CONSTITUTIONAL REPAIR:

HOW CAN DAMAGE BE FIXED?

After years of worrying about democratic decay, we are now increasingly confronted by a different question: how can a constitutional democracy be repaired after being deeply degraded, but not ended, during a period of anti-democratic government?

After years of worrying about democratic decay, we are now increasingly confronted by a different question: how can a constitutional democracy be repaired after being deeply degraded, but not ended, during a period of anti-democratic government?
Such governments cause all kinds of damage to the democratic system, but in this section we are mainly focused on repairing damage to core state institutions such as the courts, prosecution bodies, or legislatures, as well as core processes - especially electoral processes. These are essential to baseline functioning of a viable democratic system.
Governments, judges, civil society and scholars are currently grappling with these challenges and questions as anti-democratic governments have been ousted—at least temporarily—in the USA, Brazil and Poland, and pro-democratic opposition forces have mounted meaningful electoral challenges in states such as Hungary.
The live debates about repair also have real implications for countries continuing to suffer serious democratic decay even where a more democratic opposition’s electoral success is more remote, including two of the world’s largest democracies - India and Indonesia.

It’s fair to question whether ‘decay’ is the right metaphor to capture this phenomenon.
For instance, [Sadurski, Meyer…]
chicken and egg q
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Description text goes here
After years of worrying about democratic decay, we are now increasingly confronted by a different question: how can a constitutional democracy be repaired after being deeply degraded, but not ended, during a period of anti-democratic government?
Such governments cause all kinds of damage to the democratic system, but in this section we are mainly focused on repairing damage to core state institutions such as the courts, prosecution bodies, or legislatures, as well as core processes - especially electoral processes. These are essential to baseline functioning of a viable democratic system.
Governments, judges, civil society and scholars are currently grappling with these challenges and questions as anti-democratic governments have been ousted—at least temporarily—in the USA, Brazil and Poland, and pro-democratic opposition forces have mounted meaningful electoral challenges in states such as Hungary.
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WHAT ARE THE OPTIONS?

OPTION 1

Stay within standard democratic and rule-of-law norms, even if this means that key areas of institutional damage cannot be repaired. Rebuild the rule of law by strictly respecting legality.

OPTION 2

Take any measure deemed necessary to restore minimal functioning of core institutions. This can include extreme measures that violate democratic and rule-of-law norms.

A MIDDLE COURSE? OPTION 3

A middle course is to seek to adhere to standard democratic and rule-of-law norms as far as possible, but not to foreclose the possibility of extreme measures if these are genuinely necessary to repair the system in the short term (e.g. restoring the independence and impartiality of the top court).

In the podcast, FAQs and working papers below we consider key questions, including how process and institutional design can help to differentiate extreme actions for repair from previous actions to undermine the democratic system.

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LISTEN

In this Democracy Paradox podcast interview (January 2024) DEM-DEC Director Tom Daly talks about why constitutional repair is so distinctive and difficult, and how the process and debate are unfolding in Poland.

READ AN ANNOTATED AND UPDATED TRANSCRIPT TEXT HERE