general problem, institutions are occupied by leaders and representatives of political parties rather than by individuals per se, and this means that parties can effectively merge what is intended to be separate, as well as separate what is intended to be fused. This way in which parties can function like a sort of political holding company or conglomerate was well captured by Maurice Duverger in his classic work on the subject:

So, despite the classic British separation of power between King and Parliament, or its modern version between the King’s ministers in parliament and its ordinary members, as early as Bagehot it was recognized that the “efficient secret of the English Constitution” is “the close union, the nearly complete fusion of the executive and legislature powers” in the cabinet,Footnote ¹⁷ stemming from the existential need of the government to retain the confidence of parliament. With the subsequent introduction or evolution of modern political parties, party discipline, and control over their legislators, the effectiveness and stability of Westminster-style parliamentary governments was increasingly achieved at the expense of genuine accountability to, and deliberativeness of, the legislative body. But even where executive and legislative branches are designed to be more separated and independent than in modern parliamentary systems, where and when the same political party controls both, a broadly similar concentration of power occurs with analogous effects on the third and fourth values.Footnote ¹⁸ By contrast, where and when different parties control these two branches, or there is no majority party in the legislature, then accountability of the executive to the legislature and the latter’s independence to deliberate over proposed bills are often achieved at the expense of effective governance, due to the resulting gridlock and/or fragmentation of power.

This general background problem for reconciling the values of democratic governance is exacerbated by certain specific features of contemporary party systems. As referenced above, party systems should not only be categorized by the number of parties – single, dominant, two-party, multiparty, etc. – or by the regime they operate in – presidential versus parliamentary parties – but also by whether political parties are polarized, hyper-partisan, and/or fragmented. These are, obviously, distinct but overlapping pathologies. Although parties typically occupy different spaces on the relevant policy and ideological spectrum(s), polarization refers to a situation where the major parties or blocs are close to the opposite poles and far apart in their basic platforms and orientations, leaving the center of the spectrum relatively vacant. Hyper-partisanship generally references the way that parties and their supporters interact with, and treat, each other: do they engage in “hardball,” eschew cooperation and accommodation, act as if unconstrained by practical norms of bi-/multipartisanship, treat opponents as enemies or traitors, maximize the use of power for partisan ends. Although such hyper-partisanship is more likely to occur where polarization exists, it can happen without (for example, where one party breaks away from another, where the major parties cluster around a similar space on the spectrum and need to distinguish themselves, or where parties are personality rather than policy based) and need not happen with. A fragmented party system is one in which either (a) popular support is divided among several or many parties, without any one party or coalition of parties achieving majority or clear plurality support, or (b) such division takes place within, rather than between, the major parties.

These features of many contemporary democratic party systems are making the task of achieving and reconciling the four values significantly more difficult. Polarization and hyper-partisanship can render the task of forming and maintaining a government where no single party has a majority more complex and time-consuming, undermines the accountability and deliberative functions of the legislature where one party controls both branches, and makes gridlock worse during divided government. Fragmentation undermines effective and stable government, making it more difficult to obtain and sustain a governing majority and legitimate authority. Fragmentation and splintering of political power in general, and of party systems in particular, may currently be the most challenging problem bedeviling democracies around the world and has several causes.Footnote ¹⁹ These include alienation of ordinary voters from the mainstream center-left and center-right parties that have mostly governed since the end of World War II for a mix of economic and cultural reasons, a realignment of party politics away from the traditional left-right axis based on socio-economic position and educational level, and the communication revolution that has enabled new parties, individual politicians, and even single citizens to bypass traditional parties and media outlets to reach mass audiences via social media, etc.Footnote ²⁰

9.2 How the General and Special Problems Arise in All Widely Adopted Democratic Regime Types

Although the three basic and most common forms of democratic government were, in principle, intended to achieve and balance all four values, albeit in different ways, once the operative effects of electoral and party systems are taken into account, reconciliation is more difficult. Let us briefly see how and why for each of the six major democratic regime types, looking first at the “general problem” and then superimposing the contemporary special one.

In practice, the promotion and reconciliation of all four values has been hardest to achieve in parliamentary systems. In theory, as with the other forms, this is not so. The partial fusing of executive and legislative powers bolsters the effectiveness and stability of government, while still retaining full political accountability to a representative and deliberative legislature. But factoring in the impact of the electoral and party systems substantially changes the equation and balance. In two party, Westminster-style parliamentary systems resulting primarily from the majoritarian (and usually first past the post) voting system, effective and stable government is achieved at the expense of both genuine (as distinct from formal) political accountability to the legislature and inclusive, collective deliberation of the contents of legislative proposals. As indicated in the Duverger quotation above, this is due to the power and control of the typical governing (i.e., majority) party. Because of the necessary party discipline resulting from the “sink or swim together” political logic of the single election for both the executive and legislature, this regime type standardly concentrates power in the governing party, of which the prime minister is the leader, so that it typically controls the legislature through its majority. This, in turn, means that its survival is more or less assured (unless it acts in ways that cause a rebellion among its backbench members), political accountability is mostly reduced to somewhat theatrical exchanges with the official opposition party, and “government bills” that dominate the timetable are ordinarily steamrollered through the legislative process. This “ordinary” concentration of power in a majority party and its leadership (which has on occasion been referred to as an “elective dictatorship”)Footnote ²¹ has been extended and abused by authoritarian populist regimes in parliamentary systems, such as those led by Orban and Erdogan (pre-2017), to further consolidate and entrench their power by undermining all independent institutions and sources of power.

With recent fragmentations of party systems, and the resulting greater likelihood and experience of coalition or minority governments,Footnote ²² legislatures have become somewhat more independent of government control, leading to greater political accountability, representativeness (through the greater influence of smaller parties), and deliberation. But, as reflected in the chaotic period in the United Kingdom before Brexit occurred, this was very much at the expense of effective and stable government.

In other words, the United Kingdom at this time looked more like the second type of parliamentary regime, the multiparty one resulting from having a proportional representation election system. Here, and especially where there are not two blocs formed by allied parties, the traditional difficulty of reconciling the four values is the converse of the two-party version. Without a single majority party, effective and stable government can be difficult to achieve, in some cases notoriously so, but, on the other hand, the lesser concentration of power and its greater dispersal among parties may lead to a more independent and representative legislature with more scope for holding the executive accountable (including parties withdrawing support from a coalition government) and assembling ad hoc (rather than preordained) legislative majorities on particular bills. With polarization and/or fragmentation, the risks to effective and stable (coalition or minority) government are that much greater and the probabilities of ad hoc majorities for accountability or legislative purposes are smaller.

The presidential form of government, invented out of necessity in the United States, was designed to create effective and stable government through the direct electionFootnote ²³ of a legislatively irremovable single-person executive for a fixed term of office, while a separated, independent, and more representative legislature would engage in executive oversight and have the institutional freedom to exercise its major, legislative, function in a deliberative manner. Under majoritarian, two-party presidential systems, the reality has long been “separation of parties, not powers”: either a unified government where the same party controls both branches, with a high concentration of power and significant control of legislative outcomes, or a divided government with different parties in control of the two branches and the resulting risk of legislative gridlock.Footnote ²⁴ As with two-party parliamentary systems, which they resemble,Footnote ²⁵ unified presidential governments are often effective and stable but at the price of legislative accountability and deliberativeness. Divided governments are frequently ineffective, if stable, due to legislative paralysis, although oversight of (the often-increased reliance on) presidential unilateral authority is typically robust.

With polarized, hyper-partisan parties, the concerns about overly concentrated power in a unified government tend to be even greater, as bipartisan accommodation and restraints disappear, and the gridlock resulting from divided government is that much deeper and insurmountable. In this regime type, fragmentation tends to occur within, rather than between, parties so that even unified governments may be ineffective and unresponsive, as presidents find themselves unable to fulfill their legislative agendas due to internal opposition, as prominently recently in the first terms of Presidents Trump and Biden.

Apart from the United States and the Philippines, all other countries adopting pure presidentialism employ PR for legislative elections, as here the claims of representation that this voting system maximizes appear to trump the less relevant governance benefits of majoritarian systems. And yet such benefits turn out to be highly relevant as multiparty/PR presidential systems often suffer from the absence of a presidential party, or any party, majority in the legislature resulting sometimes in ad hoc support for presidentially sponsored bills in the absence of the more continuous coalitions needed to sustain the executive in parliamentary systems but sometimes in paralysis and ineffective government.Footnote ²⁶ This is one of the well-known recipes for the “Linzian nightmare”Footnote ²⁷ of presidential coups in Latin America and elsewhere. Although such ad hoc majority-building may suggest the potential for more independent, deliberative legislative processes and presidential oversight, achievement of these values is frequently undermined by weakly institutionalized, more personality-focused presidentialist parties, as compared with at least mainstream parliamentary ones. With fragmentation in particular, these particular pathologies of multiparty presidentialism tend to increase.

As the newest widely adopted form of democratic government,Footnote ²⁸ semi-presidentialism also in theory promotes all four values.Footnote ²⁹ A directly elected president who is not politically removable by the legislature ensures stability for the full length of the fixed term, even where the prime ministerial government that is fully accountable to parliament falls and changes beforehand. There are, as it were, two paths to effective government as either of the chief executives, or better both working together, can provide it. At the same time, having two chief executives produces less concentrated power than the “executive personalism”Footnote ³⁰ of the fully presidential model and, at least vis-a-vis the president, a more separated legislature to engage in both oversight and deliberation of executive legislative proposals.

As with the other forms, however, factoring in electoral and party systems often renders achievement and reconciliation of these value a more complex and difficult task. The two party/majoritarian version of semi-presidentialism risks the most highly concentrated political power of all, where the president’s party controls the legislature, for here a president is effectively (although not formally) also the head of a parliamentary party and government. In earlier work, I have referred to this possibility as “super-presidentialism.”Footnote ³¹ In this scenario, effective and stable government comes at an even higher cost in terms of accountability between elections and legislative deliberateness than in majoritarian parliamentary systems.

Where the prime minister is from the other major party, this resembles the situation in such parliamentary systems, with the exception that here, the effective leader of the opposition is the more powerful figure of the president. The timing of presidential and legislative elections, whether or not they are simultaneous, tends to be key to the probability of these two outcomes,Footnote ³² as it is with unified or divided government under pure presidentialism. With polarization, such “cohabitation” risks further undermining the effectiveness of this regime type,Footnote ³³ and fragmentation can leave even a newly elected president with reduced legitimacy,Footnote ³⁴ as well as heading an internally divided majority party, although the constraint of sustaining the parliamentary government means that these divisions are likely to play out less than in pure presidentialism. A Senator Manchin veto may doom a presidential legislative policy or nominee but not the party’s hold on governmental office itself.

Finally, multiparty semi-presidentialism raises a risk to effective government that the two-party version rarely does; namely, fragmentation of power to the extent that neither presidential nor prime ministerial authority can be sustained. This risk, which characterized the Weimar Republic for the final half of its existence,Footnote ³⁵ in a sense combines that of both other multiparty regime types. On the other hand, where this risk does not materialize and where the party system is more parliamentary than presidential in nature, legislatures may be in a better position to fulfill their accountability and deliberative functions. Again, polarization and hyper-partisanship may undermine the bases for necessary inter-party alliances and agreements, and the contemporary fragmentation of political power makes the risk of this regime type even greater.

9.3 Semi-parliamentarism

As noted above, parliamentary systems of both two-party and multiparty versions have traditionally found it hard to reconcile the four values, with each version prioritizing two different ones in ways that risk failing to achieve the “minimum core” of the other two. This is perhaps even more pronounced in the two-party, Westminster-style version because the normal majority party required for effective and stable government combined with the sink or swim political logic of the single election typically enables it to control and dominate the legislature and the legislative agenda. The resulting loss of genuine political accountability has been a major reason that many parliamentary systems have enhanced the legal accountability of government by establishing forms of judicial review for the first time.Footnote ³⁶

In the last few years, an alternative to the standard two types of parliamentary regime has been proposed that it is claimed better reconciles and optimizes the four values.Footnote ³⁷ This alternative has been labeled “semi-parliamentarism.” It is generally based on, although a modification of, the closest real-world examples, at both the national and state levels in Australia, and its main proponents have advanced a couple of different versions or sub-types. As stated above, the four defining components of this regime type are: (1) the absence of the direct election of the chief executive, (2) two directly elected legislative chambers, (3) only the first chamber can dismiss the cabinet in a no-confidence vote, and (4) both chambers have equal legislative power and exercise of the second chamber’s veto cannot be overridden by an ordinary or absolute majority of the first.Footnote ³⁸ In addition to these purely institutional arrangements, the key to the claimed advantage of this regime type in better reconciling the values is the requirement of different voting systems for the two chambers in an attempt to ensure that the same party does not control or have a majority in both: specifically, a majoritarian voting system for the first chamber, to promote effective and stable government, but a PR voting system for the second chamber, to promote accountability and legislative deliberativeness.

I find semi-parliamentarism to be an innovative and promising democratic regime type that has the potential to offer a superior version of parliamentarism to the two existing ones. Part of its merits are the internal resources it brings to bear for addressing the contemporary challenges of polarization, hyper-partisanship, and/or fragmentation that render the balancing of values more difficult. The composition and legislative powers of the second chamber create incentives for multipartisan, ad hoc, issue-specific negotiation and accommodation among represented parties that might temper polarization. In a sense, it also deals with the contemporary problem of fragmentation of power by both channeling and celebrating it. So, the attempt is to contain the inter-party version in the first chamber through a majoritarian voting system that over-rewards the two leading parties but to increase the number of parties (and so representation) in the second chamber through PR.

Among its principal expositors, Steffen Ganghof argues that semi-parliamentarism is clearly superior to presidentialism because it provides the same benefits of separated powers between the executive and (here, the second chamber of the) legislature but without the unnecessary costs of “executive personalism.”Footnote ³⁹ Although he is less clear or categorical about this, it also appears to be superior for him to both pure parliamentarism (because of the absence of separated powers) and semi-presidentialism (because most of the costs of executive personalism survive, in terms of a directly elected, irremovable chief executive, despite the existence of a second, parliamentary one).Footnote ⁴⁰ Tarunabh Khaitan also suggests that (his “moderated parliamentarism sub-type” of) semi-parliamentarism is superior to the alternatives because it “combines the most attractive elements of each” while still yielding a stable regime.Footnote ⁴¹ But he also makes the more modest claim that moderated parliamentarism is one way to optimize what he has identified as four constitutional principles relating to political parties,Footnote ⁴² as well as to balance governmental effectiveness and accountability.

For reasons of space, my aim here is not to discuss whether or not Ganghof’s arguments for the superiority of semi-parliamentarism over all three widely adopted forms of government are compelling. For what it is worth, I believe that his conception of the separation of powers is somewhat narrow and constrained; it seems to imply, for example, that pure parliamentary systems lack this value altogether.Footnote ⁴³ I also think the contrast between presidential and (modern) parliamentary systems in terms of the “executive personalism” of the former – that is, executive power being located in a single person versus a collectivity – is overdrawn in the modern era in which prime ministers are no longer simply “first among equals” and the office has become “presidentialized” in many countries.Footnote ⁴⁴ But I do think his work is insightful and illuminating, so much so that it is worth exploring whether the principles and institutional ingenuity of semi-parliamentarism are perhaps exportable to other regime types. Similarly, in terms of Khaitan’s (more modest) claim that his version of semi-parliamentarism is one way to reconcile effectiveness and accountability, I want to ask whether there might be other ways and, in particular, whether the insights of the semi-parliamentary model that he has helped to develop are capable of being adapted for other regime types. Moreover, would some of the inherent features of semi-parliamentarism that might reduce current party pathologies be exportable to these others? Are there any independent design features that might be helpful in this regard?

9.4 Does Semi-parliamentarism Suggest There May Be Ways to Better Balance the Four Values in Non-parliamentary Regimes?

As we have seen, from the perspective of optimizing the four values, semi-presidentialism and (even more) presidentialism tend to achieve stable government for the duration of the presidential term – at least, absent the “Linzian nightmare” scenario – but, depending on political party strength and alignment, risk significant underperforming on the others.

Starting with presidentialism, a bicameral legislature with the same equal powers and separate voting systems as under semi-parliamentarism would likely, with a few additional modifications, have similar potentially beneficial effects. Effective and responsive governance would be bolstered by more or less ensuring that the president’s party has a majority in the first chamber for the full duration of the president’s term. This could be achieved by combining (a) a majoritarian voting system with (b) simultaneous executive and first chamber legislative elections and (c) making the first chamber term the same as that of the president (for example, four years). Importantly, this latter feature obviously rules out midterm legislative elections that often create divided presidential government and gridlock. To the extent that ineffective and unresponsive government is driving the current alienation from the more mainstream or centrist parties, this would help to address the problem. Given the presidential party’s likely majority in the first chamber, a presidential legislative veto – as a check on a potentially hostile, runaway, or “all-powerful” legislature – is likely unnecessary,

As with semi-parliamentarism, PR elections for the second chamber will likely enhance multipartisan, and so potentially more effective, executive oversight and accountability, as well as overall legislative representation of voters’ preferences and the deliberativeness of legislative processes. With likely no presidential or any single party majority, the prospects of both rubber stamping and continuous institutional gridlock are much reduced and the incentives for multipartisan, ad hoc, issue specific negotiations and accommodations for presidentially sponsored (and other) bills greatly increased. PR thus appears to be key to the values-optimizing goals of an “incongruent” second chamber. Other institutional permutations, such as different (and possibly staggered) terms and being elected at a different time from the simultaneous presidential and first chamber elections, seem less central than under semi-parliamentarism itself,Footnote ⁴⁵ although certainly could be considered as potential supplements.

As for addressing and reducing the special problems, a number of inherent and possible additional features of such a regime hold promise. To push candidates away from the extremes and so reduce polarization (as well as increase responsiveness and representation), presidential elections should, as they do almost everywhere, require a direct national majority of voters. As the PR voting system for the second chamber is likely to result in the existence of more than two main political parties and presidential candidates, an instant or two-round run-off system would therefore need to be employed for presidential elections. Although not of course guaranteed, this increases the chances of an anti-polar majority at the second round, as we have now seen three times in France. The method of selecting party candidates for presidential (as well as legislative) office should similarly not reward more extreme or outlier positions, as, for example, the US system of party primaries can do by effectively bypassing both more knowledgeable party insiders and less motivated/partisan, ordinary party voters.Footnote ⁴⁶

At the legislative level, this type of presidential regime again inherently counters polarization and hyper-partisanship by reducing the risk of general gridlock and creating incentives for issue-specific coalitions engendering multipartisanship and accommodation. Additionally, in terms of the majoritarian voting system for the first chamber, ranked choice voting (or a run-off system) is to be preferred to first past the post, for, as a true majoritarian rather than plurality system, it increases the prospects of less extreme positions and candidates. Again, party primaries that tend to be dominated by more motivated, partisan, and extreme party members/voters are part of the current problem and should either not be the method of selection at all or replaced by a “top four”Footnote ⁴⁷ or equivalent method, to counter this effect. Independent redistricting commissions are also important, as having competitive general elections, rather than only primaries due to partisan gerrymandering, is key to reducing polarization.

In terms of fragmentation, again in a sense PR in the second chamber is designed to channel and reap its systemic benefits as compared with some of the costs of a two-party system that we have seen. If the risk or reality is of an overly fragmented second chamber exists, the common technique of capping it by employing voting thresholds for seats can be instituted. To the extent that the current fragmentation of parties and party authority is the result of the greater independence of legislative representatives stemming from the communications revolution and the potential for individual following and fundraising it has created,Footnote ⁴⁸ this independence could be reduced in at least two ways. First, a closed list PR system for the second chamber would make individuals more dependent on the party, for their ranking on the list, and in this way replace older, intra-party seniority control systems. Second, whether through law (where possible) or internal regulation, funding and campaign finance rules for all elective offices could also render politicians more dependent on party and less on their own, individual fundraising.

With semi-presidentialism, the goal of achieving greater optimization of the four values revolves around attempting to avoid both the undue concentration that occurs when a president is effectively also the head of a parliamentary government, as party leader and the undue fragmentation where no party or stable bloc has a legislative majority. Essentially the same set of institutions, powers, voting systems, and reforms as with presidentialism just discussed would increase the probability of such an intermediate outcome. With simultaneous first chamber and executive elections, same terms of office, and a majoritarian (preferably ranked choice or two round) voting system, the result is likely to be presidential control,Footnote ⁴⁹ but the key difference from the “super-presidential” scenario is the likely absence of a presidential, or any single, party majority in the directly elected and co-equal second chamber, where PR is employed. Combined with most of the other features and reforms discussed above for presidentialism, the potential result is to support effective and responsive government but without either undue concentration of power or built-in gridlock, enhance accountability to, and the representativeness of, the legislature, to create incentives for issue specific deliberation and accommodation across parties, and thereby also lower the risk of extreme fragmentation.

9.5 The Role of Constitutional Law

Democratic regime types are constituted by the combination of form of government (institutional powers and relations) and the operative voting and party system. This is why, for example, two-party and multiparty parliamentary systems are distinct types (or sub-types), generally furthering opposite values of democratic polities. It is a traditional blind spot of constitutional scholars to focus on the first part of the combination only, without the second. But a constitution should ordain and establish a regime type and not merely a form of government and so should presumptively include the key party and voting variables of the chosen type. Not only does this render it more difficult for elected officials to deliberately change or undermine a given democratic regime, but it also protects that regime from more unintended, serendipitous, or gradual alterations in its constituent parts.

As we have seen, the versions of presidentialism and semi-presidentialism that may better balance the four values and address some of the pathologies of contemporary party systems contain a distinctive set of institutional powers and relations that should presumptively be constitutionalized, as per the modern norm. To recap, these include direct national election of the president by a majority of the popular vote; two co-equal and directly elected legislative chambers, with the first having the same term as the president and a simultaneous or nearby election day, whereas members of the second chamber have different (and possible staggered) terms and/or are elected at a different time.

The key party/voting feature that is co-constitutive of these distinct democratic regime types is the employment of different voting systems for the two chambers, a majoritarian system – and preferably ranked choice voting – for the first, and PR – presumptively the closed-list variety – for the second. It is key, in significant part, because the respective party systems, two governing party contenders in the first house and multiparty in the second, largely follow from this choice. Accordingly, this should also be constitutionalized. Otherwise, depending in part on the legislative tie-breaker rule employed,Footnote ⁵⁰ it might be possible for the first chamber to repeal an ordinary statute PR requirement for the second. Given the design requirement of single-member constituencies for the first chamber, the polarizing possibility of artificially eliminating competitive general elections through partisan gerrymandering should be minimized by also enshrining independent districting commissions in the constitution. This would likely have a knock-on effect of reducing partisan incentives for holding party primaries that select more extreme candidates, so that constitutional regulation of parties in this regard may be unnecessary.

9.6 Conclusion

This chapter represents an initial exploration of the possibilities of incorporating variations of political party and electoral systems into constitutional design for the purpose of addressing the twin contemporary democratic challenges of fragmented and unduly concentrated political power. It generalizes from the insights of proponents of semi-parliamentarism to suggest that its core promising feature of “symmetrical and incongruent” bicameralism can usefully be adapted to create equivalent versions of presidentialism and semi-presidentialism. By seeking ways to render all types of democratic government more effective and responsive, the chapter aims to counter the fragmentation and dysfunction that is helping to drive the appeal of more polar political forces, including authoritarian populisms of left and right. At the same time, it also seeks to curb the overly concentrated power that single party (or alliance) control of executive and legislative branches risks. For not only does this undermine the democratic values of accountability and legislative deliberation, but such concentrated power has been exploited and abused in recent years by various authoritarian populist regimes, both those with and without clear electoral majorities. In these ways, the aim is also to address some of the causes and consequences of such regimes. Obviously much remains to be done in terms of filling in the details.

10.1 Introduction

After declaring independence in 1960, the people of Côte d’Ivoire have faced the legacy of a long and difficult struggle to achieve democratic self-rule. Impeding their path was thirty-plus years of single-party rule by President Félix Houphouët-Boigny, successful and failed coup attempts, and a bloody civil war that ripped the country apart along a north-south line. Against this fractious backdrop, the presidential election of 2010 pitted incumbent Laurent Gbagbo against his former minister Alassane Ouattara and other candidates. When a runoff between Gbagbo and Ouattara was called in the challenger’s favor (54.1 percent to 45.9 percent), Gbagbo appealed to the national Conseil constitutionnel, alleging fraud. The Conseil, a judicial body patterned on the French model, threw out 600,000 votes and declared Gbagbo the winner. This decision struck many impartial observers as fraudulent and counter democratic.Footnote ¹

A year later, the Awami League government of Bangladesh repealed the Thirteenth Amendment of that nation’s Constitution. This provision had created a system of non-party “caretaker” regimes prior to national elections, headed by a former chief justice, charged with the impartial management of polls. Under these caretaker regimes, Bangladesh experienced three elections (in 1996, 2001, and 2008) “widely lauded as free and fair.”Footnote ² The later polls in 2014 and 2018, without a caretaker regime, were marked not just by declining competitiveness and captured legislative bodies but also sharp increases in “legal and extralegal measures to silence critics, weaken the opposition, and create a culture of fear.”Footnote ³ In effect, the involvement of a judicial actor – albeit in a nontraditional, and arguably non-judicial role – allowed democracy to thrive.

In both Côte d’Ivoire and Bangladesh, an actor identified with the higher judiciary – either an apex court or its former chief – exercised a constitutionally defined power over the administration of national elections and parties. In the first case, judicial involvement arguably derailed fair democratic choice. In the second, a judicial actor’s involvement enabled a fairer measuring of popular judgment. At minimum, therefore, these cases caution against a rush to judgment for or against a robust judicial presence in the constitutional law of parties and elections. A global answer to this question quickly meets powerful counterexamples.

More modestly, this chapter explores theoretical and analytic foundations of these questions. It first aims to clarify some theoretical premises of this significant constitutional design choice. It then develops an analytic taxonomy of potential judicial tasks in managing elections with an eye toward democratic stability. This is complemented with an enumeration of potential risks. I make no claim that this theoretical and analytic ground-clearing yields sharp prescriptions about the role of courts in protecting democracies, although it does clarify the stakes of that functionality. This chapter offers, in the end, a crisper, less obstructed vantage upon the choices at play, rather than a decisive prescription.

Four other limits to the chapter’s scope need emphasis. First, I focus on the role of apex courts (broadly defined) in setting out basic ground rules for democratic choice. I do not address the interaction between ordinary litigation and election management. Almost any kind of jurisdiction can yield litigation that somehow “affects” an election. When a visiting session of the Lefortovo court sentenced the late Alexei Navalny to nine years’ imprisonment in March 2022 on fraud charges,Footnote ⁴ for example, it was clearly influencing the possibility of democratic competition in Russia – perhaps in deep ways that were not evident at the moment of judgment. But it was not defining or applying the ground rules for elections or parties as such.

Second, and relatedly, there are many other aspects of intergovernmental relations and legislative process that might be thought essential to a functioning democracy beyond elections and parties. Gardbaum, for example, rightly singles out the legislative failure to hold an executive accountable as a political-process failure.Footnote ⁵ Keeping with the more limited focus of this volume. I will home in more narrowly on the immediate accoutrements of democratic choice.

Third, I am concerned with courts’ function in democratic contexts, broadly defined to include some instances of competitive authoritarianism but not purely authoritarian ones. (The latter do run elections of a sort. And when de facto independent courts in non-democratic contexts are allowed, these do seem to mitigate the risk of illegal manipulation.)Footnote ⁶

Finally, I focus on constitutional, not statutory, rules and institutions. The last distinction is a touch artificial. Constitutions can be entrenched to greater or lesser extents than statutes. Entrenchment can vary within a single document, for instance, via targeted eternity clauses. Whole constitutions can be self-consciously styled as “temporary,”Footnote ⁷ just as institutions – think of Bangladesh’s caretaker governments – can be “intermittent.”Footnote ⁸ To assume a stable variation in the entrenchment of statutes and constitutions, therefore, is unjustified. My use of the term “constitutional,” therefore, should be understood to connote a relatively high degree of entrenchment compared to other state institutions in a given polity.

10.2 Theoretical Coordinates

What role should apex courts play in the constitutional law of elections and parties? Is theirs a function other bodies can serve equally well? And if there’s choice between courts and alternative constitutional institutions, what considerations should guide designers? In the first instance, these questions sound in constitutional theory, oriented to offer guidance on the different functions necessitated by a commitment to democracy. Often, constitutional theory implicitly adopts the position of an imaginary constitutional designer. It implicitly assumes that theoretical and empirical work can, in tandem, at least narrow the range of plausible design choices. What is “optimal” may depend heavily on political and economic context, so specific prescription can be infeasible. A minimal “Hippocratic” insight into the range of feasible options that “do no harm” may be the best normative constitutional theory can do.Footnote ⁹

It is a mistake to think that a democratic constitution must be composed solely of democratic parts. To the contrary, institutions insulated from partisan politics play necessary roles in fostering the persistence over time of democratic choice.Footnote ¹⁰ A polity in which police and election officials responded to every whim of elected actors would not be democratic very long. Recent work by Gardbaum and Khaitan builds on this basic premise. Both start from the Madisonian intuition that constitutions invest individuals with legal and political authority, which can be used to advance or undermine the structural presuppositions of future popular choice under a stable constitutional frame. Even if some policy choices inevitably commit future actors,Footnote ¹¹ a democratic constitution at least requires that electors retain the ability to change their minds at least about who is in power – although perhaps this is not alone enoughFootnote ¹² – so as to yield a tolerable measure of uncertainty and hence rotation of political office. To the extent it is conceptualized as intertemporally durable, democracy demands constraints at odds with elected actors’ incentives.

Gardbaum’s theory of “comparative political process theory” identifies the defense of “institutional structures and political processes within which democratic politics operates” from “erosion, corruption, and capture” as a distinctive design problem.Footnote ¹³ Echoing Hans Kelsen’s celebration of the judiciary as the “guardian” of constitutional norms,Footnote ¹⁴ Gardbaum isolates “judicial review” as the institutional vessel for that defense.Footnote ¹⁵ Khaitan echoes Gardbaum’s concern about the instability of non-self-executing constitutional norms. In contrast to Gardbaum’s focus upon courts, though, he posits a need for “guarantor institutions” (or “fourth branch” bodies) with legislative and executive functions. He criticizes the “lawyerly blinkers” that lead scholars to “ignore” actors other than judges. The latter have both expressive and also material capacity (which courts are said to lack). They act either before or after a constitutional norm is violated.Footnote ¹⁶ Khaitan’s point has empirical resonance: by 2019, some 64 percent of states had some kind of independently managed electoral system.Footnote ¹⁷

Written constitutions have in the last fifty years taken up both Gardbaum’s judicial path and Khaitan’s fourth-branch proposal. Figures 10.1 and 10.2 plot the percentage of constitutions in force at any given time that contain respectively, a court explicitly tasked to resolve election disputes, or some form of election management body.Footnote ^* They show how the adoption of courts preceded that of election commissions globally by about twenty years and, further, how neither model is obviously numerically dominant. The choice between courts and fourth-branch institutions (if imagined as a matter of substitutes and not as possible complements) hence remains a live one.

Figure 10.1 Percentage of extant constitutions with courts engaged in electoral supervision.

Figure 10.2 Percentage of extant constitutions with commissions engaged in electoral supervision.

Both accounts leave questions open. Gardbaum, for example, does not address the possibility, illustrated in the Côte d’Ivoire case, that courts can be instruments of entrenchment. It thus does not explain how to stymie judicial capture. Khaitan also invites inquiry into how to create institutions insulated from ordinary politics, how to maintain such insulation, and to how to respond in the event of capture. He further leaves open the question of whether (or which) guarantor institutions are “normatively desirable” at all.Footnote ¹⁸ If the Côte d’Ivoire case invites the thought that courts, acting alone, cannot alone be assumed to be faithful guardians in a Kelsenian mold, a different study of election commissions in four Central American countries paints a rather dismaying picture of slow decay and partisan capture.Footnote ¹⁹ More generally, a designer may be uncertain about the nature of future threats to democracy (which might bare differently on courts as opposed to commissions), the risk that political leaders will find ways to capture or subvert “guarantor” bodies, and her own ability to memorialize norms in ways that have consistent effect over time. Even as tremendous work has gone toward elucidating the forms of democratic failure writ large, in short, there is relatively little systematic work on how or why institutional guardians of democracy founder.

Current theoretical work further leaves open how to taxonomize the distinctive tasks involved in electoral guarantorship and the related puzzle of how to parcel out those tasks among different bodies. In part, this gap abides because there is no clear sense of what, quite specifically, “democratic maintenance” work on parties and elections involves. With a more fine-grained taxonomy of such tasks in hand, it may well be possible to discern whether and when institutional parallelism overlap, or even monopoly control by one body is desirable, or at least not a serious error.

10.3 A Taxonomy of Judicial Responsibilities Related to Elections and Parties

Keeping a system of competitive political parties and electoral choice in good working order is no simple matter. It requires attention to many different legal and constitutional mechanisms. There are many sharp corners during any representative process at which a hazardous and destabilizing political judgment can throw the democratic project off track. Election-related activity often begins when popular discontent with an incumbent regime bubbles over into oppositional associational action by the public. Parties are formed; old ones dissolve, merge, or reboot. Platforms are drafted, voters courted. Coalitions must be formed. Candidates or parties demand a line on a ballot. Voting happens, without or without irregularities. Counting follows, and an outcome is reached – or not. And so on and – one hopes – on, again and again: The promise of democracy resides in its endless capacity for iterative revision, of messing up, and starting again. From the ex ante perspective of the constitutional designer, a choice must be made about which of these diverse moments falls under constitutional regulation.

This section organized the heterogeneous range of such possible platforms for election regulation in a constitution into four broad categories. Setting these out, I avoid the assumption that each one must be subject to judicial supervision. Rather, there is a wide range of possible forms of choices about what to regulate and also how. Hence, a specific problem might be under a court’s supervision, regulated by a constitutional (or statutory) fourth-branch body, left without any regulation at all, or even insulated from state regulation via negative constitutional rights against the state. I bracket this choice of regulatory instruments and instead offer a taxonomy of moments in the democratic process in which judicial intervention can be imagined. A four-prong taxonomy, in my view, captures the range of potential issues in a tractable way. To the extent feasible, I illustrate this taxonomy with examples from outside the American context: The latter is relatively familiar and well-studied, and in many ways “exceptional.”Footnote ²⁰

a. Entry rules for voters, candidates and parties. Constitutional regimes for voters, candidates, and parties tend to point in different directions. Respecting voters, constitutions tend to be inclusive. Article 42 of the Ghanaian Constitution, for example, declares that “every citizen of Ghana of eighteen years of age or above and of sound mind has the right to vote and is entitled to be registered as a voter for the purposes of public elections and referenda.”Footnote ²¹ Until a 2012 Supreme Court decision, however, adult prisoners in Ghana were not permitted to vote. As in South Africa and Kenya, a constitutional judgment redrew the electorate’s boundaries to draw in the incarcerated.Footnote ²² By way of counterpoint, the Indian high court has invalidated a statutory prohibition that negated felon disenfranchisement only for legislators.Footnote ²³ The right to vote might also be implicated by practical hurdles, such as registration deadline, residency rules, and identification demands.

Voters are numerous and candidates, to some extent, replaceable. In contrast, parties tend to be fewer and far less fungible. As Schattschneider famously said, “political parties created democracy, and modern democracy is unthinkable without them.”Footnote ²⁴ So constitutional regulation of parties has higher stakes for democratic stability. The risks of both their regulation and their freedom are acute. One implication is the allocation of constitutional rights to associate to parties, which appear to have generally positive effects.Footnote ²⁵ Another is the possible prohibition of parties that would otherwise command meaningful public support. I focus on the latter here.

Starting with the German Basic Law, constitutions have included “militant democratic” party bans as prophylactics against anti-democratic political formations (as discussed at more length in the Introduction to this volume). Article 21(2) of Germany’s Basic Law, their locus classicus, flatly bans political parties that “seek to impair or abolish the free democratic basic order or endanger the existence of the Federal Republic of Germany.”Footnote ²⁶ A recent survey of legislative and constitutional party-ban provisions in Europe found around thirty-six examples, excluding prohibitions on parties on ideological grounds (65 percent), for violent activity (56 percent), as a means to protect the political order (44 percent), or for undemocratic internal party functioning (5 percent).Footnote ²⁷ These provisions are largely enforced by courts, which rely for evidence on parties’ platforms, leaders’ statements, and members’ activities.Footnote ²⁸ Administrative agencies play a larger role within individualized lustration regimes, addressed below.Footnote ²⁹ It is worth considering whether this forum choice influences the way in which democratic threats are evaluated. An administrative process, for example, might focus less on ostensible policy ambitions (courts’ core concern) and more on empirical evidence of, say, party linkages to foreign, anti-democratic forces (e.g., the Russian government) or paramilitary formations.

A variant on “militant democracy” bans is the use of rules setting a threshold, or floor, of votes before a party obtains any legislative representation. Thresholds of 3 to 5 percent are common in party-list proportional representation systems.Footnote ³⁰ In 1952, the German Bundesverfassungsgericht invalidated a Schleswig-Holstein law that imposed a 7 percent threshold, citing grounds of political equality and the need for a compelling justification for thresholds greater than 5 percent. It subsequently invalidated vote threshold rules that disfavored smaller parties from the former East Germany in the wake of reunification. The Bundestag responded by amending the election law to ameliorate the constitutionally flawed threshold rule.Footnote ³¹ The net result of these cases is that changes to Germany’s election framework that seem likely to fence out smaller parties receive close judicial scrutiny, at the same time as the basic law raises the specter of judicial exclusion. This implies a judgment that courts, and not legislatures alone, should manage party disqualification. Germany is not alone in this practice. In 1998, the apex court of Italy invalidated a threshold that disfavored the representation of linguistic minorities in the Trentino-Alto Adigo region.Footnote ³²

One reason to favor judicial settlement of individual and party bans is that such prohibitions implicate considerations of due process that are familiar to judges and well-suited to resolution by courts. The law is singling out a person or association for a handicap not imposed on similarly situated actors. Courts may be able to draw on deeper jurisprudential resources to elaborate fitting procedural safeguards and evidentiary thresholds. The existence of a familiar template for judicial involvement lowers the expected adoption and error costs associated with courts’ intervention. The same, however, may well not be true for challenges to vote thresholds – which instead implicate questions of judicial competence in respect to more synoptic judgments about election systems in the round.

b. Electoral system review. The cases concerning the validity of vote thresholds in proportional representation systems are a reminder that constitutional courts can exercise jurisdiction over abstract (otherwise known as “facial”) challenges to different elements of electoral systems. These cases present the question of conformity between a constitutional norm and the verbal contents of election law, bracketing any inquiry into how that law is applied on the ground. Generally, such challenges are adjudicated before an election. They seem less common than more specific charges of fraud or malfeasance in a particular election, a class of jurisprudence that I take up below. But the two categories obviously overlap.

A common question for review involves the carving up of a polity into geographic districts for representational purposes. In 1961, Ireland’s High Court struck down a districting plan characterized by “grave inequalities.”Footnote ³³ Between 1986 and 2010, France’s Conseil Constitutionnel invalidated several electoral districting statutes with large deviations from an equal population baseline. It twice instructed the French legislature to redraw all the nation’s districts.Footnote ³⁴ Other electoral system features can also be subject to judicial review. In 2008, for example, Indonesia’s Constitutional Court upheld a mandatory gender quota for party lists but invalidated a vote threshold for party-list candidates.Footnote ³⁵ In 2013, Italy’s Constitutional Court struck down a 2005 election law because it used closed party lists and assigned a majority party a “bonus” in seats. These features, reasoned the Court, violated Article I of Italy’s Constitution (popular sovereignty), Article 3 (equality before the law), Article 67 (representation as national, not local); and Article 48 (freedom of the vote). In an unusual further step, the Italian court issued a remedy in the form of a new, purely proportional, electoral system using a preference voting system. This system served the interest of neither party coalition. Their leaders Matteo Renzi and Silvio Berlusconi quickly negotiated an alternative scheme.Footnote ³⁶

Systemic challenges can also be lodged in international judicial bodies. Since 1986, the European Court of Human Rights has also permitted challenges to European law concerning elections to the European parliament.Footnote ³⁷ And in 2016, the African Court of Human and People’s Rights ordered Côte d’Ivoire to amend its electoral commission law to bring it into compliance with an impartiality principle in the African Charter on Democracy, Elections and Governance. The international court, though, stepped in only after a substantial challenge had been filed and rejected by the nation’s high court.Footnote ³⁸

A final relevant class of cases involves the legal environment in which elections are run. Constitutions might extend a positive constitutional protection to speech, spending, and conduct constituting a campaign. Alternatively, they can impose negative restraints on how and when campaigns are conducted. Litigation of such rights that yields judgments of general scope will shape the electoral environment. They may indirectly change outcomes, but the frequency and identity of outcome-dispositive voting rules is hard to evaluate.

c. Election integrity claims. Specific complaints about election integrity seem more common than abstract challenges. A “surprisingly large” number of elections are closely fought.Footnote ³⁹ Emotions are likely to run higher during such heated contests, with accusations of impropriety (or perhaps even its appearance) being more common. Across Anglophone democracies, moreover, partisan identification – both negative and also positive – appears to play an increasingly large role in national politics.Footnote ⁴⁰

The judicial reversal of a national election result on grounds of specific illegality or malfeasance seems rare. (The invalidation of subnational elections, by contrast, is more common, as Camby illustrates).Footnote ⁴¹ The example of Côte d’Ivoire’s 2010 poll seems exceptional, not illustrative. Hence, when presidential polls in Taiwan in March 2004 led to an incumbent victory by 0.22 percent, the loser sought and obtained a court-ordered recount that reduced, but did not flip, the margin of victory.Footnote ⁴² In 2013, the Kenyan Supreme Court declined to set aside Uhuru Kenyatta’s first-round victory in a presidential race against Raila Odinga.Footnote ⁴³ Four years later, in 2017, after yet another closely fought election between Kenyatta and Odinga, the same Court accepted the latter’s complaints of election irregularities, nullified the poll, and ordered fresh voting within sixty days. Because Odinga refused to participate in this second round – citing concerns about the election commission’s integrity – judicial intervention did not ultimately change the election’s outcome.Footnote ⁴⁴ In a variant on this dynamic, international courts in Africa, rather than their domestic counterparts, have been reviewing election disputes in Burkina Faso, Nigeria, Kenya, and Tanzania.Footnote ⁴⁵

The logical limit-case of these possibilities is Bangladesh’s caretaker government regime. Recall that this looked to a former chief justice to administer government during the run-up to an election.Footnote ⁴⁶ In effect, it assumed that the risk of illegal self-dealing by the incumbent government would be unacceptably large. Rather than adjudicate challenges after the fact, it imposed a blanket prophylactic remedy of control by judicial personnel. The judicial character of the caretaker regime, indeed, seems to have been important to its success.

Such widespread practice aside, there is also good reason to doubt that judges generally do a good job catching or preventing irregularities. A threshold reason is their lack of relevant expertise in recondite and technical matters of election administration. A second problem is impuissance. The path of the 2017 Kenyan election suggests that even when a court perceives irregularities, it may lack the political capital to force a change in election outcomes. The latter also illustrates the possibility of tension, even conflict, between a judiciary and a fourth branch institution with different views of a vote’s legality – a point to which I return below.

On the other hand, the power to consider specific allegations of fraud or malfeasance in respect to a particular election is distinct from the power to consider whether, in the abstract, a legal framework contained in statutes and regulations comports with constitutional norms. The two genres of litigation usually turn on different evidentiary grounds and demand different kinds of judicial competencies. The distinction between specific and abstract review, though, should not obscure a more profound connection between these two genres of litigation: A well-designed and well-functioning legal structure for parties and elections minimizes the opportunity for strategic action by powerful state actors intended to derail an anticipated electoral defeat. Post hoc judicial review of specific objections might usefully identify vulnerabilities in the electoral framework, providing the legislature with the information necessary to “patch” the system. Alternatively, such review might have a corrosive “moral hazard” effect: Elected officials know that they can appeal, after the fact, to the bench in cases where something goes awry. Ex ante, therefore, they have less urgent reasons to anticipate and fix vulnerabilities in an electoral system. The exercise of judicial review, which is often assumed to be the sine qua non of legality, hence creates a dynamic unravelling of the rule of law around elections. A possible way to mitigate the force of such incentive effects is the judicial use of a “penalty default” remedy. This is a judicial solution disfavored by all – perhaps akin to the Italian constitutional court’s ruling in 2013 – that forces hegemonic partisan actors to revise the election law rather than compete under an intolerable disposition.

Ginsburg and Elkins offer a more minimalist justification of the judicial role in settling close elections.Footnote ⁴⁷ Likening a closely contested election to the game-theory model of “chicken,” they posit that a judicial resolution can operate as a “self-enforcing focal point” that mitigates the risk of overt conflict even if it is not a particularly accurate factfinder. This role, they note, need not be played by a court; the latter is just a “convenient third-party [that] draws on the imagery of a neutral dispute resolver.”Footnote ⁴⁸ This logic, though, assumes a relatively narrow temporal focus on the moment after a close election. It does not account for the risk of strategic false claims by a likely loser that an election is closer than it really is: Again, the problem can be characterized in terms of moral hazard, with the risk of upstream strategic action rising as the expected accuracy of the third-party adjudicator decreases.

d. “Exit” rules for candidates and parties. Just as law can impose front-end hurdles to entering the political process so too can law create chutes for expelling individuals or groups that pose a threat to the democratic process. Democratic exclusion varies not only by whether it operates at a granular, individual level or a coarser group level but also whether it hinges on past “bad” conduct or a prediction of future harm. I have addressed party bans above because they can be thought of as ex ante barriers to participation. I hence focus on individual disqualification here because they commonly hinge on a finding of “bad” past action.

At one end of this spectrum is the familiar impeachment remedy. Almost all (90 percent) of constitutions with a presidency speak to impeachment. Crimes and constitutional violations are the most common bases for removal. A lower legislative chamber usually begins an impeachment by a supermajority vote, and ex post judicial review is often, albeit not always, available. Between 1990 and 2018, impeachment was proposed at least 210 times in 61 countries, against 128 different heads of state. But only ten removals were ultimately carried out, some of which involved judicial review of a legislative removal decision.Footnote ⁴⁹ Impeachment is not the only pathway for exclusion. Israeli courts have adopted an aggressive program of removing officials and blocking appointments based on a judge-made concept of “good character,” deeming officials ineligible from remaining in or holding office if currently under indictment.Footnote ⁵⁰ On the other side of the ledger, lustration rules might be subject to constitutional challenge rather than simply being enforced. In 2003, for instance, Indonesia’s Constitutional Court invalidated a prohibition on the election of Communist Party members.Footnote ⁵¹

Given their stakes, disqualification disputes unsurprisingly can spill into larger questions of institutional power. India provides an example. After the Allahabad High Court invalidated the election of Indira Gandhi on corruption-related grounds, the Indian parliament enacted a constitutional provision making election disputes involving the prime minister and speaker non-justiciable. In 1975, the Indian Supreme Court invalidated that amendment, citing its “basic structure” doctrine.Footnote ⁵² Hence, a discrete dispute about one politician become the basis for a more sweeping ruling about judicial power.

e. Summary. Apex courts are in practice involved in a wide range of election and party-related disputes. In some instances, they perform tasks assigned by a constitution (e.g., enforcing rights, resolving factual claims of irregularity, and disqualifying parties or candidates). At other times, they clarify the meaning of the organic law (e.g., in abstract challenges to the constitutionality of election-related provisions). A minimal conclusion from this survey is negative: Given the heterogeneity and numerosity of potential disputes, there is unlikely to be a single “right answer” to the question of when courts should be involved, or not, in the constitutional regulation of parties and polling. The world is too complex for a single, simple solution of that kind.

10.4 Institutional Choice in the Constitutional Supervision of Elections and Parties

If there is no “one size fits all” institutional choice covering all of these examples, the question arises whether there are reasons to assign some tasks to courts and some to fourth-branch bodies. The choice is nonbinary: Courts might be either substitutes or complements for fourth-branch bodies, such as election commissions. Indeed, as Figure 10.3 shows, a nontrivial number of constitutions contain both election-specific judicial powers and also an election commission. This overlap creates the possibility of both cooperation and conflict.

Figure 10.3 Proportion of extant constitutions with both judicial and fourth-branch electoral bodies.

The case studies discussed above push in different directions as to this choice. The Côte d’Ivoire example points toward skepticism about courts and hence an emphasis on nonjudicial bodies. In South Africa, the Constitutional Court and the Public Protector have worked in tandem in respect to high-level corruption relevant to the potential disqualification of the prime minister.Footnote ⁵³ Or an election commission might be subject to judicial oversight, as was the case in Kenya in 2017. That oversight can be intense or mild. In Taiwan, for example, courts “respect[] the regulatory authority” of the Election Commission by deferring to its judgment.Footnote ⁵⁴ The Bangladesh example further hints that judicial actors can be embedded within an election management infrastructure to sustain constitutional norms. There is, in short, a quite wide array of potential relationships between courts and other bodies: cooperative, adversarial, entangled, or dominating.

There is good reason for resisting a strong presumption in favor of courts or fourth-branch bodies. To see this, consider three obstacles confronted by any constitutional body charged with maintaining democratic hygiene in and around elections: All three afflict both courts and non-judicial bodies in roughly equal measure. First, an institution with sufficient insulation from contemporaneous partisan pressures must get off the ground. Not only must that institution be designed with robust insulation from the very beginning, but that design feature must prove enduringly effective. The initial constitutional design of either a judicial or a fourth-branch body can be flawed. In a study of election management bodies, Michael Pal identifies gaps in their organic documents that facilitate capture.Footnote ⁵⁵ Similarly, the American federal judiciary was designed with two assumptions in mind: that the nation’s Senate would be a nonpartisan body and that the supply of potential judges would be limited enough that selection could not be used to partisan ends. Both assumptions faltered within a decade of ratification. As a result, the American system for appointing federal judges is directly partisan, and partisan projects infuse the operation of the national judiciary.Footnote ⁵⁶ One sort of democratic success, that is, engendered a different kind of democracy-related failure in another element of the Constitution.

Good design requires constitutional founders who eschew a partisan cast of mind and who are capable of anticipating evolving and as-yet unanticipated strains on the democratic process. Obviously, these won’t always be to hand. Perhaps the most obvious circumstances in which good design will come to the fore arise after a widely maligned (e.g., a fascist or apartheid) regime has collapsed, and there is intense public and geopolitical pressure for a fresh start.

Second, even a well-designed court or fourth-branch body institution can be subject to overweening informal (or illegal) pressures that compromises their good operation. For the past three decades, the Indian judiciary has exercised almost complete control over the formal processes for appointments to the higher bench. This insulates it from direct partisan pressure. The Supreme Court, indeed, invalidated a 2014 statute creating a National Judicial Appointments Commission. Yet the judiciary has recently turned a “blind eye” to controversial steps by the Bharatiya Janata Party (BNP) of Prime Minister Narenda Modi, such as a controversial campaign finance law, extrajudicial detentions in Jammu and Kashmir, and the construction of a Hindu temple on the site of the Babri Masjid. Judicial quiescence appears to be the result of “subtle” administrative measures, such as slow-walking promotions and background checks and resisting calls for better funding.Footnote ⁵⁷ More troubling allegations of corruption on the part of a new chief justice and blackmail by the BNP suggest that even most robust legal defenses of institutional independence might be vulnerable to circumvention by sufficiently unscrupulous political operatives.Footnote ⁵⁸ Similarly, Zambian Chief Justice Mathew Ngulube was forced to resign in 2002 after it was found out that he had received bribes from incumbent President Fredrick Chiluba while deliberating on an election-related petition.Footnote ⁵⁹ Where an incumbent resorts to extralegal measures to undermine democratic choice, the institutional choice between guardianship bodies will have limited salvific effect. What is more important is the strength of the larger supervisory regime of criminal law pertaining to political corruption.

It is not clear whether courts or fourth-branch bodies can best resist this pressure. TushnetFootnote ⁶⁰ has suggested that the modal adjudicative tasks of an apex court often force it to take positions that have inescapable partisan connotations. Tasking judges with election-related dispute resolution may amplify the risk they will be tarred as “party-political”.Footnote ⁶¹ And Tushnet’s concern clearly extends, as he recognizes, to fourth branch institutions. And it may be that apex courts are more vulnerable because their ordinary docket has high political stakes. Or it might be that an apex court has a sufficiently large load of non-partisan-coded cases that it has a greater capacity to absorb or deflect “party-political” criticism. It is hard to know which way this consideration cuts in advance.

Third, it is well known that a verbal specification of a norm may be an imperfect proxy for an underlying constitutional value. Over time, a specific formulation may do an increasingly bad job of tracking that value. A more general verbal formulation, in contrast, may require new judgments over time as to how best to apply it across new and different circumstances over time. The negative right to speak free of governmental coercion, for example, is plausibly thought to be necessary to a well-functioning democracy. But that negative right may become increasingly irrelevant if it is possible for government to crowd or drown out critical, adversarial speech.Footnote ⁶² As a result, a court or guarantor institution tasked with maintaining a healthy democratic public sphere must revise radically how “democratic debate” is realized to avoid obsolescence at the hands of new digital media technologies. Again, a potentially paradoxical dynamic can be traced: A court that has successfully defended a negative-rights account of the democratic sphere may be so beholden to that history, intellectually or as a matter of institutional pride, that it is unable to recognize a decisive evolution in the sociopolitical environment. Blinded by success, it is driven to failure.Footnote ⁶³

There is, in short, a complex blend of countervailing pressures at play across a range of constitutional design decisions. It is, in particular, difficult to see an overwhelming case for either courts or fourth-branch bodies. Both courts and non-judicial bodies are vulnerable to threshold design flaws and illegal influence. Perhaps the longer historical pedigree of judicial independence offers a more secure psychological and social foundation for resisting drift and corruption; or perhaps the bien-pensant myth of judges who stand above the fray makes their partisan allegiance more difficult to discern and critique. In respect to the third concern raised above, it is easy (but probably wrong) to assume that courts are worse than legislative or executive bodies at updating principles’ legal entailments under new circumstances. The Canadian Charter of Rights and Freedom has famously been viewed as a “living tree,” capable of fruitful adaption to new environments.Footnote ⁶⁴ Max Weber’s idea that bureaucracy can be hindered by an “iron cage” of rigid doxa and habit has grown into cliché – but holds more than a grain of truth. The dominance of either “living tree” or “originalist” metaphors in the high-level legal culture of a polity may have a greater impact than the abstract choice between judge and bureaucrat.

To the extent that even a rough cut at the question of institutional choice is appropriate, Tushnet’s suggestion that overlapping guarantor institutions may well be ex ante desirable seems a good starting point.Footnote ⁶⁵ Rather than trying to read the tea leaves to discern the political future, a designer might write in multiple, seemingly redundant bodies so that at least one does not fail when confronted by an unexpected challenge.Footnote ⁶⁶ Yet even this guidance requires caveats: Where particularized election disputes are concerned, a plurality of forums for contesting an outcome may induce forum-shopping, inconsistent judgments, and even outright conflict because of the lack of a focal-point resolution.Footnote ⁶⁷ Where an election-related dispute requires a quick answer therefore – usually because operative power hangs in the balance – it is likely better to avoid overlap and second-guessing. Perhaps this will lead to a higher rate of erroneous decision-making, but that may be better than a higher-rate of election-related conflicts.

10.5 Conclusion

Apex judiciaries have played a significant part in administering elections in many jurisdictions. Success stories as well as cautionary tales abound. To an extent, the courts are likely capable of being replaced by fourth-branch bodies. But the design of the latter raises many of the same questions about “independence” as a judiciary’s design. Reinventing the wheel might do little to improve the quality of democracy. For this reason, there may be some small reason to prefer courts in a jurisdiction where de facto judicial independence has been achieved, and more reason to look to fourth-branch institutions where that public good remains an elusive and unrealized goal.

11.1 Introduction

There are hundreds of self-governing tribes in the United States. Not all are democracies. Not all have constitutions. But because of cultural and colonial forces, the constitutional democracy is undoubtedly the most common form of tribal government. The constitutional provisions that structure the democracies of American Indian tribes are not only strikingly different from one another, they are by in large far more in flux than the constitutions of United States federal and state governments that colonized them. Within their constitutional structures, tribes are trying out different representative structures, different qualifications for their elected leaders, different restrictions on the right to vote, different practices for voting, and granting different parts of their governments the power to oversee elections.

As this chapter will discuss, many tribes are dynamically remolding their constitutional structures. In doing so they are demonstrating what I suggest is a notably high tolerance for reform or failures that catalyze reform. Nowhere is this dynamism more on display than in the different ways that tribes now politically order themselves – in the reshaping and restructuring of their representative democratic institutions. The takeaway from this chapter is that these tribal governments are carefully experimenting with democracy and that they view the need for institutional change as a moment of growth rather than a failure in their practice of self-government. Reforms have become an almost natural – if not celebrated – part of perfecting their government structure.

Part of this story of different attitudes to constitutional change is undoubtedly tied to complex origins of many tribal constitutions as well as a humility about the role of law and institutions within the identity of a nation. The two tribes profiled in this chapter demonstrate how tribes have survived and avoided democratic crises – not by having constitutional structures that are durable but by having constitutional cultures that accept the need for change and value resilience.

11.2 Uninspiring Constitutional Origins Stories

With a few exceptions,Footnote ¹ the hundreds of self-governance documents that are tribal constitutions began as post-contact creations, written under complex political circumstances often involving varying degrees of pressure, or even oversight from the United States. Most prominently, under the Indian Reorganization Act (IRA) of 1934, Indian tribes were encouraged to adopt, by majority vote, written constitutions that were generally reminiscent of the US federal constitution.Footnote ² The IRA not only made it clear that adopting tribal constitutions was the clear policy preference of the United States but also created an incentive for tribal governments to adopt a constitution: power.

The IRA specified that: “In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest in such tribe or its tribal council the following rights and powers: To employ legal counsel; to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local governments.”Footnote ³ While the right to retain counsel and negotiate with other governments were arguably rights that tribes already had or were exercising, the right to prevent the further sale of their lands without their consent loomed large against the backdrop of recent federal policies that resulted in the dramatic loss of tribal lands. Ultimately, 181 tribes accepted the IRA, while 77 rejected it.Footnote ⁴ Today, around 60 percent of the 574 federally recognized Indian tribes have a constitutional system with origins in the IRA.Footnote ⁵

Some tribes who did not adopt IRA constitutions nevertheless adopted written constitutions as a result of efforts from within the tribe to transform their government systems. This, of course, did not happen in a vacuum. The pressures of American colonialism and norms of American democracy had a tremendous effect on tribal decision-making. Some tribes chose American-style constitutional democracies more out of a desire to win favor or approval from the United States than out of genuine admiration for the system or a belief that it was best suited to their project of self-governance. For that reason, even tribes that seemed to have independently chosen constitutional democracies often harbored seeds of structural instability or doubts about the suitability of their constitutions for their own people.Footnote ⁶ Many tribal governments’ initial constitutions were not an accurate, or even workable, expression of a tribe’s political culture or priorities.Footnote ⁷ That is why the wave of tribal constitutional reforms in the last fifty years is both expected and vital.Footnote ⁸

Because of these initial circumstances surrounding the adoption of their written constitutions, constitutional reform has become a highly conscientious reckoning for tribes. A reckoning about their past, present, and future identity as Nations.Footnote ⁹ Many, if not most all of these tribes fit the description of postcolonial constitutionalism developed to describe the experience of many other newly independent nations in Africa and Asia who adopted nominal constitutions that largely reflected the constitutional order of their former colonizer and then entered into “a dialectical process involving an ongoing struggle between absorption and rejection of the former colonizer’s” institutions, political culture, and identity.Footnote ¹⁰

What the constitutional design and reform process of American Indian tribal governments brings to the fore, however, is just how important and transformative the dialectical process itself is for political communities who are struggling not only with their relationships to their colonial past (and present), but with their connections to their precolonial past and the character of their hopes for a postcolonial future. Telling a story of political and cultural continuity throughout all these changes is a vital part of what holds these nations together. There is no sense that tribes have failed as nations if they did not get it right the first time or need to revisit their constitutional structure. Tribal political identities and pride in their self-governance persist despite moments where it was clear that their current government structure was failing them. Instead, there is comfort with recognizing and accepting the need for change – a comfort that has made them remarkably resilient.

The source of this comfort is no mystery. It developed as a reaction to the number of forced changes that tribal governments have experienced already and will undoubtedly continue to experience going forward. Throughout all these changes, these tribes describe their nations as political survivors. These reforms are not simply questions of what form of political ordering can best safeguard rights or express the interests of the people but who the people are now compared to who they were and who they hope to become.Footnote ¹¹ No matter what path they choose, the narrative of continuity and survival in the face of change is an animating part of the tribal constitutional reform process. Even when the underlying reforms are quite drastic and could be characterized as re-foundings, they are, importantly, not viewed as such.

11.3 Stories of Reform

The remainder of this chapter showcases two examples of tribal constitutional reform concerning democratic rights and orderings and how the constitutional culture of continuity I described above got them through the democratic reform process, including constitutional crises provoked by factionalism. It presents how these tribes – the Cherokee Nation and the Citizen Potawatomi Nation – have remade the structure of their democratic institutions from the laws delineating citizenship, voting, and office holding to the configuration of their representative institutions themselves.Footnote ¹² Specifically, it describes how both tribes pulled themselves out of periods of democratic crisis by reforming their constitutions.

These two tribes have notable differences. While they are both presently located in Oklahoma, they are originally from very different parts of the United States and had quite different precolonial political cultures. They are very different sizes – Citizen Potawatomi has approximately 37,000 citizens,Footnote ¹³ while Cherokee Nation has 430,000 citizens.Footnote ¹⁴ Although both are constitutional democracies today, Cherokee Nation became one long before the IRA, while Citizen Potawatomi is an IRA tribe.

11.4 Conclusion

The choices that the two tribes have made reveals the strange boon that the chaos of colonialism has been for them. There have been countless disruptions or interference with their ability to freely self-govern, and yet, the tribe’s political identity and will to self-govern persisted. The undeniable limitations and even outright failings of some of their governing documents allows for tribal constitutional reform efforts to not only be easier to achieve but seems to have allowed for tribes to think more creatively about their reforms than they would have if they were more strictly wedded to their prior version of democratic ordering. This complex postcolonial dialectic of institution building through constitutional reordering seems to be, in short, liberating for tribes who can contemplate and implement creative solutions to even their most basic political orderings problems.

The constitutional structure of representation and elections, in other words, has become one of the most important sites for American Indian tribal nations to set the boundaries and substance of their identities as nations. As Citizen Potowatomi Chairman Barrett puts it: “If you’re not in the constitution-fixing business, you’re not in economic development, you’re not in self-governance; you’re not sovereign.”Footnote ¹⁰⁷ And as Cherokee Nation Principal Chief Hoskin describes, the resilience of tribal governments is a key part of their identity as nations: “We were torn apart politically; our economy was destroyed, [and y]ou would predict it would take decades or generations to come back if they ever did. But what happened next is I think is one of the most remarkable stories in the history … of this country and the world. We rebuilt within about a decade. We invested in a system of law and justice. We have to remember, and we have to remind people … what the Indian nations have gone through.”Footnote ¹⁰⁸

A key takeaway from these experiences, is the value of seeing the usefulness of failure – even in a democracy or a constitution – and the durability of the commitment to self-governance as a continual process rather than a singular ideal that can be perfected and captured in a single document.

Whether in the ‘old’ key of militant democracy or in the newer one of democratic backsliding, the question of how constitutions can insulate against the erosion of democratic institutions remains ever fresh. Much has changed in this landscape, however. Experiences with populists in power and authoritarian takeovers the world over have cast doubt on long-standing certainties. The faith in courts and constitutional review as preeminent tools of legal protection of democracy and fundamental rights has been shaken by the reality of captured courts and eroded judicial independence. With it, too, the belief that detailed constitutional bills of rights would reign in arbitrary power.

The search for legal institutions to uphold and strengthen democracy’s foundations has instead turned to other horizons. One of these, explored in this chapter, is the turn to eternity clauses and the prospect that constitutional unamendability could act as a stronger barrier against democratic erosion through otherwise legal means. The hope is a familiar one: that when faced with procedurally legitimate constitutional amendments that undermine or even ‘dismember’ the constitution, substantive hurdles should remain in place that sanction these amendments as illegitimate and unconstitutional.Footnote ¹ We saw this hope raised and swiftly dashed in Hungary after the Orban government embarked on constitutional change to entrench its hold on power and before the disempowerment of the Hungarian Constitutional Court. During that period, some hoped the Court would embrace an unconstitutional constitutional amendment doctrine to allow it to prevent, delay, or at least signal the authoritarian takeover veiled in legality.Footnote ² More recently, we witnessed Kenyan courts embrace the idea of substantive limits on constitutional amendment and even consider embracing a basic structure doctrine to block the president-initiated Building Bridges Initiative (BBI) package that would have transformed the Kenyan Constitution.Footnote ³ We have also seen calls for the unconstitutional constitutional amendment doctrine itself to be adapted to the realities of our populist/authoritarian times, such as by renouncing judicial self-restraint in reviewing amendments and adopting a more holistic interpretation of their cumulative effects.Footnote ⁴

Doubts have remained, however, including expressed by this author, as to whether unamendability is indeed the answer to democratic backsliding, or whether it is itself salvageable from the clutches of populists and authoritarians in power.Footnote ⁵ That scepticism has been grounded in the ambivalent operation of unamendability in practice, whether as a bargaining tool during constitution-making processes or when enforced judicially. This reality includes the propensity of eternity clauses to entrench partisan hold on power as well as to essentialise political identity. As we will see, this ties into the complex relationship between eternity clauses and electoral democracy. The tension between unamendability and democracy has of course received ample attention. Comparatively underexplored has been the particular type of democracy eternity clauses seek to protect, how that relates to the specific constitutional context in which they are adopted, and how this more specific understanding of democracy influences the unconstitutional constitutional amendment doctrines developed by local courts. In particular, the relationship between unamendable democratic commitments and the electoral arena is ripe for close examination.

This chapter seeks to fill this gap. It explores the link between eternity clauses and electoral democracy by looking at two instances of applied unamendable democracy: party bans, whether direct or indirect, and the protection of parliamentary mandates. Both types of interventions are operated in the name of guarding democracy, whether against anti-democratic forces, as in the case of party bans, or against weakening core democratic institutions, as in the case of parliamentary mandates. These two approaches are illustrated via a range of case studies: the ban of anti-democratic parties in Germany; bans of ethnic, separatist, and religious parties in Turkey; indirect unamendability and its chilling effect on party competition in Israel; and the judicial protection of parliamentary mandates as unamendable in Czechia. These are indeed meant to be illustrations of the problems I discuss, rather than to be taken as prototypical examples. The wide range of democracy type covered provides insights into the very different understanding, enforcement, and effects of unamendability in consolidated, transitional, and hybrid democracies.

Underpinning this work is the belief that unamendability cannot be adequately understood, and its propensity as democratic defence evaluated, divorced from the constitutional politics within which it is embedded. As part of that politics, questions of electoral balance of power, health of the party system, and politicisation of court intervention must be faced head on. Doing so engenders scepticism about unamendability as an unquestionable ally in the fight to protect democracy. I hope to show that unamendability’s propensity to be misused and to lead to distorted outcomes is greater precisely in those contexts where it is most likely to be adopted: incomplete or fragile democracies seeking to entrench a path towards consolidation (hence also my choice of case studies). I also argue, however, that the bluntness and open-ended nature of unamendability risks having a chilling effect on electoral democracy in stable democratic contexts as well. Thus, we should not merely assume that eternity clauses and the judicial doctrines surrounding them will be democracy-enhancing. When we instead investigate their operation in context and across time, including by evaluating their effect upon the electoral arena, we find them to sometimes misfire or even backfire as democratic defences.

12.1 Unamendability and Electoral Competition: Party Bans

One could say the very essence of eternity clauses is to protect democracy from its enemies. We can view such provisions as a prime legal embodiment of the ethos of militant democracy: a constitutional democracy should be able to defend itself against those who seek to undermine its very foundations, including against those who seek to do so via constitutional amendment. In language that has now become the norm, eternity clauses would thus be viewed as prime weapons against ‘abusive constitutionalism’.Footnote ⁶ They would thus complement other measures, such as electoral thresholds, designed to prevent the fragmentation of parliamentary politics as led to the downfall of the Weimar Republic, as well as party bans, aimed at preventing anti-democratic forces from even operating on the electoral arena.Footnote ⁷ A recent attempt at classifying the constitutional elements of militant democracy listed unamendability alongside other tools such as term limits, loyalty oaths, the right to resist, emergency provisions, and civilian control of the military, to be deployed depending on the nature of the threat.Footnote ⁸

The logic of party bans overlaps with that of unconstitutional constitutional amendment doctrines. Just as the latter seeks to prevent otherwise procedurally sound amendments when they substantively undermine democracy and the rule of law, so too party bans seek to prevent not just parties that advocate or engage in violence but also those that threaten ‘a “legal” anti-democratic takeover of the state apparatus’.Footnote ⁹ The hope is that when such subterfuge is afoot, there remain legal resources for courts to intervene before the whole democratic edifice is taken down.

However, we can find more direct connections between party bans and eternity clauses. One of the distinctions between rationales for party bans traces a shift from Weimar-inspired bans to a ‘legitimacy paradigm’.Footnote ¹⁰ The former are aimed at parties that seek to abolish democracy wholesale and have been enforced against Nazi, fascist, communist, and, more recently, Islamist parties. The latter seeks to justify the proscription of those parties that ‘threaten certain elements within the liberal constitutional order, such as commitment to equality and non-discrimination, the absolute commitment to a nonviolent resolution of disputes or secularism’.Footnote ¹¹ This has led to bans on ethnic and religious parties, which have assumed the place of ideological parties in the postwar period.Footnote ¹² However, the logic of Weimar – the fear that mass parties gone awry would destroy democracy wholesale – does not apply neatly to religious and ethnic parties, particularly in a pluralist, multicultural society.Footnote ¹³ Challenges to political identity are vaguer, more diffuse, and therefore more elusive than frontal attacks on democratic institutions, and the danger of essentialising identity – itself a catch-all concept – may be inherent in such bans.Footnote ¹⁴ Eternity clauses, especially those insulating state characteristics such as the form of government, territorial integrity or unity, official language or religion/secularism, are precisely aimed at defining such a political identity and placing it beyond the reach of political contestation.Footnote ¹⁵

The move away from the Weimar paradigm, then, elevates the risk that party bans be abused for partisan purposes.Footnote ¹⁶ One example would be government self-entrenchment against political opponents, the latter recast as enemies of liberal democracy and as such eliminated from political competition. There is also a heightened danger that party proscription follows a process of ‘securitisation’, such as bans in the name of protecting ‘national communities from challenges to core identities and values’.Footnote ¹⁷ Religious, ethnic, and regional parties, whose banning may compound discrimination already experienced by the communities they represent, are most likely to be cast as ‘existential threats’ to the state and as a consequence would also see legitimate avenues for political expression and contestation closed off.Footnote ¹⁸ Insofar as the status quo is the baseline against which unlawful party ideology and behaviour is to be measured, parties organised precisely to contest that status quo become pariahs by default.Footnote ¹⁹ As we will see, party bans in conjunction with constitutional unamendability compound these dangers and judicial oversight may not in fact act as the neutral safeguard some have hoped it to be.Footnote ²⁰

I will discuss three instantiations of these different rationales: party bans in the name of a democratic principle enshrined in an eternity clause, illustrated by Germany; bans of ethnic, separatist, or religious parties in the name of unamendable secularism or territorial integrity and unity, such as in Turkey; and indirect restrictions, where parties are not banned outright but prevented from standing for elections for alleged breaches of state ideology, as in Israel. Insights from other national contexts are brought in where relevant. These examples show how unamendability has been deployed to reinforce democracy not just at a high level of abstraction or in its minimal understanding but in response to locally specific evaluations of democratic threats, sometimes with the effect of significantly skewing the electoral arena. In some cases, such as Germany’s, courts have been astute at modulating the forcefulness of their intervention over time, balancing the threat posed by a given party against the anti-democratic effects of its ban. In other instances, however, such as Turkey’s, courts have adopted a much more rigid approach, reinforced by an extensive eternity clause. In others still, such as Israel’s, party bans have reinforced an ever more exclusionary notion of citizenship.

I will show that the entrenchment of democracy through eternity clauses, whether explicit or implicit, is not always limited to minimal conceptions of democracy. Nor, indeed, is it always interpreted by courts and other constitutional actors as leaving room for the contestation of a single, sometimes exclusionary conception of democracy. In practice, such interpretations have led to party bans and interventions in parliamentary politics that at least in some instances have silenced reasonable disagreement and reduced electoral competition. As such, and like other types of eternity clauses, there is a dark side to democratic unamendability of which it is imperative we remain vigilant.Footnote ²¹ Put differently, the constitutional entrenchment of democratic commitments to the point of rendering them unamendable may yet undermine rather than strengthen those same commitments.

12.2 Unamendability and Parliamentary Politics: Parliamentary Mandates

I wish also briefly to discuss another type of judicial intervention in electoral politics facilitated by unamendability: instances in which courts intervene to protect the electoral or parliamentary arena in the name of an eternity clause. The case I will discuss here is by now famous in the literature and concerns a Czech Constitutional Court decision from 2009.Footnote ⁸⁹ This was the decision setting out the material core doctrine of the court, grounded in Article 9(2) of the Czech Constitution, which reads: ‘Any changes in the essential requirements for a democratic state governed by the rule of law are impermissible.’

But first, some background to the 2009 crisis resulting in the case. In March 2009, after four failed attempts, the parliamentary opposition succeeded in passing a no confidence vote against the Government. An early dissolution of the Assembly of Deputies and early elections was seen as desirable. The constitutional procedure to follow would have involved first proving that the legislative body was unable to function effectively, which in turn involved one of three scenarios: either three failed consecutive attempts at confidence votes in a new Government, or a failed vote on a government bill on which the Government had attached the issue of confidence, or, finally, when the Assembly had been adjourned for a longer period than permitted by the constitution (Article 35(1)). Even under these scenarios, the procedure is not automatic but merely empowers the President to act. The cumbersome procedure was seen as too time-consuming by all political sides, with cross-party consensus emerging that early elections were preferable.Footnote ⁹⁰ As a consequence, an ad hoc constitutional amendment, Constitutional Act No. 195/2009/Coll. was adopted (with a 172:9 vote in the Assembly and 56:8 vote in the Senate) to procedurally pave the way for early parliamentary elections in October 2009.Footnote ⁹¹ This would have shortened the mandate of the existing Parliament, given that normally elections would have been held in May 2010.

This was not, in fact, the first time such an ad hoc path was chosen to deal with a political crisis. In 1997/1998, a similar political compromise emerged in the aftermath of the breakdown of the ruling coalition Government. A constitutional amendment was passed then similarly to enable the running of early elections and resulting in the shortening of that parliamentary term by two years. In that instance, however, the amendment was not challenged before the Constitutional Court and the early elections proceeded as planned.Footnote ⁹²

In 2009, however, one of the MPs standing to lose his mandate challenged the amendment before the Court, arguing that it violated his right to participate in the administration of public affairs and that any exception to his carrying his mandate to the full four-year term needed to be prescribed by the Constitution at the time of his election. He also challenged the nature of the Act in question, arguing it was not a real constitutional amendment because it violated the material core of the Czech Constitution. Specifically, he claimed it breached principles of non-retroactivity, generality, and predictability of laws, which come under the umbrella of respect for the rule of law.

The Constitutional Court agreed and voided the Act. Its decision involved several important steps. First, the Court had to establish its power to review constitutional acts, whereas the Constitution and Constitutional Court Act only stipulated its power to review the constitutionality of ‘laws’. However, relying on its constitutional role as guardian of the constitution (Article 83), the Czech Constitutional Court proceeded with its review. Second, it challenged the nature of the 2009 Act, calling it constitutional only in form and not in substance. Given that it referred to a specific rather than general situation, the Act was closer to an administrative act and in breach of principles of equality, non-arbitrariness, and right to an independent judge, in addition to the principle of separation of powers.Footnote ⁹³ Third, the Court established a link to the Constitution’s ‘material core’ as enshrined by Article 9(2) by accepting the claimant’s rule of law arguments (while ignoring his rights-based claims). Additionally, the Court emphasised the irregular parliamentary procedure followed for adopting the amendment as itself evidence of the breach of the ‘material core’. It sought to ground its decision in both precedent and appeals to history. It thus cited case law having recognised ‘popular sovereignty, a right of resistance, and the basic principles of election law’ as ‘fundamental inviolable values of a democratic society’ and as such part of the ‘material core’ of the constitutional order.Footnote ⁹⁴ The Court also invoked the Weimar experience together with Czech experience with communist semblance of legality to justify its intervention.Footnote ⁹⁵

It should be noted that, hitherto, the enforceability and practical implications of the Czech eternity clause had been disputed. Some had seen it as purely declaratory or else directed to the Senate as the chamber responsible for revising legislation passed by the Assembly.Footnote ⁹⁶ In its decision, however, the Court removed any doubt about the teeth of the eternity clause, declaring it ‘non-changeable … not a mere slogan or proclamation, but a constitutional provision with normative consequences’.Footnote ⁹⁷ In stepping in to enforce it, the Court saw itself as guarding not just the rule of law but also the whole democratic order and the integrity of the Czech constitutional system.Footnote ⁹⁸ It would go on to build its constitutional identity doctrine in later case law, all the while resisting calls to provide an exhaustive list of the elements constituting this constitutional ‘material core’.Footnote ⁹⁹

The literature on unamendability has long debated such judicial self-empowerment when it comes to enforcing eternity clauses. What I wish to focus on here is rather the necessity and implications of the Czech Court’s intervention in the concrete case at hand. The proportionality of the Court’s intervention is dubious.Footnote ¹⁰⁰ Clearly, its invocation of a Weimar-like threat signals the Court saw a real danger to parliamentary politics in the country. However, when looking at the political context surrounding the passing of the 2009 Act, it is difficult to conclude that Czech democracy had really been endangered to the point implied by the Court. The bicameral political consensus underpinning the adoption of the Act, as well as its support from both the prime minister and president, are evidence of wide agreement – among the same MPs that would stand to have their mandates shortened – that early elections were desirable. One could also argue that parliament itself choosing to cut short its term is far less likely to amount to an abuse of process than were it to have done the opposite and extend its mandate or were the curtailment to have occurred at the hands of the executive alone. Additionally, while the 1997/1998 precedent may not have completely excluded the possibility of unconstitutionality, it certainly undermined the existential threat rhetoric employed in 2009. Finally, ignoring the individual rights claims in the case also seems a weakness of the judgment.

The practical consequences of the 2009 decision were manifold. A new constitutional act was adopted in September 2009 that creates a route to early elections involving the self-dissolution of the Assembly by a three-fifths vote (Article 35(2)), thus rendering the amendment in general terms. However, to avoid another constitutional challenge, the new procedure was not relied upon in 2009 and the existing Parliament carried out its full term. It has been argued that the delay ‘hanged the Czech political landscape and probably also the victor of the elections’, seriously denting the vote share of Social Democrats – previously frontrunners in the polls – and allowing the rise of new ‘pro-business parties’ such as Public Affairs in the 2010 elections.Footnote ¹⁰¹ The wide eternity clause was thus the hook on which the Czech Constitutional Court anchored its ‘material core’ doctrine. In 2009, the Court deployed the doctrine ostensibly in the name of protecting parliamentary politics against a Weimar-like threat. It did so, however, at a high political cost and against the wishes of all political actors.

12.3 Conclusion

This chapter has aimed to examine, through a selective range of case studies, the complex interplay between eternity clauses and electoral democracy. It has sought not to take at face value unamendability’s claim to be democracy enhancing, even where the unamendable provisions in question embody a militant ethos and explicitly aim to protect multi-party democracy. Party bans and election invalidations have the potential seriously to affect political competition and parliamentary democracy, so court intervention resulting in such measures deserves very careful scrutiny.

Germany’s example illustrates a seemingly clear-cut commitment to militant democracy that combines constitutional tools including an eternity clause and party bans. The early years of German post-war democracy saw it ban both Nazi and communist parties seen to seek to destroy the democratic constitutional order. As German democracy consolidated, the need for such drastic measures might be said to have decreased, in recognition of which the Constitutional Court stopped short of banning the Neo-Nazi NPD in 2017. However, the Court’s attempt to delimit the constitutional grounds for proscribing parties from the normative content of the eternity clause may have introduced uncertainty both about the standard for banning anti-constitutional parties and about the constitutional core of the Basic Law. As the rise of the AfD has shown, moreover, the threat of extremist parties – also well-versed in avoiding falling foul of constitutional rulesFootnote ¹⁰² – may yet test the German constitutional system’s militant democratic commitments.

In Turkey’s case, we have witnessed numerous party bans on grounds rooted in the constitutional eternity clause, with far-reaching implications for electoral politics. On the one hand, bans on Kurdish parties have operated in tandem with other rules, not least the long-standing 10 per cent parliamentary threshold, to preclude their ability to enter the electoral arena. On the other, the ban on (sometimes salient) religious parties would not appear to have weakened them, given that Erdogan’s AKP has been in power since 2003. However, a different interpretation is possible. As Rosenblum has argued, the separation of state and religion in Turkey, to which we can add the constitutional arrangements entrenching secularism, was ‘uniquely one-directional: government was protected from religion but not vice versa’.Footnote ¹⁰³ As a consequence, no contestation of the balance between state and religion was possible, which in turn could be viewed as having provoked the politicisation of religion.Footnote ¹⁰⁴

Israel’s trajectory is less typical for studies of unamendability, insofar as its constitution is fragmentary and its unamendable core must be pieced together from different legislative and judicial sources. Nevertheless, the definition of the state as Jewish and democratic is clearly part of this core. For decades, its ambiguity served to stave off conflict over political identity, not just between the Jewish majority and non-Jewish minorities but also with religious Jewish groups. The Supreme Court’s universalist, human rights–based approach during that period mitigated the exclusionary potential of this definition. In party ban cases, this meant developing a more restrained approach that upheld bans against racist parties but not those accused of denying the existence of the state as Jewish and democratic. The increasing polarisation in Israeli politics, however, and the entrenchment of this state definition in legislation culminating in the 2018 Nation-State Law have shifted the terms of the debate. It has made it much more difficult to defend this entrenched political identity as anything other than exclusionary, especially in the absence of a similarly entrenched equality guarantee.

Czechia’s experience reveals another side to the story of unamendability’s potential impact on electoral politics. In a context of serious political crisis but also rare political consensus, a political solution was found to pave the way for early parliamentary elections. The constitutional amendment it was enshrined in, however, was invalidated by the Czech Constitutional Court on the grounds that it violated the Constitution’s ‘material core’. A close reading of the decision reveals more concern with building the legitimacy of the Court’s unconstitutional constitutional amendment doctrine than sensitivity to the political context within which the invalidation would produce effects. There are serious reasons to believe the Court’s assessment of the Weimar-like threat to Czech parliamentary democracy was overblown. Moreover, while Czech political actors respected the judgment, its impact on the electoral balance of power was significant.

The examples above show that courts will not always strike the right balance between protecting and unduly narrowing democratic commitments. In some cases, they may even unintentionally undermine multi-partyism itself or significantly influence electoral outcomes. With its bluntness, unamendability may hinder rather than help bring nuance to these difficult decisions.

13.1 Introduction

No country in the world has as many monarchs as Malaysia. Among the monarchies in the world today,Footnote ¹ Malaysia is unique in its system of a rotating, elected monarchy. Within the Malaysian Federation, nine Malay Rulers are sovereign as the constitutional head of their respective states. Every five years, the King who serves as Supreme Head of the Federation – known by the title of the Yang di-pertuan Agong – is elected in a rotating system from among these nine Rulers. The Federal Constitution of Malaysia set up a Westminster-style parliamentary system, with a constitutional monarch as the head of state. The written document explicitly sets out the monarch’s powers, which limits the powers of the King in most areas of governance. As a matter of design, the constitutional text created at independence in 1957 contemplated the monarch as a constitutional figurehead with a largely symbolic role.

Not so in practice. In recent times, the contemporary monarch in Malaysia has emerged as a critical actor in the formation and functioning of the federal government. The monarch assumed a key role during a period of unprecedented democratic transition and disintegration in modern Malaysia.

In 2018, Malaysia experienced a historic national election that resulted in the ousting of the Barisan Nasional ruling coalition that had governed the country for more than sixty years since independence.Footnote ² Malaysia’s political transition was hailed as a democratic breakthrough, ending decades of dominance by a single political coalition.Footnote ³ Twenty-two months after being elected, however, the newly elected Pakatan Harapan government disintegrated following a series of political defections. A divisive battle for government leadership ensued among former prime minister Mahathir Mohamad, his supposed successor Anwar Ibrahim, and senior politician Muhyiddin Yassin. The King intervened directly into this government crisis by deciding to appoint Muhyiddin Yassin as the new prime minister, cementing a government turnover to a coalition that returned to power many from the previously deposed ruling political party.

In the months that followed, the monarch played a central role in the country’s governance. As the Perikatan Nasional government under Muhyiddin Yassin struggled to deal with the COVID-19 pandemic while maintaining its fragile grasp on power, the Agong refused the new premier’s bid to declare emergency rule. Later, in July 2021, the Agong publicly rebuked Muhyiddin’s administration for announcing that the emergency proclamations had been revoked without the monarch’s consent.

This chapter explores the central part the monarch played in facilitating the political transition and in the constitutional governance of Malaysia’s contemporary political order. Doing so raises broader questions about the role of the monarchy in a democracy and its institutional capacity to safeguard against incumbent capture or to accelerate democratic erosion. It begins in Section 13.2 by setting out the historical context for Malay kingship and its eventual transformation into a constitutional monarchy after Malaya’s independence in 1957 from British colonial rule. It examines the constitutional design of Malaysia’s federal parliamentary system and the design choices made regarding the ways in which the Federal Constitution structures the relationship between the monarchy and the other branches of government.

Section 13.3 tells the story of the monarch’s rise during Malaysia’s first change of government following a general election and the subsequent collapse of two successive governments. The political crises that occurred amidst these government transitions and during the COVID-19 pandemic have left the country’s political parties and electoral institutions highly fragile. Meanwhile, following the royal interventions between 2018 and 2021, the monarchy has emerged with an enhanced position in Malaysia’s contemporary constitutional order. Far from being an outdated or anachronistic institution, the story that emerges is that monarchy in Malaysia is not just surviving, it is thriving – a story that has broader resonance in other parts of Southeast Asia. Section 13.4 offers some concluding reflections on the role that the monarch can play in protecting or undermining constitutional democracy.

13.2 Of Sultans and Kings: History and Constitutional Design

13.3 Constitutional Monarchy in Contemporary Practice

13.4 Concluding Reflections: Constitutional Monarchy and Constitutional Democracy

On August 5, 2017, in a speech at a convention held in the administrative capital city of Putrajaya, Sultan Nazrin Shah, the state Ruler of Perak, put forward his account of the constitutional monarch in striking terms:

That statement would turn out to be predictive. In the four years after the speech was delivered, the monarch would emerge as a critical actor in the creation and governance of the federal government. When the Pakatan Harapan government collapsed in early 2020, the King intervened into the political dispute by appointing a new prime minister. And, as the new administration sought to maintain its tenuous hold on power while struggling to manage the coronavirus pandemic, the Agong came to play a crucial role in declaring the start, and the end, of emergency rule in the country. These royal interventions at the federal level throughout 2018 to 2021 placed the monarch at the very heart of the nation’s constitutional politics.

Does an enhanced role for the monarch serve to protect or undermine constitutional democracy? Answers vary, unsurprisingly, depending on who you ask, and when that question is asked. For some, the constitutional monarch played a crucial part in “stabilizing” political crises and as a “check-and balance to the government in power.”Footnote ⁵⁴ Others have decried the royal assertiveness as illegitimate intrusions into the democratic process – indeed, some have called the monarch’s actions a “royal coup”Footnote ⁵⁵ – and voiced fears about “overreach by future monarchs.”Footnote ⁵⁶ What seems undeniable is that the monarch’s position and powers have been augmented to an extent not seen since before Malaysia’s independence in 1957.

How and why has the monarch come to assume such an empowered position in contemporary constitutional governance?Footnote ⁵⁷ Those viewing the King’s enlarged powers as “substantially departing from Westminster-modelled constraints” raise concerns over whether recent interventions have left “a lasting imprint on an ‘Eastminster Constitution’ with an enhanced monarchy.”Footnote ⁵⁸ As Andrew Harding asks: “Do we live in postmodern world of constitutionalism in which even apparently defunct or declining institutions can take on new life, taking their place alongside both the familiar and the innovative?”Footnote ⁵⁹

The revival of constitutional monarchy in contemporary Malaysia underscores the ways in which constitutionalism and practices of constitutional governance exist beyond the written text. In terms of constitutional design, the Malaysian experience highlights how the drafting of the written constitution and the structure it sought to put in place may produce effects unintended by the framers. When Malaysia’s Federal Constitution was created at the Federation’s independence from the British, the nation’s founding fathers envisaged a Westminster-model constitutional monarchy, with a symbolic role for the Rulers. It was clear, Kobkua Swannathat-Pian notes, that they “were not in favor of a return to a time where the Rulers had socio-political powers”; rather, it was their “ardent desire that the Rulers’ role would be limited to simply that of the symbolic kind.”Footnote ⁶⁰ The framing of the constitutional text reflected these aspirations, with limited discretionary powers afforded to the King. Unlike Britain, Malaysia’s constitutional system accorded supremacy to a written text.Footnote ⁶¹

Yet, there can be significant play in the joints when it comes to constitutional text and constitutional practice. Even in countries that accord primacy to the written constitutional document, like the United States, constitutionalism is recognized also to encompass the actual institutional practices of government.Footnote ⁶² For emerging democracies in Southeast Asia – of which Malaysia is a case in point – institutional practices and constitutional conventions are far from being settled. In a setting in which constitutional norms are still in flux, institutional actors – like the monarch – have greater space to negotiate their role in constitutional governance. That’s especially so in times of political turmoil, during which the lack of established constitutional rules and political norms often create a lacuna that allows, or even compels, a monarch to step in.

In times of political or constitutional crisis, a monarch may take on a key role to resolve the conflict.Footnote ⁶³ Tom Ginsburg describes the monarch’s function in this kind of situation as “crisis insurance.”Footnote ⁶⁴ Examples of sovereigns who have acted to provide a “focal point” during times of crisis include King Juan Carlos I denouncing the 1981 Spanish coup d’etat attempt in a televised address, or Thai King Bhumibol summoning the prime minister general and the leader of the anti-government protest movement to the palace in 1992 for a royal audience that was broadcast on television.Footnote ⁶⁵ This account captures part of the story, although Malaysia’s constitutional monarch has taken on a role that arguably goes beyond serving as a symbol of unity. The Agong emerged as the critical actor that directly facilitated the government’s turnover in early 2020 by deciding who to appoint as prime minister.

Recall the King’s unprecedented intervention in interviewing all the legislators individually to determine who commanded majority support during the government crisis in February 2020. “Politically neutral institutions such as the judiciary and monarchy attract attention in such circumstances as potential power-brokers,” Harding observes.Footnote ⁶⁶ Of course, many established democracies in the West have also witnessed the breakdown of what have been thought to be well-established political and constitutional norms. In many constitutional systems, the spotlight has been on the rise of the courts as the institution empowered to decide. We see this, for example, in the United Kingdom Supreme Court’s invalidation of the Boris Johnson administration’s prorogation of Parliament in the lead up to Brexit at the end of 2019.Footnote ⁶⁷

In a system of fragile (judicial) constitutionalism, as in Malaysia, it is the monarch that stepped into the breach by intervening in the immediate political moment. Turning the lens to other monarchies in Southeast Asia, think of the neighboring state of Thailand. Although described as following “in form” a “Westminster-style constitutional monarchy … in practice, the monarch [in Thailand] reserves the ultimate extra-constitutional powers to interpret, intervene, reject, or direct a course of action on the affairs of the state.”Footnote ⁶⁸ On this account this kind of assertive monarchy reflects a Southeast Asian model of constitutional monarchy.Footnote ⁶⁹ Some have used the term “Eastminster” to describe British postcolonial systems that have developed and deviated from a Westminster model.Footnote ⁷⁰ But cautionary tales exist, and monarch that is not circumspect about guarding their legacy risks damaging its institutional legitimacy and authority. Footnote ⁷¹

The rules of democratic and constitutional engagement are not yet to be fully specified in regimes undergoing democratic transition(s),Footnote ⁷² or after a decades-long equilibrium has broken down in a dominant party system, as occurred in Malaysia. In such circumstances, a non-electorally legitimated institution – like the monarch – that draws on its reserve powers to intervene in a stabilizing capacity may well renegotiate its role in the country’s governance.

Periods of instability or political transition may present a monarch with the opportunity to play a decisive role in modulating the transition process. A monarch’s enhanced function in times of crisis may prove dysfunctional at a later time, however. And in a political system has emerged from an initial period of instability, it may prove challenging to tie the hands of a monarch that has come to wield an expansive part in affecting the democratic character of a regime.