Enacting Constitutionalism: The Origins of Independent Judicial Institutions in Latin America (original) (raw)
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Latin American countries have been riding a massive wave of constitutional change since 1978. One aspect of the political institutions selected as a result of this process seems particularly puzzling. Reforms that promote party pluralism and consensual decision making coexist, often within the same design, with other reforms that restrict party competition and foster concentration of power in the executive branch. This Article argues that constitutional choice is endogenous to the performance of preexisting constitutional structures and to the partisan interests and relative power of reformers. According to this theory, the seemingly contradictory trends of design that we observe in Latin America reflect (i) the diverse governance problems faced by new democracies and (ii) the heterogeneous interests of the actors who had influence over institutional selection. The Article provides evidence in support of this theory from the recent experience of constitution making in Latin America.
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This report seeks to describe and analyse key features of constitution-building and reform processes in 18 Latin American countries during the period 1978-2012. The report, written by Gabriel Negretto, consists of four chapters covering constitution-making procedures, executive powers, citizen rights and constitutional justice, and participatory institutions. Each chapter was originally conceived as a discussion paper for participants in an international seminar, entitled 'Constitution-Building Processes in Latin America', held on 21-22 October 2015 in Santiago de Chile. The seminar was organized by the General Secretariat of the Presidency of Chile, International IDEA and the University of Chile Law School. The chapters take a comparative approach to constitution-building experiences in Latin America, with the central objective of informing deliberations on the creation of a new constitution in Chile. The Annex contains a concluding essay, authored by Javier Couso, which builds on the topics discussed in this report to analyse the constituent process currently underway in Chile. The Chilean case serves as a reminder that constitution-building processes are deeply political affairs, in which correlations of power, strategic behaviour, and even sheer luck, play important roles. Thanks to Sumit Bisarya for his comments and suggestions during the writing of this work, and to the participants at the seminar for their feedback on the different papers distributed for discussion. Thanks also to the International IDEA Publications team for their support in the editing of the text.
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ABSTRACT This paper proposes a theory that explains how political transitions deal with incumbent judiciaries. We argue that a new political regime compares the benefit of reshaping the judiciary with loyal appointees against the political and economic costs of directly interfering, including the cost of international reputation. There are several forms of interventionism including court packing, court purging, and violence against the judiciary.
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*This paper is a part of a much larger project on the institutional and political foundations of regime performance in Latin America. I presented an earlier version of this paper as the "Herbert-Krüger-Gedächtnis-Vorlesung" at the "Arbeitskreis für Überseeische Verfassungsvergleichung", held in Mainz on 25-6 June 2005. I thank conference organizers for their kind invitation and thank working group members for their comments. I also acknowledge the Alexander von Humboldt Foundation for support and the Institut für Iberoamerika Kunde in Hamburg, Germany, for its hospitality during the 2004-5 academic year. I thank Gabriel Negretto for his remarks on an earlier version. Comments are welcomed.
The recent transformation of constitutional law in Latin America: trends and challenges
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Since the mid-1980s, Latin America has seen an intense period of constitutional change, as almost all countries either adopted new constitutions (Brazil in 1988, Colombia in 1991, Paraguay in 1992, Ecuador in 1998 and 2008, Peru in 1993, Venezuela in 1999, and Bolivia in 2009, among others) or introduced major reforms to their existing constitutions (Argentina in 1994, Mexico in 1992, and Costa Rica in 1989). The new Brazilian constitution of 1988 can be viewed as the starting point of this phase of reforms, which is still developing. Obviously there are important national differences. However, despite these national differences, this wave of constitutional reforms in Latin America seems to have some common features. Despite the intensity of the recent constitutional changes in Latin America, I know of no text that has tried to systematically examine the common features of the development of constitutionalism in the region. There are important reflections on the constitutional evolu...
Sciences Po, 2018
In the context of Latin America, the current acceptance of judicial review as a normal feature of a democratic state remains evident by the turn of the century as most countries in the region adopted (publically institutionalized) forms of judicial review and constitutional control (Carrol and Tiede, 2011). The following analysis reviews two distinct cases within the region with similar sociocultural backgrounds yet with distinct judicial and constitutional frameworks and trajectories informing the respectively different mechanisms for control. The analysis outlines the relationship between judicial review and democratization within a historical-structural examination. Chile offers an excellent case to review the development of judicial review and capacity in the context of democratization after the seventeen-year authoritarian regime under General Augusto Pinochet. Chile underwent massive reforms under the Pinochet regime, including the approval of a new political constitution in 1980, which redrew the obligations and organization of the judiciary with respect to the governing contingency. Since then, the Chilean judiciary along with the ‘independent’ Constitutional Tribunal (Tribunal Constitucional de Chile) provides a useful case study with which to better understand the relationship between institutions and judicial review behavior. Chile’s democratization process is an abrupt transition from complete authoritarianism to an electoral regime as compared to what scholars consider the tepid democratization process in Mexico (Ginsburg, 2016; Magaloni 2006). Mexico’s constitutional framework has outlined mechanisms of judicial review since drafted after the Revolution in 1917. Nevertheless, only after a few recent constitutional reforms could mechanisms of judicial control function properly—with the Mexican Supreme Court (Suprema Corte de Justicia de la Nación) gaining a form of renewed legal legitimization (Ginsburg, 2016). This increase in judicial capacity and control coincided with the demise of the seventy-one-year illiberal hegemony of the Institutional Revolutionary Party (Partido Revolucionario Institucional). In sum, the proposed text focuses on addressing the issue of causality between the development of judicial review mechanisms and transitional regimes in a Chilean and Mexican context.
THE CONSTITUTIONAL ADJUDICATION MOSAIC OF LATIN AMERICA
Comparative Political Studies, 2005
This article maps current constitutional adjudication systems in 17 Latin American democracies. Using recent theoretical literature, the authors classify systems by type (concrete or abstract), timing (a priori or a posteriori), and jurisdiction (centralized or decentralized). This approach captures the richness and diversity of constitutional adjudication in Latin America, where most countries concurrently have two or more mechanisms. Four models of constitutional adjudication are currently in use. In the past, weak democratic institutions and the prevalence of inter partes, as opposed to erga omnes, effects of judicial decisions, prevented the development of constitutional adjudication. Today, democratic consolidation has strengthened the judiciary and fostered constitutional adjudication. After discussing the models, the authors highlight the role of the judiciary in the constitutional adjudication bodies, the broad range of options existing to initiate this adjudication process, and the prevalence of amparo (habeas corpus) provisions.