ABSTRACT
This chapter focuses on the dialectics of the judicialization of politics with particular reference to transitional contexts. A central feature of contemporary governance is the growing influence of courts on the direction of politics and mechanisms for democratic accountability in the public (government) and private (individual) spheres. The judicial role in governance has taken centre stage not only in developed democracies but also democratizing polities round the world.1 This growing incidence of active and (sometimes) direct judicial participation in policy-making in transitional polities further validates the case for institutional accountability of the judiciary (along with other institutions of the state) for its past role in governance in those societies. The increasingly decisive role the exercise of judicial power plays in policy
formulation and decision-making in contemporary governance reinforces the importance of accountability of the judiciary for the past in societies in transition. The strategic position of the judiciary in governance raises the need for substantial scrutiny and accountability for its role in the authoritarian period of a society’s past which, as in the context of this book, may be of authoritarian rule. This is important to legitimate its authority in the conduct of the moderating role almost invariably thrust on it in postauthoritarian societies. In view of its peculiar institutional design that mostly shields the judiciary from scrutiny, especially of a public (or democratic) nature on a regular basis (in contrast to other public centres of power), society has to be assured that the judiciary is properly constituted to exercise its expanding powers. In this regard, it has been recognized that motivations other than holding
power to account, or concern for the common good, may condition otherwise bold, even confrontational, decisions of the judiciary, trumping actions and policy initiatives of other branches of government. The operation of the judicial function, based on such an institutional outlook, jeopardizes the symmetry of ‘horizontal accountability’ which judicial activity ideally represents in such contexts.2 Horizontal accountability is a form of accountability
where a subordinate reports to, or is held accountable by, an external as against a hierarchical superior. This contrasts with the traditional, vertical form of accountability in which an agency reports ‘internally’ to a superior. Horizontal accountability is regarded as being more promising for achieving accountability and has now become an increasingly adopted form of accountability.3
