UCF Comparative Judicial Process: Latin American Rights Revolutions Study Notes

UCF Comparative Judicial Process: Latin American Rights Revolutions

Recap

Charles Epp – The Rights Revolution

  • Conventional Ideas

  • Constitutional Guarantees

    • Important for framing rights within jurisdictions.

  • Judicial Leadership

    • Role of judicial authorities in promoting rights.

  • Culture and Popular Rights Culture

    • Societal attitudes toward rights and the law.

The Structural Support Model

  • Shift from Business Litigation to Individual Rights Issues

    • Focus on individual over corporate interests.

  • Where Are the Lawyers Working?

    • Geographic and thematic distribution of legal practitioners.

  • Development of NGO’s

    • Growth of non-governmental organizations that support rights.

  • Increase in Law Schools and Lawyers

    • Notable rise in legal education institutions and practitioners.

  • Increased Legal Services Support

    • Expansion of resources available for legal assistance.

  • Increased Federal Government Role

    • Government’s involvement in promoting rights and judicial processes.

  • Symbiotic Relationship of Judicial Activities and Interests

    • Interaction between judicial functioning and societal needs.

Aspirational Constitution

  • Definition: A creative, political foundation connecting the country’s origins with its society and its aspirations for the future.

  • Function: Used to ratify, adjust, or amend specific political realities.

  • Nature: Voluntarist; derives from public authority and consent.

  • Objectives: Often maximalist, creating a new protective legal culture and asserting positive rights while allowing for judicial activism.

  • Context: May arise during times of social unrest; often the gap between aspirational goals and societal reality is stark.

Group Presentations

  • Outline and prepare to present:

    • Role, composition, and actions of constitutional courts.

    • Independence and interaction with other branches and the public.

    • Access to courts and structural support elements.

    • Political opportunity structures and constitutional moments.

    • Evaluation of Epp’s conventional models.

    • Comparative analysis of the U.S. and other cases.

Questions to Consider

  • Does the increasing power of the judiciary lead to an individual rights revolution? Why or why not?

  • Does the source of increased interest in the judiciary matter?

Case Studies: Colombia

  • Intrastate Violence

    • Significant factor in Colombia's constitutional evolution.

  • 1991 Constitution

    • Marked an increase in judicialization; political response to a previously dysfunctional political system.

  • Actio Popularis Action

    • Allows citizens to challenge governmental actions since 1910, enhancing access to the courts.

  • Judge Appointments

    • Judges selected from a list by the legislature; a remedy to authoritarian legacies.

    • Non-renewable 8-year terms for judges, enhancing independence.

Access to Courts in Colombia

  • Writ of Protection (Accion de Tutela)

    • Enables any individual to claim protection of constitutional rights.

  • Constitutional Review Mechanisms

    • Examination of constitutionality of laws and bills.

  • Commonality of Citizen Claims

    • Demonstrates active civic engagement in the legal system.

Factors Influencing Judicial Independence in Colombia

  • High number of lawyers and a robust legal culture.

  • Flawed political systems prompting citizens to seek alternative resources.

  • Courts are increasingly sensitive to human rights considerations due to historical violence and unrest.

Case Studies: Costa Rica

  • Creation of Sala IV (Constitutional Court) in 1989

    • Triggered by constitutional amendments in response to corruption and economic fears.

  • Role of Sala IV

    • Functions as a constitutional chamber within the national Supreme Court; enhances access to legal recourse.

Historical Context of Rights in Costa Rica

  • Many rights enshrined in the 1949 constitution but poorly enforced due to:

    • Inadequate legal training and socialization of legal processes.

    • Civil law deference and excessive focus on legal procedures.

Judicial Independence in Costa Rica

  • Legislative requirements for prohibiting automatic term renewals of judges.

  • Sala IV delivers binding, unappealable decisions, showcasing its authority.

  • Judicial Access: Includes habeas corpus rights and mandatory congressional consults for constitutional matters.

Strategic Legal Changes in Costa Rica

  • New court establishment seen as an opportunity for advocacy.

  • Sala IV's willingness to challenge legislation marked a shift of power towards litigants and minority groups, illustrated by the 2003 presidential decision case.

Case Study: Mexico

  • Judicial Role Changes

    • Shift towards a more political role for the high court; judicialization does not automatically equal a rights revolution.

  • Judicialization Defined: Increased influence of the judiciary in lawmaking and social control, serving as arbiters in political conflict.

Historical Background of the Mexican Judiciary

  • Long tradition of non-intervention in political issues; effect of the “rule of law” on legitimacy.

  • Constitutional Moment: Reforms in 1994 and 1996 providing new appointment processes and mechanisms for laws’ constitutionality examination.

  • Increased activism and independence of the judiciary.

Structural Changes Under Mexican Constitutional Reforms

  • 1994 reforms introduced a system requiring 2/3 of the senate's approval for judicial appointments.

  • Legislative packages aimed at increasing constitutional review responsibilities, translating to growing independence from executive influence.

  • Public Transparency and Education: Initiatives undertaken to promote judicial transparency were slow to yield results.

Global and Internal Influences on Judicialization in Mexico

  • Rising corruption, economic challenges, and globalization pressures prompted a pivot to enhancing the rule of law.

  • International human rights obligations were reinforced through instruments like NAFTA, affecting judicial attitudes.

Overarching Trends in Judicialization

  • Increased court power does not invariably result in greater individual rights; rather it leads to diminished authority for other governmental branches.

  • Important to discern the catalysts that activate judicialization and its effects on regime legitimacy.

    • Support Structures: Legal culture, access to justice, and political architecture play crucial roles in understanding changes in rights provisioning.

International and Transnational Effects

  • Social Movement Shopping: Participation across various international human rights endeavors and frameworks.

  • Typologies of Domestic and International Opportunity Structures:

    • Closed international/closed domestic: Minimal actionable opportunities.

    • Closed international/open domestic: Defensive legal strategies.

    • Open international/closed domestic: Dependency on external influences.

    • Open international/open domestic: Partnerships with both domestic and international entities to promote rights advancements.