The Judicialization of Politics in Latin America

314 Pages·2005·29.339 MB·English

by  Rachel Sieder, Line Schjolden, Alan Angell (eds.)

The Judicialization of Politics in Latin America
STUDIES OF THE AMERICAS
Edited by Ja mes Dllnkerley
Institute for the Study ofthe Americas
University ofLondon
School ofAdvanced Study
Titles in this series published by Palgrave Macmillan:
Cuba)s Military 1990-2005: Revolutionary Soldiers during
Counter-Revolutionary Times
By Hai Klepak
The Judicialization ofPolitics in Latin America
Edited by Rachel Sieder, Line Schjolden, and Alan Angell
Characterizing Latin America
By Laurence Whitehead
The Judicialization of
Politics in Latin America
Edited by
Rachel Sieder,
Une Schjolden,
and
Alan Angell
*
THE JUDICIALIZATION OF POLITICS IN LATIN AMERICA
© Rachel Sieder, Line Schjolden, and Alan Angell, 2005.
Softcover reprint of the hardcover 1st edition 2005 978-1-4039-7086-2
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manner whatsoever without written permission except in the case of brief
quotations embodied in critical articles or reviews.
First published in 2005 by
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ISBN 978-0-230-61969-2 ISBN 978-1-137-10887-6 (eBook)
DOI 10.1007/978-1-137-10887-6
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Contents
List of Illustrations Vll
Acknowledgments IX
Notes on Contributors
X
Glossary ofTerms XIV
Chapter 1
Introduction 1
Rachel Siedet; Line Schjolden) and Alan Angelt
Chapter 2
Judicialization ofPolitics: The Chan ging Political Role of
the Judiciary in Mexico 21
Pilar Domingo
Chapter 3
Changing Dynamics: The Political Impact of Costa
Rica's Constitutional Court 47
Bruce M. Wilson
Chapter 4
The Judicialization ofPolitics in Colombia:
The Old and the New 67
Manuel Jose Cepeda Espinosa
Chapter 5
The J udicialization of Chile an Politics: The Rights
Revolution That Never Was 105
Javier A. Co uso
Chapter 6
Judicialization and Regime Transformation: The Venezuelan
Supreme Court 131
Rogelio Perez Perdomo
vi CONTENTS
Chapter 7
Petitioning and Creating Rights: Jl ldicialization in
Argentina 161
Catalina Smulovitz
Chapter 8
Commllnity Ju stice Institlltions and
Ju dicialization: Lessons from Rural Peru 187
lulio Faundez
Chapter 9
Private Contlicts, Pllblic Powers: Domestic Violence
in the Courts in Latin Aruerica 211
Fiona Macaulay
Chapter 10
Constitutionalism, the Expansion of Jl lstice and
the Jl ldicialization of Politics in Brazil 231
Rogerio B. Arantes
Chapter 11
The Transnational Dimension of the Ju dicialization
of Politics in Latin Aruerica 263
Kathryn Sikkink
Mterword 293
Guillermo O)Donnell
Index 299
List of Illustrations
Tables
3.1 Average number of cases presented to the
Sala IV (by case type) 1990-1995,
1996-2001, and 2002 51
4.1 Some controversial decisions by the supreme
court of justice before 1991 71
4.2 The work of the court, 1999-2002 77
4.3 Constitutional amendments overruling the court 78
4.4 Some of the most controversial decisions of
the court-concrete review 80
4.5 The most controversial decisions of the court-
abstract review 85
4.6 Unconstitutional state of affairs: Grave regulatory
and policy failures identified by the court 95
6.1 Output of the supreme court and supreme tribunal,
1997-2003 139
7.1 Case files submitted to the supreme court of
justice, federal courts, and state jurisdictions,
1991-2002 163
7.2 Injunctions presented in federal administrative
courts (federal capital and interior), 2001-2002 166
7.3 Total number of injunctions paid and
amounts, 2002-2004 167
7.4 Actions filed at the Defensoria General
de la Naci6n (National Consumers' Defence
Agency) and at the Oficina Municipal deI
Ombudsman (Municipal Ombudsman's Office) 171
7.5 Number of guestions and claims received at
the Direcci6n de Defensa deI Consumidor
Y Lealtad Comercial (Consumer Defence
and Commercial Loyalty Authority 172
viii LIST OF ILLUSTRATIONS
7.6 Claims tlled at lltilities' reglllatory agencies 172
7.7 Claims tlled in the national courts in the
federal capital based on the enforcement
oflaw 24,417 (January 1995-December 2000) 173
7.8A Constitlltionality and llnconstitlltionality
rlllings and decisions between 1935 and 1995 180
7.8B Pllblic opinion survey ofinstitlltional prestige 180
10.1 Agents allthorized to call llpon constitlltional
courts in Brazil, Allstria, and Germany 239
10.2 Direct actions of llnconstitlltionality, 1988-2003 240
10.3 Direct actions of llnconstitlltionality by
poli tical parties, 1990-2003 242
10.4 Predominant trends in attempts at jlldicial
reform during the FHC (1994-2002) and
Lllla (2003-) administrations 255
11.1 Dynamic mllltilevel governance 268
Figures
7.1 Average amollnt retllrned per injllnction in the
year 2002 167
10.1 Cases distribllted and conclllded within the lower
instance ofthe federal jllstice, 1967-2001 237
10.2 Extraordinary appeals distribllted with the STF,
1990-2003 238
10.3 Cases distribllted within regional electoral courts 247
10.4 Cases distribllted within the lower instance of
labor courts, 1990-2001 247
Acknowledgments
T
he editors would like to extend their grateful thanks to the William
and Flora Hewlett Foundation for the generous support extended to
this project. We also wish to thank our colleagues at the Institute for
the Study of the Americas, University of London, and the Latin
American Centre at St Antony's, University of Oxford for their
support of this joint venture. We particularly wish to thank Olga
Jimenez at ISA for her invaluable worle on the conference and work
shop held in March 2004. Maxine Molyneux and Helga Baitenmann
generously gave of their time and expertise to act as commentators in
the workshop. We are also extremely grateful to Guillermo O'Donnell
for finding time to attend the workshop and for generously agreeing
to writing an afterword for the volume. Cath Collins expertly trans
Iated the chapter by Rogelio Perez-Perdomo, our thanks are due to
her too.