The role of constitutional courts in furthering democracy in Latin America

Ondertitel:the cases of Colombia, Costa Rica and Mexico

Do constitutional courts created after the fall of the Berlin Wall (late third democratic wave) promote democracy by enforcing human rights? This question was approached from an empirical perspective. The cases of Colombia, Costa Rica and Mexico were used to observe whether courts have been responsive to rights claims, what factors explain the responsiveness of courts and whether the judicial enforcement of rights has improved democratic performance. The analysis was based on a random sample of judicial decisions on human rights (amparo proceedings) issued since the creation of the courts in the 1990s until 2012. In total, 1 137 amparo judgments were analysed using statistical techniques. The results reflect quite divergent behaviour of the courts when deciding human rights issues across the three countries. A strong commitment to human rights protection can be observed in Colombia (a hybrid regime) and in Costa Rica (a stable democracy) while in Mexico (a hybrid regime) the sample shows a high rate of dismissals and the lowest number of cases in which protection was granted. The findings confirm that a legal opportunity structure is the key factor in explaining the responsiveness of courts to rights claims. In Colombia and Costa Rica, where the rules of admissibility and procedure materialise the right to an effective remedy, the courts respond more assertively to rights claims. In Mexico, in contrast, amparo proceedings are expensive and inaccessible to the population at large due to complex procedures and strict rules. Contrary to what has been argued in previous studies, external factors, such as the economic, political or social context, are not linked to how courts decide. For example, the case of Colombia demonstrated that high levels of violence and political instability did not prevent the court from being highly active in the protection of rights. Finally, the exploratory study of the relationship between the judicial enforcement of rights and democratic performance revealed that courts contribute to democracy to a very small extent. Based on these findings, I argue that constitutional courts in hybrid regimes can be catalysts of democracy. Crucially, a legal opportunity structure is a prerequisite in order to facilitate access to justice. In addition, courts are required not only to decide cases at an individual level, but also to identify structural problems rooted in a systematic violation of rights, adopt a deliberative approach by issuing measures to prevent further human rights violations, pave the way for a public debate with those who were not heard in the decision-making process and implement a monitoring system for the enforcement of judgments open to public scrutiny.

Jaar van publicatie:2022

Trefwoorden:Doctoral thesis

Toegankelijkheid:Open