(STILL) A SYSTEM OF CHECK AND BALANCES? DEVELOPMENTS OF AND CHALLENGES TO THE SEPARATION OF POWERS III
Panel formed with individual proposals.
Intense forms of judicial activism have emerged in Latin American (LA). Judges dictate Structural Remedies Decisions (SRDs) ordering to create, design, and implement public policies to redress structural human rights violations. In a region marked by judicial instability, SRDs can be seen as strong challenges to government and, thus, prompt retaliation. They can also damage judges' reputation as they might be criticized by influential conservative groups opposing progressive structural reforms. What drives judges to pursue or avoid this kind of risky activism? I propose the Equilibrist Approach, an alternative model to standard judicial behaviour accounts in LA. It incorporates the legitimacy building dimension of the strategic game and predicts some level of assertiveness, but one that is careful about elites' preferences and those of the mass public and opinion leaders. I use the institutional fragile Argentine Supreme Court to test the model
In 2018, the Brazilian Supreme Court heard a historic Habeas petition related to a criminal proceeding in which former President Lula was sentenced to a term of incarceration. One vote in particular, and its main argument, was especially noteworthy. Judge Weber decided not to decide: although she believed the Brazilian Constitution was clear that no one could begin serving a prison sentence until all appeals were exhausted, in the name of the principle of collegiality, she would override her personal understanding to follow a precedent allowing immediate imprisonment. This paper critically examines the content and the interpretative extent of the notion of judicial collegiality, as a value used to establish adequate reasoning practices in a court‘s deliberations. From the perspective of horizontal stare decisis, interpreted under Dworkin's theory of integrity, it attempts to answer the question: Is it legitimate, in light of the collegiality principle, to decide not to decide?
Recently there have been discussions regarding how popular constitutionalism might have significance for global south countries, including those in which constitutionalism is extremely court-centric. Using the example of perhaps the most court-centric jurisdiction, India, this paper intends to show how popular constitutionalism can work outside countries that lack the global north's strong constitutional culture. Additionally, this paper will also discuss the potential challenges that popular constitutionalism might encounter when operating in jurisdictions like India and the role constitutional courts would occupy in a new regime where constitutionalism is no longer court-centric. As mounting empirical evidence is pointing to the inability of courts to protect the virtues and institutions of constitutional democracy, inquiries such as the one conducted in this paper are vital if the ultimate goal is to realize the potential of constitutional democracy in the global south.
In view of the activist posture verified in the field of the Judiciary, it became necessary to give legitimacy to that decision that, in principle, the subject should be the object of deliberation by the Legislative. In this sense, public hearings show themselves as a technical instrument that, with the introduction of the contradictory in the concentrated constitutional control through social participation, can be considered a mechanism of legitimacy of the decisions made by the Ministers of the Supreme Court. However, it is questioned about this legitimating function, considering that it can prove to be a legitimation tool, in the event that public hearings are seen as a merely formal instrument of participation. Indeed, in order to fully verify their legitimating function, it is essential that Ministers base their votes on the arguments presented by the participants of the public hearing, so that it becomes an effective mechanism of democratic legitimacy via popular participation.
This paper develops a typology of threats to the legitimacy of judicially led transformative constitutionalism. This is necessary because courts in India, South Africa, and Colombia are increasingly criticized due to their adjudication records being incapable of responding to systemic material deprivation with recalcitrant government authorities. These threats, if not engaged with in a rigorous manner, threaten to undermine both the legitimacy and effectiveness of transformative constitutionalism, escalate inter-branch tensions and consequently expend the courts‘ limited institutional capital. The typology, which is organized along doctrinal/interpretive, sociological, and institutional dimensions – most of which usually tend to vary across time - has implications not only on doctrinal coherence and the perceptions of the role of courts across the polities under study, but also their relationship with the coordinate branches as agents in the process of social transformation.