Texas Law Review, Vol. 89, Issue 7 2011 Symposium: Latin American Constitutionalism

Por Jorge Luis Fabra Zamora (jorgefabraz@gmail.com)

Volumen del Texas Law Review, sobre el Constitucionalismo Latinoamericano.


Vol. 89, Issue 7

2011 Symposium: Latin American Constitutionalism


 
Professor Couso examines constitutionalism in the context of “radical democracies.” Although Couso argues that sometimes these governments should not properly be called constitutional, they still sometimes contain institutions that promote traditional constitutional ideals, such as separation of powers, an independent judiciary, and freedom of expression. Couso examines the constitutional history of Chile and, in particular, the role of Chile’s Constitutional Court, throughout its periods of democratization, dictatorship, and democratic transition. In doing so, Couso concludes that a constitutional institution’s behavior is strongly influenced by its political, ideological, and juridical environment.
 
 
Professor Roberto Gargarella explains the tensions and implications of “unequal legal integration,” a scenario where new legal practices confront established legal infrastructure. The most important example of this phenomenon in Latin America is the incorporation of social rights into hostile constitutions...
  
 
In constitutional emergencies, protecting the aspirations of the constitution may require either decisions that restrict personal constitutional rights or temporary suspensions of constitutional procedures in favor of more expedient alternatives. Some contemporary authors address the central issue of creating institutional mechanisms to provide such expediency without irreversibly risking arbitrariness or power concentration by relying on judges to resist any attempts by the executive to restrict individual rights or normal procedures of lawmaking...
  
 
The intensity of Latin American constitutional change since the mid-1980s spawned literature discussing changes in specific countries, certain aspects of Latin American constitutionalism, and the relationship between Latin American reforms and international institutions. Yet, little has been written about the common features of constitutional development in the region. Professor Uprimny attempts to fill this gap by pointing out the common trends and significant differences among recent Latin American constitutional changes, in order to characterize such reforms and to establish the main challenges to the construction of strong democracies in the region...
  
 
In this Article, Professor Bergallo examines recent adjudication of so-called “second-generation rights,” must notably the right to health. Specifically, she examines right-to-health litigation relating to HIV/AIDS treatment in Argentina. Bergallo first analyzes the initial difficulties that Argentina faced in implementing effective HIV/AIDS treatment before tackling the early litigation meant to correct the deficiencies. Bergallo argues that these early cases, most notably the landmark Benghalensis decision, resulted in reform at individual, policy, and societal levels. In contrast, the post-Benghalensis landscape has not resulted in similarly sweeping changes, as courts have preferred to render decisions based on individual inadequacy, not systemic failure. Because of this case-by-case curative decision-making, Bergallo argues that the current inequities that are pervasive in the Argentine health system may have been exacerbated.
 
 
In this Article, Professor Ferraz examines social rights litigation in Brazil. He argues that, although many social rights activists have praised the assertive nature of Brazilian courts in right-to-health litigation, such decisions may have pernicious consequences. Ferraz argues that Brazilian courts have incorrectly interpreted the constitutional right to health in absolutist terms, providing a “maximum health attention.” As a result of this decision, given limited governmental resources, such resources unreasonably favor the litigant minority to the non-litigant majority. Because this minority is constructed mostly of the more privileged members of the country, it strengthens inequalities. Moreover, Ferraz argues that mere enhanced access to courts for the poor will not solve the issue. He asserts that the “inegalitarian ethos” which pervades Brazilian society will make it impossible for Brazilian courts to assertively enforce right-to-health claims in a way that actually attempts to remedy inequality. Instead, he advocates for more effort to change such ethos and less faith placed in social rights litigation...
 
 
During the last two decades, Latin American courts, activists, and scholars have developed legal theories, strategies, and doctrines aimed at fulfilling the promise of socioeconomic rights in contexts marked by deprivation and inequality. For example, in 2004, the Colombian Constitutional Court (CCC) aggregated the constitutional complaints (tutelas) of 1,150 displaced families and handed down its most ambitious ruling in its two decades of existence: Judgment T-025, in which the court declared that the humanitarian emergency caused by forced displacement constituted an “unconstitutional state of affairs,” and the court ordered a series of structural measures that has spawned a remedial process that continues today...
  
 
In this transcript, a former justice of the Colombian Constitutional Court reflects on the court's jurisprudence and offers a typology to categorize its decision making.  He observes that Colombia is characterized by judicial independence, a tendency to decide cases on the structural level, and an active tutela system.  Former Justice Cepeda-Espinoza also reflects on political constraints on judges, including the active economic "techno-bureaucracy." ...
  
 
In this Article, Professors Cheibub, Elkins, and Ginsburg argue that the century or region in which a constitution was written is a better predictor of institutional similarity than its classification as presidential, parliamentary, or semi-presidential...
  
 
Professor Fuentes, “explores the political dynamics responsible for transforming the rules of constitutional reform” in light of the recent democratic transformation of Chile. He concludes that forward-looking decision-making, as one factor of many, can compel constitutional amendments that current literature about constitutional reform does not predict...
  
 
Professor Negretto seeks to explain seemingly contradictory trends in constitutional design in Latin America. Professor Negretto argues that these trends reflect diverse governance problems and the varying interests of those who influence institutional selection. Professor Negretto identifies several reforms “intended to diffuse power and place limits on the partisan or government powers of presidents,” and these are contrasted with other reforms...
  
 
Ms. Andrea Pozas-Loyo and Professor Julio Ríos-Figueroa argue that the design of existing institutions and the political leverage of actors that do not participate directly in constitutional reform may exert an important influence on the design of institutions created by amendments. In doing so, they challenge the assumption that constitution-making processes are and must be extraordinary and are unrelated to motivations and decisions that characterize ordinary politics. The authors explain the pervasiveness of this assumption by pointing out that it is rooted in a focus on the creation of new constitutions and overlooks the process and politics behind amending existing constitutions. Pozas-Loyo and Ríos-Figueroa contend that because of this, the design of institutions through amendments will be influenced by variables that do not regularly figure in the analysis of constitution-making, and as such, the more institutional power and political leverage actors have, the more likely such amendments will reflect their interests...
  
 
Judge García-Sayán lauds the influence of the Inter-American Court on domestic Latin American judicial systems. Domestic courts of Latin American countries serve not only as guarantors of the international obligations of states, they also legitimize and revitalize the rule of law by harmonizing international standards and their domestic law. Four examples demonstrate this advance: amnesties, investigation of human rights violations, the right to an effective remedy, and rights of indigenous peoples...
  
 
In this Article, Professor Madrazo and Ms. Vela explore recent cases decided by the Mexican Supreme Court involving sexual and reproductive rights to better understand the development of the court as a constitutional arbiter following constitutional reforms enacted in 1994, which began the Ninth Era of the Supreme Court. Prior to the reforms, the court decided cases, but laws held unconstitutional were simply inapplicable to successful challengers. Following the reforms, the court was able to strike down unconstitutional laws for the first time. Although initially limited to conflicts between political classes, the court has taken on an increasing number of cases concerning citizens directly...
  
 
Professor Alviar García examines land distribution in Colombia, arguing that changes in legal theory, interactions among legal regimes, and economic-development ideas account for land concentration despite the constitutional and legal provisions that weigh against this concentration.  She concludes that new forms of property, including environmentally-protected areas, collective property for indigenous groups, and informal possession, have met resistance from rigid, 19th century understandings of property.  Administrative and judicial hurdles and biases toward industrial development have inhibited broader distribution of land in Colombia.
 
 
Professor Azuela responds to a critical lack of contemporary constitutional scholarship concerning property rights in Mexico.  He argues that current problems affecting property rights in Mexico stem from a variety of social and political issues, including eminent domain and the tragedy of the commons.  Given this variety, theoretical models are often lacking, so Professor Azuela proposes a research agenda that will address weaknesses, account for the constitutional and social-science dynamics of the debate.
 
 
Professors Brinks and Forbath reflect on the symposium contributors' analysis of social rights jurisprudence and related constitutionalism.  They identify pressing, unanswered questions concerning separation of powers and justiciability of disputes involving social and economic rights (SER).  Threshold questions, such as whether a particular dispute can be litigated, seem to be taken for granted as SER decisions become more wide-ranging in application...
  
 
Professor Engle comments on Alviar's analysis of property regimes in Colombia and Azuela's analysis of the same in Mexico.  She begins by noting the difficulties with identifying a locus of comparative analysis and potential distortions arising from the selection of symposium authors.  Next, Engle argues that while both Alviar and Azuela identify an impulse toward redistribution, regimes in Colombia and Mexico also protect private property rights, and she explicates the tension between these impulses.  This tension has largely inhibited widespread redistribution of property.  According to Engle, this tension is also between a communal and individual conception of rights.  Next, Professor Engle also identifies a tension between these articles as to whether these land issues are beyond the law or part of the law itself.  
 
In conclusion, Professor Engle recognizes that these articles offer helpful insight for attending to distributional issues and degradation in the region.  
 
 
Professor Victor Ferreres Comella identifies a theme from the Constitutional Review panelists, namely "Courts in Latin America and the constraints of the civil law tradition."  He views the panel's identification of the structural limitations on courts as on point but wonders how best to account for the limited respect for precedent in Latin America, as against the constitutional values of certainty and equality.  Abstract review guards against the weak nature of precedent, but there has not been a systematic study to date of this review mechanism in practice.  Also unanswered is how judges approach abstract review and whether they treat matters differently depending on their scope.  Systematic analysis is also lacking with respect to the judicial practice of reconstructing problematic statutes.  Consideration of these issues, according to Professor Victor Ferreres Comella, would advance the academic conversation. 
 
 
Professor Hartlyn identifies a research agenda in response to symposium contributions about constitutional structures in Latin America.  He wonders what the proper analytical focus is for understanding presidentialism in the region.  He sees value in a comparative case study which examines the structure and function of presidential powers, including budgetary authority.  Professor Negretto's article fills some of the gap with its systematic empirical analysis of convergence of executive functions across several dimensions.  Hartlyn concludes that regional politics in Latin America is as much about the rules as political conflict associated with them.
 
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