Novel Remedies and New Democracies

Abstract

Common law courts in new democracies have responded to the systemic challenges in their political systems by devising novel constitutional remedies to ameliorate the challenges they face in their environments. In dominant-party democracies like Hong Kong where the semi-permanent ruling government may ignore the court’s constitutional determinations, or in India, where the State machinery is bogged down by corruption and bureaucratic inertia, the judges in these two new democracies perceive their role within their regime to be more dynamic in nature. Their judges are ‘managerial’ or ‘catalytic’: they play a role in shaping policy with constitutional remedies, which are foreign to the rest of the common law world, to mitigate deficiencies found in their political systems. Two such novel constitutional remedies will be examined: (1) Suspension Orders with ‘Bite’; and (2) Judicial Directives. The two constitutional remedies may differ in their ‘robustness’ but they are innovative judicial strategies to secure the observance of the law by their governments and extend social justice to the underprivileged or marginalised.