Political Repression. Linda Camp Keith

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СКАЧАТЬ and added measures of constitutional protections and institutional provisions, found the measure to be statistically insignificant. Keith (2004) found some evidence of colonial influences, in that rights-related constitutional provisions performed better in countries with Iberian colonial experience; and Keith and Ogundele (2007) found that in Sub-Saharan Africa former francophone colonies had better human rights protection than anglophone ones and that constitutional protections and institutional provisions of former francophone colonies outperformed those of anglophone ones. In my work here, I examine these findings fully, along with other colonial legacies such as the type of legal system.

      Domestic Law and the Judiciary

      A growing body of empirical studies has examined the question of whether constitutional provisions for rights and an independent judiciary constrain the likelihood that states will repress their own citizens. Most of these studies have examined the role of specific rights typically embedded in bills of rights, and to a lesser extent institutional constraints such as provisions for an independent judiciary, state of emergency clauses, or provisions for federalism. The earliest analyses (Boli-Bennett 1976; Pritchard 1986) found evidence that not only were the constitutional provisions not associated with improved rights behavior, but also the associations were in the opposite direction, suggesting a harmful effect. However, Blasi and Cingranelli (1996) found some evidence of a weak direct effect. These early studies tended to utilize simple bivariate analysis of the association between constitutions and various rights measures, and additionally they tended to be limited to a single year; thus the generalizability of the results is significantly limited. Over time the analyses have become more statistically sophisticated, and the depth of analysis has extended to longer periods and a broader set of countries, beginning with Davenport (1996), which presents a rigorous and comprehensive analysis of the impact of constitutional provisions on state use of negative sanctions on its citizens. He, too, finds limited effects: only three constitutional indicators (out of fourteen) demonstrate a statistically significant effect on state repression, and several other provisions appeared to increase sanctions, although their coefficients did not achieve statistical significance. As Davenport notes, his sample is limited and not representative of the world and his time frame ends in 1982, well before the development of constitutions in the Third Wave of democratization and the post-Communist era. Nonetheless, the initial skepticism generated by his analysis continues across subsequent studies. Cross (1999) finds no statistically significant association between constitutional provisions for reasonable searches and human rights protection, but he does find that judicial independence increases the probability of political rights and protection against unreasonable searches and seizures. Cross’s effort to analyze the impact of judicial independence on human rights is commendable; however, his measure of judicial independence is the subjective rating devised by the late Charles Humana (1992) which provides no replicable operationalization of the concept of judicial independence. Additionally, the study is limited to a small, not fully representative sample of countries.

      My previous work has built upon these early studies, expanding the analysis to the global set of countries across a twenty-year period and also expanding the set of constitutional provisions. Keith (2002a) examined ten constitutional provisions associated with internationally recognized human rights and found some evidence to support the optimistic perspective, and while the traditional freedoms associated with bills of rights (freedom of speech, religion, assembly, association, and press) were not found to improve state protection against personal integrity abuse, provisions for public and fair trials did significantly improve states’ behavior, even when controlling for the broad range of factors known to influence this type of behavior. In addition to the failure of the basic constitutional freedoms to influence human rights, neither the provision for the right to writ of habeas corpus nor a provision banning state torture influenced states’ human rights behavior. Keith’s (2002b) examination of the impact of seven provisions increased the likelihood that states would protect fundamental freedoms and rights; these included provision for separation of powers, guaranteed terms of office for judges, fiscal autonomy for the judiciary, and a ban against exceptional courts. However, again, the remaining provisions failed to produce the expected effect; these included the provision for exclusive judicial authority and finality in its decision-making process, along with the provision for enumerated qualifications for judges. Keith cautioned that her analysis is limited to formal provisions for judicial independence, which do not guarantee that the judiciary actually achieves the level of independence that would be necessary to stand against the regime in protecting fundamental rights. In this book I seek to address that need.

      Prior to Howard and Carey (2004) there was not a systematic replicable measure of actual judicial independence available for all countries that went beyond formal provisions. A few studies have created subjective ratings for a significant albeit nonrandom set of countries; however, these evaluations are not replicable (for example, Johnson 1976; Cross 1999; La Porta et al. 2004). Howard and Carey created an indicator of de facto judicial independence based on assessments within the Department of State’s human rights country reports that measure the degree to which judiciaries function in practice independently of the executive and legislature, are free from corruption and bribery, and afford basic criminal due process protections to criminal defendants. Howard and Carey do find that across a ten-year period and the global set of countries the level of judicial independence does influence states’ provision of civil and political rights. While I applaud Howard and Carey’s standardsbased measure of judicial independence, I have concerns about the use of their measure in regard to our human rights analysis, because one of the measure’s three components considers whether the state “afford[s] basic criminal due process to criminal defendants” (287). This component seems at best indirectly related to consensus definitions of judicial independence, as we will see in Chapter 4. More importantly, my strong interest in exploring the potential influence of judicial independence on human rights leads us to be very sensitive to possible overlaps between operationalizations of independent variables linked to human rights and our primary human rights measures, the Political Terror Scale (Gibney and Dalton 1996), frequently referred to as a measure of the abuse of personal integrity, and Cingranelli and Richards’ measures of physical integrity (Cingranelli and Richards 1999). Both measures assess the degree of abusive or politically motivated state behavior, including imprisonment, torture, disappearance, and extrajudicial killings, which seem by their very nature to deny basic due process rights. Even if, arguably, the targets of the abuse are not in fact criminals, we are still measuring in our dependent variable the same forms of abuse, which encompass an abuse of procedural due process as well. Thus, we are left with the need for a more appropriate measure of de facto judicial independence, and in Chapter 4 I will present an alternative measurement that builds upon Howard and Carey’s work.

      The mixed results described above have continued to appear in more recent work. Keith and Poe (2004) found that, as expected, certain provisions for states of emergencies, which have been promoted by international organizations such as the International Lawyers Association and the International Commission of Jurists, have unintended consequences and are associated with increased levels of human rights abuse during most types of internal threat, while under some circumstances other provisions have the intended effect. Our combined model (Keith, Tate, and Poe 2009) again found rather mixed effects for constitutional provisions for bills of rights, judicial independence, and states of emergency, with several provisions producing a beneficial effect, and many producing either no effect or a harmful effect.

      Overall, then, recent empirical analyses suggest that there is some justification for the optimistic expectation that legal provisions for rights and judicial independence (both de jure and de facto) may increase the level of state human rights protections. However, confidence in the generalizability of these results is somewhat constrained by some of the limitations associated with these previous studies. First, none of these studies extend beyond 1996, which limits our understanding in regard to the most of the post-Cold War period. Second, the studies examine a wide range of human rights behavior, but typically each study examines only one type or measure of behavior, and thus the empirical tests are СКАЧАТЬ