Julio Ríos-Figueroa

THE CONSTITUTIONAL ADJUDICATION MOSAIC OF LATIN AMERICA

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.

Institutional Determinants of the Judicialisation of Policy in Brazil and Mexico

This article offers a comparative perspective on judicial involvement in policy change in Latin America during the last decade and a half. Drawing on the literature on new institutionalism and the judicialisation of politics, and on case studies from Latin Americas two largest countries, we propose a comparative framework for analysing the judicialisation of policy in the region. On the basis of this framework, we argue that institutional structure is a primary determinant of patterns of the judicialisation of policy. In particular, institutional characteristics of the legal system affect the way political actors fight to achieve their policy objectives and the kinds of public justifications used to defend policy reform.

Enacting Constitutionalism: The Origins of Independent Judicial Institutions in Latin America

Modern constitutionalism, inaugurated in the eighteenth century by the American (1787-1789) and French (1789-1791) constitution-making processes, assigned to codi fied constitutions a very specific function?to prescribe an institutional framework that would establish guarantees against the arbitrary use of power. However, already in 1800, Napoleons constitution prescribed a personalistic rule that concentrated great power in his hands and formally made him emperor through its revision in 1804.1 When and why can we expect constitution-making processes to produce an institutional frame work that formally serves constitutionalism? To answer this question, a simple and general typology is presented that captures both the legal/political character of constitution-making processes and their dynamic nature. Unilateral constitution-making processes, where a cohesive and organized politi cal group controls the agencies required to amend or create the constitution, are differ entiated from multilateral processes, where at least two different political groups control those agencies. These two types of constitution-making processes are fruitful indepen dent variables that have considerable advantages over other commonly used variables. The hypothesis of this article is that multilateral constitution-making processes tend to establish institutional frameworks consistent with constitutionalism. Taking these types of constitution-making processes as independent variables, and the Latin Ameri can region as the empirical arena, the hypothesis is tested by focusing on some of the most important institutional mechanisms to prevent arbitrariness?independent judicial institutions. The Latin American region makes for a good laboratory for assessing dif ferent explanations for the creation of independent judicial institutions. The countries examined share a common legal heritage, political culture, civil legal system, and presidential regime, but at the same time retain important variations in judicial insti tutions as well as in other political and economic conditions. Based on an original database covering eighteen countries from 1945 to 2005, the analysis shows that au tonomous judicial councils, strong constitutional adjudication organs, and autonomous prosecutorial institutions are more likely to be created by multilateral constitution making processes.

Justice institutions in autocracies: a framework for analysis

ABSTRACT What role do justice institutions play in autocracies? We bring together the literatures on authoritarian political institutions and on judicial politics to create a framework to answer this question. We start from the premise that autocrats use justice institutions to deal with the fundamental problems of control and power-sharing. Unpacking “justice institutions” we argue that prosecutors and ordinary courts can serve, respectively, as “top-down” and “bottom-up” monitoring and information-gathering mechanisms helping the dictator in the choice between repression and cooptation. We also argue that representation in the Supreme Court and special jurisdictions enables the dictator and his ruling coalition to solve intra-elite conflicts facilitating coordination. We provide several examples from Mexico under the hegemonic system of the PRI and of Spain under Francisco Franco, as well as punctual illustrations from other countries around the world. We conclude by reflecting on some of the potential consequences of this usage of justice institutions under autocracy for democratization.

Judicial Independence and Human Rights in Latin America. Violations, Politics, and Prosecution by Elin Skaar (review)

Why do some countries decide to come to terms with their authoritarian past, prosecuting state officials for gross human rights violations, while others pull their punches? Why do trials take place in the aftermath of the transition to democracy in some places, but only after decades in others? This book argues that an active role of courts and judges is key to explaining the upsurge in trials. In particular, reforms that increment judicial independence provide judges with political space and legal “toolboxes” for conducting action in human rights cases. Elin Skaar’s timely book offers nuanced arguments, detailed data on the cases of Argentina, Chile and Uruguay, and a good number of insightful analyses from a renowned socio-legal scholar with vast experience on Latin America and Africa.