This article aims to continue the recent neo-Elyean turn in comparative constitutional scholarship by further exploring the role of the courts in supporting and protecting democracy. In so doing, it refines and develops my previous work on the topic, and applies this fuller version to a highly visible current dispute. The article first examines the underlying conception of democracy that comparative political process theory is designed to protect; namely, constitutional democracy. It asks what this is and what role courts have in supporting it. The article then introduces the idea of ‘semi-substantive review’ as an integral and output-oriented part of a comprehensive comparative political process theory, alongside and in addition to the types of more purely procedural review I primarily emphasized in my previous work. Finally, the article employs the recent, highly controversial judicial reforms in Israel as a case study in applying the criteria for, and limits of, court intervention in my account. It analyses whether, why and how, in the event that the deeply contested bills become law (as so far one did), judges would be justified in acting to support and protect constitutional democracy.

Deliberative constitutionalism is one of the most important developments of recent decades in constitutional theory and practice. It is in this context that Cristina Lafont’s Democracy Without Shortcuts was published. Lafont’s theory provides an opportunity to advance the research agenda on deliberative constitutionalism since she offers a deliberative democratic reinterpretation of judicial review. According to this compelling and powerful idea, citizens can challenge any laws in constitutional courts and thus trigger democratic deliberation about rights. With this issue in mind, this article offers a general approach to deliberative constitutionalism, describes Lafont’s reinterpretation of judicial review, and makes explicit five tensions in this reinterpretation of judicial review vis-à-vis deliberative constitutionalism: (1) the default authority in the interim; (2) the procedural type of constitutional amendment; (3) the scope of judicial review; (4) the irrelevance of constitutional amendments; and (5) the scope of constituent power.

The 2008 Constitution of the Union of Myanmar establishes the framework for a ‘discipline-flourishing’ constitutional democracy in which the Tatmadaw, the Burmese military, retains a significant degree of power. Under this Constitution, the Union Election Commission (UEC) is vested with significant authority to supervise elections, regulate political parties and electoral campaigns, register voters, suspend elections, and to make conclusive determinations in electoral disputes. Between 2010 and 2020, the UEC oversaw three consecutive general elections and three by-elections. Following a term under the former military leadership, the country's major democratic opposition party, the National League for Democracy (NLD), won a resounding victory in the 2015 elections. In the years that followed, civilian-military relations were a source of tension, as the NLD attempted to reform the executive and legislative roles for the military guaranteed by the Constitution. These tensions became in particular tangible during the 2020 elections, which the NLD again won in a landslide victory. The military alleged the election was marred by fraud while the UEC rejected this allegation. On 1 February 2021, hours before the new parliament was to convene, the Tatmadaw staged a coup d’état. This article reviews the UEC in its constitutional and political context. It identifies its institutional features, significant points in its brief history, and the impact of UEC leadership as a contributing factor in fostering confidence in the electoral process.

In August 2017, responding to a petition from the losing candidate in the presidential election held days before, the Supreme Court of Kenya declared the results of the election null and void. Dramatic in itself, the decision stands in surprising contrast to the same Court's decision to uphold the 2013 election results following a similar petition. Beyond the different outcomes in 2013 and 2017, the Court's jurisprudential approach to the two petitions was markedly different. The Court showed significant deference to the Independent Elections and Boundaries Commission (IEBC) in 2013, and did not seriously interrogate its conclusion that the election had been free and fair. In 2017, however, the Court scrutinised the IEBC's process and paid close attention to the reasons it gave for declaring the result free and fair. This article considers the difference in the Court's approach in two ways. First, from a prescriptive perspective, it suggests when it is appropriate for courts to closely scrutinise the work of elections management boards and other ‘fourth branch’ institutions protecting democracy (IPDs). The article argues that where an IPD performs a function that is constitutive of rights, courts should be prepared to intervene. By contrast, where an IPD performs a function that is regulative of already constituted rights, courts of review should act with deference. On this basis, the article concludes that the Court should have engaged in a deeper review of the IEBC's 2013 decision. Second, from a descriptive perspective, the article suggests that the difference between the Court's 2013 and 2017 approaches can be explained by waning levels of public trust in the IEBC alongside growing levels of public confidence in the judiciary.

In an age of profound democratic anxiety, significant academic attention has been paid to the crisis in constitutional democracy. Constitutional lawyers, however, are still grappling with the relationship between public law and the current actual and perceived threats facing constitutional democracy in countries worldwide. This Introduction considers how the articles in this special volume address three pressing questions. How should we should define the current threats to democracy, and populist challenge? Second, how might public law be a potential cause or contributing factor? Third, how might public law still provide some answers to the contemporary challenges to constitutional democracy? In Prof Dixon’s view, constitutional democracy is a good worth preserving and there are models of at least relative “success” in the current constitutional universe. But Prof Dixon shares the view of many contributors to the special volume that the challenge is immense, and urgent, and that there are no easy solutions.

Populism and time – Democracy and representation – The open mandate and party democracy – Democracy and non-majoritarian institutions – Populist challenge as symptom of constitutional democracy's malaise

In this article I draw on John Dugard's criticism of apartheid judges to initiate a discussion of the role and functioning of judges in the post-apartheid era. Using John's critique of the limits of judicial interpretation in an illegitimate order, I extend the analysis to review the record of the Constitutional Court in adjudicating socioeconomic rights cases post-1994. In doing so I propose a radical interpretation of the Court's role in society and an activist functioning of judges in South Africa's constitutional democracy. I conclude that, notwithstanding the momentous changes in the South African legal order since 1994, John's critique of the judiciary retains much value and applicability today.