Blasphemy, Holocaust Denial, and the Control of Profoundly Unacceptable Speech

Dados Bibliográficos

ID9529408
AutoresNeville Cox (Korean Constitutional Law Association, autor correspondente)
Ano2014
Volume62
Fascículo3
Páginas739-774
Data de publicação2014-07-01
Peer ReviewedSim
Open AccessNão
TipoARTICLE
PeriódicoThe American Journal of Comparative Law (JOURNAL)
Identificadores do periódicoISSN: 0002-919X • E-ISSN: 2326-9197
EditoraOxford University Press (OUP) (PUBLISHER)
DOI10.5131/ajcl.2014.0022
OpenAlexW3175463228
IdiomaEN
Citações recebidas2
Referências citadas17

Many new democracies exhibit a disturbing lack of electoral competition. All too often, the first party to hold office creates a network of power and patronage that chokes off meaningful political challenge. These strong party democracies, with power often being held by the inheritors of the political mantle of those that led the opposition to prior authoritarian rule, exhibit a tendency toward the three “C's” of associated with the lack of accountability: clientelism, cronyism, and corruption. Such strong-party regimes and their associated pathologies present relatively new constitutional courts with a distinct set of controversies that necessarily bring the judiciary into conflict with consolidating political power. This article explores the form that judicial responses to the excesses of political dominance might take. Three courts are selected as exemplars of such responses. In the first instance, the Colombian Constitutional Court repudiated the attempt of President Uribe to amend the constitution to permit a third term in office, despite the lack of reasoning to support the rejection of a largely procedurally proper constitutional amendment. In the second, the South African Constitutional Court has scrupulously avoided any frontal confrontation with the current African National Congress government, instead casting its repeated rejection of government efforts to insulate itself from accountability in narrow procedural rulings or in rulings based on other, non-politically charged sources of law. Finally, there is the Thai Constitutional Court which, while providing the strongest jurisprudential defense of its intervention, appears an active ally of one partisan camp as the country hovers on the brink of civil war. Rather than offer any off-the-rack solution for the difficult realm of constitutional courts as democracy falters, this Article examines the relation between the issues presented to such courts and the fundamental absence of electoral challenge and accountability. To the extent these courts navigate this difficult terrain, the Article concludes, the decisive feature will likely be the ability to contribute to the establishment of a competitive electoral system able to constrain single-party dominance

Accountability · Authoritarianism · Constitution · Democracy · Legitimacy · Opposition (politics) · Political science · Politics · Sociology · Bangladesh Politics, Society, and Development · Hate Speech and Cyberbullying Detection · Judicial and Constitutional Studies · Law