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Final Key Terms .docx

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McGill University
Political Science
POLI 330
Maria Popova

KEY TERMS FINAL POLI 330 Judicialization of politics - It meath that the policy making power of judges has expanded globally during the 20 century and it has expanded at the expense of the power of politicians and bureaucratic - The spread of judicial procedures beyond the judiciary: judicial decision making methods have spread to the other two branches of government o Political bargaining should be done in the open because it is a judicial procedure o Judicial emphasis on ascertaining the truth rather than political emphasis o The quest of finding the truth and now has seeped into political discourses o Negative freedom: the legislature now shelters th o The rights discourse has really exploded since the mid 20 century - Evidence that judicialization is the trend o Constitutional courts have popped up around the world o These institutions have become more and more powerful than Kelsen originally believed it to be o Explosion of rights litigation: more and more rights are included in constitutions, which expands the powers because they are going to interpret and implement the application of those rights (personal rights, civil rights, political rights, socio-economic rights, equality rights, minority and linguistic rights) o Policy process tracing allows us to see that over this period of explosion and judicialization of politics, legislatures have paid more and more attention to constitutional politics when they draft policies  self censorship form known as auto-limitation Politicization of the judiciary - How political factors invade judicial decision making Mani Pulite - “Clean hands” in Italian; was a nationwide judicial investigation into political corruption held in the 1990s. o It led to the demise of the so-called First Republic resulting in the disappearance of many parties o Some politicians and industry leaders committed suicide after their crimes were exposed o The corruption system that was uncovered by these investigations was usually referred to as Tangentopoli, or “bribesville” - Tangentopoli began on 17 February 1992 when judge Antonio di Pietro had Mario Chiesa arrested for accepting a bribe of 300 euro from a Milan cleaning firm. He was arrested on charges of corruption, leading to the mani pulite and eventually to a restructuring of Italian politics. o Mario Chiesa was an Italian politician and member of the Italian Socialist Party. o He was a low level civil servant and the head of Milan’s biggest state owned retirement home - While in pre-trial detention, he asks for support from the socialist party. In the context of this political upheaval, the socialist party refuses to back him up. The PSI distanced themselves from Chiesa. Bettino Craxi called Chiesa a “mariuolo” or a villain of the otherwise clean Italian Socialist Party. Upset over this treatment by former colleagues, Chiesa began to give information about corruption implicating his colleagues. o This led to the start of the Mani Pulite investigations, undertaken by the prosecutors o A snow ball effect emerges: in the year after Chiesa’s arrest, 41 are charged with bribery, corruption, abuse of office, criminal bankruptcy, illicit political party funding  leading a lot of them to commit suicide  It led to major electoral reform and to the end of the first republic  Investigations went down by 1996 but politicians and judges continued to be at odds in Italy  The legitimacy with the public of the ordinary judiciary increased Laszlo Solyom - Hungarian political figure and President of Hungary from 2005 to 2010. He was elected into the Constitutional Court of Hungary in 1989: contributed to the removal of capital punishment, protection of information rights, freedom of opinion and conscience, etc - He introduced the principle of invisible constitution o It is based on the motivating decisions of the court by the spirit or morals of the Constitution rather than its explicitly written form o The norms were things such as rule of law, human dignity, etc but none of these were designed or mentioned in the constitution o He wanted to promote human dignity (to legalize civil unions for gay couples, for requirement that military officers ask for permission of superiors to get married) and the rule of law Orange Revolution in Ukraine (example of independent courts issues) - Orange Revolution was a series of protests and political events that took place in Ukraine from late November 2004 to January 2005, in the immediate aftermath of the run-off vote of the 2004 Ukrainian presidential election, which was claimed to be marred by massive corruption, voter intimidation and direct electoral fraud o Kiev was the focal point of the movement’s campaign of civil resistance, with thousands of protesters demonstrating daily o The opposition movement organized a series of acts of civil disobedience, sit-ins and general strikes - The protests were prompted by reports that the results of the run-off vote of 21 November 2004 between leading candidates Viktor Yushchenko and Viktor Yanukovych were rigged by the authorities in favor of the latter - The nationwide protests succeeded when the results of the original run-off were annulled, and a revote was ordered by Ukraine’s SC for 26 December 2004. Under intense scrutiny by domestic and international observers, the second run off was declared to be “fair and free”. Yushchenko won! With his inauguration on 23 January 2005 in Kiev, the Orange Revolution ended o The SC announced a decision and cancelled the results of the 2 roundd and ordered a re-run of the 2 nd round  demonstrated tremendous bravery and independence from incumbents  Judges were under pressure from the public and afraid of the 1 million people gathered under the SC building  They felt dependent on the million of people on the square; we cannot really talk about independence Khodorkovsky - Mikhail Khodorkovsky is a former Russian oligarch and businessman. He is considered a prisoner of conscience by Amnesty International (imprisoned because of race, religion or political views and act that result thereof) o He was part of the Financial Industrial Group and acquired banks, oil companies, and media o He was worth 8 billion dollars - After the dissolution of the Soviet Union, he accumulated wealth through the development of Siberian oil fields as the head of Yukos, one of the largest Russian companies to emerge from the privatization of state assets during the 1990s - When Putin came to power in 2000, he sent a clear message to all oligarchs in the country telling them that they would preserve their fortune if they stayed out of politics. Many oligarchs took this message seriously; if not they were arrested and their holdings were nationalized and redistributed - Khodorkovsky continued to be involved in politics and did not listen to Putin’s threat: he funded political parties and prepared for the upcoming parliamentary campaign - He is arrested on 25 October 2003 with white-collar offences (not paying back taxes, fraud acquiring different companies, etc.) - Putin’s government froze shares of Yukos shortly thereafter on tax charges. The state took further actions against the company, leading to a collapse of the company’s share price and the evaporation of Khodorkovsky’s wealth. He was found guilty and sentenced to 9 y imprisonments in May 2005. While still serving his sentence, Khodorkovsky and his partner Platon Lebedez were further charged and found guilty of embezzlement and money laundering in December 2010, extending their sentence to 2017 o His prosecution illustrates how useful the ordinary judiciary can be in settling political accounts and in helping incumbents hold on to power and solidify their power o Very selective in deciding who to prosecute Independent vs. dependent courts - Restraint court vs. activist courts - Restraint o It truly acts as a negative legislator: it decides what kinds of laws are unacceptable for a country and which laws should not exist o It invalidates laws as a last resort: the court looks for ways in which it can uphold the constitutionality of a law o It relies on legislative intent (what lawmakers had in mind when passing the act or statute; it is studied for guidance in interpreting a statute): it accepts the supremacy of the legislative branch o It puts the burden of proof on those who argue that the law is unconstitutional rather than on those who argue that it is constitutional  Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional. - Activist o It invalidates hugely important laws and invalidates laws if there is a reasonable argument that this law can be argued as constitutional o It does not accept the notion of legislative intent o It relies on values rather than on rules  E.g. of the invisible constitutional doctrine – Laszlo Solyom o It engages in balancing jurisprudence, which refers to the constitutional court inserting arguments about the wisdom rather than the legality of the balance. It goes beyond the issue of constitutionality and starts including arguments about whether a certain policy is wise, necessary, avoidable, and unavoidable o It expands unilaterally its jurisdiction – basically grabbed one type of cases, asserted that they had the power  Judicial activism describes judicial rulings suspected of being based on personal and political considerations rather than on existing law Judicialization of Politics:  2 definitions: 1) It means that the policy making power of judges has expanded globally during the 20 century and it has expanded at the expense of the power of politicians and bureaucracies 2) The spread of judicial procedures beyond the judiciary: judicial decision making methods have spread to the other two branches of government.  Political bargaining should be done in the open because it is a judicial procedure  There is a judicial emphasis on ascertaining the truth rather than political emphasis  The quest of finding the truth (used to be judicial) now seeping into political discourses  Negative Freedom: The rights discourse has exploded since the mid 20 century, which speaks to judicial methods bleeding into other political processes. The legislature now shelters  Evidence that Judicialization is a Trend: o Constitutional courts (Kelsanian model) have really become a global institutional structure. Furthermore, these courts in most of the world continue to get more powerful and more relevant to policymaking over time  For example, look at the clear trend towards the constitutionalization of rights and very detailed, elaborate rights lists extending the power of the CC because they are the institution that reviews and interprets these very rights lists! o Legislators have been paying more attention to the constitutional argument when policymaking (“auto-limitation” or self- censorship/anticipation)  This is an indirect indicator that the courts are generally restricting legislative behaviour  The debate isn’t the POSITIVIST claim that judicialization of politics has happened. The debate is NORMATIVE: whether there is good or not! Functionalist Theory:  Relates to theories explaining the advent of New Constitutionalism (which refers to the overall judicialization of politics, judicial empowerment etc.) Is this trend a product of the ELITES or the MASSES? Does it signal a crisis of democracy or maturity?  Functionalists and the MASSES: holds that something appears because there is a need. Strong and empowered courts appear because the public wants recourse to hold politicians accountable between elections. Constitutional petitions are this mechanism o The courts can be a majoritarian institution because it accepts petitions from the judiciary. o New constitutionalism is maturing democracy  Functionali
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