INTRODUCTION
The creation of constitutional courts is commonplace in contexts of democratic transition. The conception of courts as central elements in the consolidation of democratic regimes can be attributed to the work of the German Constitutional Court after the Nazi regime.1 Since then, a court-centered model of democratization and transitional justice has developed and consolidated. At the heart of this model is the idea that, when asked to adjudicate, the courts would sentence in favor of democratic governance.
There is a direct relationship between the prescriptions of courts as central instruments in the consolidation of new democracies and what is meant by democracy. In the context of the Third Wave democracies, a consensus around liberal democracy prevailed, which meant an association between representative democracy and liberal market economy. This regime is characterized by the existence of periodic, free and universal elections and the rule of law, with formal equality before the law, protection of civil and political rights, and individual freedoms.
Courts would promote the consolidation of liberal democracies by affirming central requirements for these regimes. Through adjudication, they could grant the protection of individual rights, limit state power, and achieve a balanced electoral dispute. Add to this, a contemporary role, consistent with the double character of liberal democracy: that of promoting stability and predictability in the interpretation of the law, to attract investments.2 Under the auspices of a broad legal and judicial reform program promoted by the World Bank, this “predictability” represented the adoption of a specific conception of neoliberal economic policy in which the role of law would be to restrict governments and facilitate trade.3
Expectations about this dual role justified the promotion of judicial empowerment in new democracies. However, decades after the start of the Third Wave, and in the face of a crisis of democracy, an analysis of the jurisprudence of courts in Brazil and in Argentina reveal a less convincing performance of its democratizing role, than initially suggested.
We aim, therefore, to evaluate how much the result achieved by the courts in the new democracies of Brazil and Argentina is consistent with the justifications and expectations related to their adoption. That is, the extent to which adjudication has helped mitigate the weaknesses of new democracies, or whether, contradictorily, it has reinforced their pathologies. The hypothesis is that, in analyzing its two fronts: the protection of civil and political rights and individual freedoms and the consolidation of non-interventionist economic policies, we can see that the performance of the courts does not match the high expectations of the model of court-centric democratization. As a result, we find that the jurisprudence of the constitutional courts in Brazil and Argentina reveals inconsistent performance in the consolidation of democratization jurisprudence.
1. ORIGIN, CONSOLIDATION AND PURPOSE: TRANSITIONAL JUSTICE AND STUDIES ON DEMOCRATIZATION
The end of the twentieth century saw a democratic expansion known as the “third wave of democratization.”4 According to Huntington, the transitions to democracy - which he conceptualizes in a procedural manner – that occurred in the last quarter of the twentieth century formed a wave that spread globally, reaching Latin America, Eastern Europe, and anti-colonial struggles in Asia and Africa.5
The field of transitional justice developed in response and parallel to this phenomenon, aiming to solve practical dilemmas associated with political transitions to democracy.6 Transitional justice was presented as a set of eminently political problems, whose solutions would be of legal-institutional character, and therefore, short-term.7
A foundational, constructive, and transitional role was attributed to Law, which maintained strong control over the narrative of the field in its early days, through references to several of its branches, such as International Criminal Law, International Human Rights Law, and Humanitarian Law.8 However, especially because of the normative goal of promoting transitions to democracy, transitional justice has gradually consolidated as an autonomous field, distinct from International Human Rights Law, and expanded with interdisciplinary concerns from other fields of the human and social sciences, such as psychology.9
Transitional justice can be described as “[…] the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.”10 Among these mechanisms, which may be judicial or extrajudicial, the reparation of victims; the search for truth; accountability of human rights violators; and institutional reform have been established as the main ones.11
The ideal of a “transition to democracy” was decisive in understanding the political changes at that time.12 Thus, concerns about the relationship between democracy, democratization and transitional justice have been present since the early days of the field’s inception. According to Mihr, although transitions to a democratic regime without the adoption of transitional justice instruments are possible, these measures contribute to the strengthening of democratic institutions under construction and, consequently, to enhancing the quality of democracy. Accordingly, transitional justice would bolster civic trust by increasing the responsiveness of institutions to popular demands. This generates a positive reinforcement, in which citizens approach and use official ways of resolving conflicts, promoting adherence to democratic institutions through frequent and reiterated use.13 Thus, they are reinforced by having their legitimacy established by participation.14 The degree of strength and quality of the democratic regime is linked, for example, to the restoration of trust in the judiciary, inasmuch as the courts, through adjudication, affirmed a central principle to liberal democracies: the protection of the rights of individuals vis-à-vis the state.15
Comparative theories of democratization, as well as of transitional justice,16 reinforce the correlation between law and democracy, emphasizing the need to establish the rule of law to support democratic regimes, and the need for judicial reforms to promote the rule of law, in a self-enforcing cycle.17 In this sense, a model of democratization that places the creation of constitutional courts as essential for democratic orders has developed; that is, a court-centric model.18 Despite this emphasis, critical views of the correlation between courts and democratization gained traction.19
Underlying the defense of courts as indispensable democratizing “technology” is a specific paradigm of democracy, which justifies this choice. In order to evaluate the role of constitutional courts in democracy-building, such paradigm must be investigated.
In the Third Wave countries, democratization “was as much about securing fundamental rights as about restoring elections and democratic procedure.” With the ideals of autonomy and human dignity at the center of the contemporary conception of democracy, guarantees of individual rights, such as privacy, freedoms of expression and assembly, physical integrity, due process, are deemed necessary, and not just the right to vote. 20
Rule of law has come to be understood as central to legitimacy and justice in a democracy. Its electoral angle is insufficient. Given the experience of regimes unlimited by law, there has been a growing consensus on the value of liberal concepts such as “rights” and the rule of law. The idea that democratic governance must be based on principles such as “consistency, security, continuity, public accountability and due process” gained ground.21 The fields of democratization and transitional justice overlap in this point.
The experiences of the Third Wave democracies became the guiding line in the conformation of transitional justice. In the face of these commitments, a strictly Schumpeterian model of electoral democracy was overcome and a conception of liberal democracy became dominant in the field.
As Macpherson warns us, however, the term “liberal democracy” is associated with two distinct meanings, which for much of their existence have been combined, as if they were inseparable. The first meaning is that of a democracy in a capitalist market society, even if modified by the concept of the Welfare State. The second refers to a society in which all its members are equally free to realize their capabilities. According to the author, the “market” view has prevailed, with the frequent association between “liberal” and “capitalist.”22 Macpherson lists the observable characteristics, in practice and theory, of those countries to which the title of “liberal democracy” would be attributed, at the end of the twentieth century:
Governments and legislatures are chosen directly or indirectly by periodic elections with universal equal franchise, the voters’ choice being normally a choice between political parties. There is a sufficient degree of civil liberties (freedom of speech, publication, and association, and freedom from arbitrary arrest and imprisonment) to make the right to choose effective. There is formal equality before the law. There is some protection for minorities. And there is general acceptance of a principle of maximum individual freedom consistent with equal freedom for others.23
Functions that refer to almost each of these requirements have been attributed to constitutional courts in new democracies: defining the framework of the electoral race,24 arbitrating disputes between branches of government,25 horizontal accountability of governments,26 securing individual rights, and consolidating the rule of law.27 In short, activities that, while not central to their work in mature democracies,28 would bring nascent democracies closer to what has been called a liberal democracy.
For Ruti Teitel, transitional justice is a conception of justice associated with periods of political change, implemented through primarily legal instruments, in order to deal with violations committed by a previous oppressor regime.29 Establishing a normative standard for regime liberalization - the need to deal with human rights violations - the author’s focus is to re-establish the rule of law through legal responses such as constitutionalization.30 Teitel bases her argument on the potential of law to shape political changes through transformations in normative conceptions and supports the centrality of constitutional courts in the transition, because they can affirm a central principle for liberal democracy: that of protecting individual rights, limiting the power of the state.31
Constitutional courts have, therefore, become not only mechanisms of democratization, but emblems of liberal democratic regimes. With new international bodies, such as the Venice Commission, at the forefront, the understanding that strong courts are central to building democracies and the view that a “democratic, judicialized and cosmopolitan liberal constitutionalism, was the only option for the new democracies,”32 gained traction. All of this was influenced by a liberal consensus which “designates the matrix of liberal, representative democracy and liberal market economy which has been championed in international politics and development cooperation since the 1980s.”33
Transitional justice and democratization scholarships are value-bound not only by having an idealized vision of liberal democracy as their normative goal, but also by contributing to the legitimization of the economic complement of existing liberal democracies, that is, market economy, for the most part, of neoliberal character.34 Constitutional courts are understood as technologies capable of promoting liberal democracies, within the matrix that seeks to combine provisions in non-interventionist economic policy and the protection of individual rights and democratic governance. Therefore, we ask, in the light of its jurisprudence, to which of the senses - if not both - the courts effectively contributed.
3. CONSTITUTIONAL COURTS: BETWEEN ECONOMIC POLICY AND THE CONSOLIDATION OF RULE OF LAW.
Ran Hirschl investigates the origins and political consequences of judicial empowerment through constitutionalization and transfer of power from representative institutions to the Judiciary. He challenges approaches that portray the adoption of the bill of rights, as well as the establishment of strong judicial review, as a mere consequence of progressive changes in political and social conceptions, and an uncritical adoption of human rights.35
Hirschl develops a “thick” strategic explanation for the causes of judicial empowerment. Under the term “hegemonic preservation thesis,” the author argues that judicial empowerment through constitutionalization stems from the strategic interaction of three elites. The political elites, threatened in their hegemony, seek to preserve or increase their power, removing decision-making processes from the scope of democratic deliberation and its uncertainties; the economic elites who see in the constitutionalization of economic freedoms the possibility of guaranteeing a neoliberal agenda of free market and economic deregulation; and judicial elites and justices of supreme courts, who aim to increase their political influence and international reputation.36
Constitutional rights litigation, he argues, has a very limited ability to advance notions of distributive justice. However, with regard to the so-called “negative freedoms” associated with the protection of individual autonomy, as well as with the advancement of neoliberal economic policies - both aspects of an expansion of the private sphere - courts have more protective tendencies.37
In a distinct but complementary approach, Tom G. Daly discusses the concept of “democratization jurisprudence,” focused on attaining a minimum democratic structure in which basic freedoms of association, information, and of communication are protected, underpinning the functioning of a competitive and inclusive electoral system;38 that is, in establishing a functional political democracy and incorporating elements of transitional justice.39
In transitional contexts, courts must make fundamental decisions regarding constitutional meanings and, in addition to entrenching the new rules, they must also displace the old authoritarian rules.40 The democratization jurisprudence involves eight intertwined lines of action:
(i) Facilitating the creation of a democratic public sphere
(ii) Mediating the shift from an undemocratic to democratic order
(iii) Carving out a role for the court in the new democratic order
7. Delineating the Court’s jurisdiction
8. Addressing crises.41
Although it is not necessary for courts to deal with each and every one of these aspects so that their activity promotes democratic consolidation, it is understood that they will fail in their scope if, among other aspects, they do not protect basic democratic, civil and political rights, ensuring expansive interpretations of its scope.42 As Scheppele relates, on the Hungarian case, a minimalist view of democracy is insufficient in terms of the expectations of the citizens of new democracies. In these contexts, a strong vision of the protection of individual rights, “a substantive set of rights to be treated decently and with respect”43 is associated with democracy.
There are indications, however, that despite the expectations, courts have not always committed themselves to their role of democratic consolidation. Although with different approaches, both Daly and Hirschl, analyzing the jurisprudence of constitutional courts, are skeptical of the protection of constitutional rights in the face of violations by the State. Exploring decisions of the constitutional courts in Brazil and Argentina, focusing on the first two decades after the respective transitions to electoral democracies, reveals a performance that goes back and forth between the meanings of “liberal democracy” – the adoption of liberal economic policies and the protection of personal autonomy and liberties - often, protecting one in detriment of the other.
3.1. Brazil
The Brazilian Supreme Court (STF) became more activist during the twenty years after the redemocratization of Brazil, and the resulting jurisprudence is a mixture of decisions that contribute to and hamper democratic consolidation. Daly reveals the way in which the Supreme Court issued decisions on the different fronts of democratization jurisprudence.
Regarding the mediation of the change to a democratic order, in the “ADI 293,” which referred to the reissue of Provisional Measures (MP) by the Executive, the court decided against the reissue of MPs of equal content, after its rejection by the Legislative, thus limiting the power of the Executive.44 However, in judging “ADI 2,” referring to the status of laws prior to the 1988 Constitution -many of them issued during the Military Dictatorship, due to the authoritarian legality adopted by the regime45 - a technical approach prevailed, according to which it would not be possible to apply judicial review to these laws, which meant maintaining the laws of the authoritarian period, undermining the task of disentrenching the dictatorial normative order. 46
Concerning the strengthening of the public sphere, in judging “ADI 1969,” of which the object was a regulation that, in practice, prohibited protests in the Praça dos Três Poderes, in Brasília, the STF declared the unconstitutionality of the decree for violating the right of assembly and expression, with votes that denounced the authoritarian past and the maintenance of these tendencies in new democracies.47 The object of “ADI 1351” was the stipulation of an electoral threshold in the 1995 electoral law. If applied, only seven, of the then 29 existing parties, would survive after 2007. The device was declared unconstitutional, with arguments of violation of minority and individual rights, and the need to safeguard political plurality against a “dictatorship of the majority.”48 Finally, in ruling “RE 511.961,” referring to an excerpt from the Press Law, the Supreme Court ruled unconstitutional the requirement of a diploma for the exercise of the profession of journalist, as it implied a violation of professional freedom and, by the nature of journalism, freedom of expression.49
After this last decision, the STF further declared the unconstitutionality of authoritarian period laws on three other opportunities. A favorable scenario seemed to have emerged to challenge the amnesty law, also considering the international scenario, in which Chile, Argentina, and Uruguay had reinterpreted or annulled its laws. “ADPF 153” was proposed by the Federal Council of the Brazilian Bar Association, questioning the amnesty of crimes systematically committed by public agents during the dictatorship regime, against its opponents.
The suit put the STF in the center of the direction of the 1988 constituent project. Within the framework proposed by Daly, the ADPF judgment included a series of functions attributed to democratization jurisprudence, such as mediating the transition to a democratic order, articulating the relationship between the old and the new constitutional order, dealing directly with authoritarian legislation, and it represented an important transitional justice initiative.
The option for a concentrated control mechanism, however, is worthy of some criticism, since the decision of the STF would entail the blocking of all the debate on the subject that could occur through diffuse control.50 These considerations are especially burdensome considering that, in fact, the STF maintained the law, interpreting it as a “meta-constitutional” agreement that guaranteed impunity for human rights violators.51
The cases illustrate that there is no way to predict how a court will behave in the face of the task of (re)building democracy, and that its decisions can promote or undermine democracy. Addressing the STF’s action in light of the proposal for a democratization jurisprudence, reveals that there is no guarantee that constitutional courts will adopt an expansive interpretation of citizens’ rights in the new democracies or that they will act to curb advances in attempts to concentrate power.
Considering the simultaneity between redemocratization and the adoption of neoliberal economic policies in Latin America, it is interesting to evaluate how the courts behaved in the face of the judicialization of economic policy, especially if we recall Macpherson’s warning about the meanings of “liberal democracy.”
Diana Kapiszewski reports that, from the 1980s onwards, various social and political actors in Latin America turned to the courts as a new location for challenging economic policies. The author describes the concurrence of the democratic transitions and the transitions to a neoliberal economic model, with the adoption of programs of economic stabilization and structural adjustments. The reforms were largely unpopular and in some cases, unconstitutional, which led them to being challenged judicially.52
This situation led to different patterns of interaction between the branches of power, more volatile in Argentina and more cooperative in Brazil, regarding economic policy. The STF assumed a cooperative, “middle ground” position, having supported government policies in ten cases, and challenged them in another ten.53
A more careful look, however, shows some relevant information about the content of decisions. All cases concerning monetary policy, for example, were judged in the government’s favor. In “ADI 4,” it was judged that the constitutional rule provided for in article 192, paragraph 3, which limited the interest rate to 12% would not be effective until the subsequent creation of a law regulating it, effectively rendering the constitutional provision innocuous. In “ADI 223” and “ADI 295,” the Supreme Court maintained a provision that prohibited the granting of injunctions in cases related to the Plan Collor I, understanding that there was no violation of the constitutional provision of access to justice. Thus, beyond the economic consequences, these decisions reinforce government positions that weaken explicit constitutional dispositions.
Another finding stands out is that among the ten cases that were decided against the government’s economic policy, five referred to civil service salaries, pension adjustments, and contributions from workers and pensioners from the public sector to the social security system. That is, they directly affected the justices. According to Kapiszewski, all decisions in cases concerning civil service salaries - in which the STF decided against the government - had a characteristic of self-protection.54 If we exclude these cases, the STF decided in favor of neoliberal reforms in 2/3 of cases, and especially in key cases, confirming the trends found by Hirschl in other countries.
3.2. Argentina
Also in Argentina, the Supreme Court of Justice of the Argentine Nation (CSJN) formed vacillating democratization jurisprudence. According to Gargarella, in order to achieve “democratic justice,” two particularly worrying trends in Latin America have to be tackled. The first would be the gradual establishment of restrictions on civil and political rights, such as freedom of expression and association. The second is the executive powers’ tendency to expand, undermining the separation of powers.55
Examining cases decided by the CSJN in the two decades after the re-democratization, Gargarella finds in the court’s action an example of what not to do, identifying a role that is contrary to the consolidation of the democratic regime. As in the case of Brazil, the jurisprudence of the Argentine court may, at best, be regarded as inconsistent in its democratizing nature.
It should be noted that the composition and organization of the Argentine court was the subject of several reforms. The Menem administration, for example, approved Law No. 23,774, which increased the composition of the court to nine ministers, and the then president had to appoint four new ministers. In this context, an “automatic majority” was formed, in which five of the justices repeatedly supported the interests of the administration.56
With respect to the protection of civil rights and freedoms, the CSJN initially issued decisions that expanded the protection of these individual rights, as in the cases “Campillay, Julio, c / La Razón y otros” (definition of scope and limits of freedom of expression), and “Fiorentino, Diego Enrique” (protecting the right to a fair trial with the prohibition of the use of evidence obtained in a domestic search without a warrant). In the 1990s, however, the court radically changed direction. In “Fiscal c / Fernández, Victor Hugo,” it reversed the decision given in the Fiorentino case. In “Menem, Eduardo,” it began to restrict the protection given to freedom of expression, once defended in Campillay.
In the protection of rights of individual autonomy, decisions went through the same trend, from the granting of constitutional protection to personal drug consumption (Bazterrica’s case), to declaring the constitutionality of punishment for the same action (“Montalvo” case).
In a case that combines the violation of the right to individual autonomy and the right to free association, in Comunidad Homosexual Argentina (CHA), the court denied an association that sought to protect LGBT rights to register as a legal entity, alleging a risk of eroding the cohesion and the resulting disaggregation of Argentina.57
Regarding the function of preventing authoritarian resurgences, the CSJN allowed the Executive to increase its powers, confirming the use of emergency powers to the detriment of the Legislative in “Peralta v. Nación Argentina.” Therefore, eroding the checks and balances that should act on the government. In “Cocchia v. Nación Argentina, “the court ratified the broad use of legislative powers by the Executive, refusing to more generally control the policies proposed by elected branches.
The court was deferent to the Executive even in cases in which the lack of intervention endorsed the destruction of constitutional prerogatives of the control of political power. In “Molinas,” the court upheld president Menem’s decision to dismiss the Attorney General, charged with investigating the Executive, without opening a process of impeachment.
In a positive move, the court had decided in “Aramayo” against its previous jurisprudence, which had equated legislation produced in authoritarian and democratic periods, to privilege the latter. However, in 1991, in the “Godoy” case, after a change in its composition, the court again adopted a position of parity between the norms.58
Thus, the court delineated a deferential role in the face of Executive, refraining from controlling decisions that undermined the protections of individual rights and the restriction of state power characteristic of liberal constitutionalism, notably allowing their attempts to expand Executive powers. Within the scope of democratization jurisprudence, the Court failed to secure a democratic public sphere, to protect individual and minority rights and freedoms and dealt inconsistently with authoritarian legislation, undermining mediation between authoritarian and democratic constitutional orders.
The CSJN, as well as the STF in Brazil, has gradually been shifted to the center of post-democratization political disputes. Gargarella, for example, emphasizes the role of the Court in confirming the different tendencies experienced in that country regarding political orientations, from moments of the strengthening of rights, to waves of their restriction in favor of “budgetary balance.”59
Regarding economic policy, when the CSJN and the Executive were aligned - an important consideration given the various changes in its composition between 1984 and 2004 -, the CSJN tended to endorse the structural adjustment reforms proposed by the government. However, in situations of strong opposition or under institutional threats, the court strongly challenged economic policy decisions.60 It is interesting to note how the court’s deference to the economic field accompanies the retrogression in the protection of individual rights and freedoms: when the court and the Executive are aligned. Only in the two moments - the late 1980s and 2001-2003 - when the Supreme Court and the presidents were not coordinated, the court made decisions that strongly challenged the exercise of political power in the economic field. Between 1990 and 2000, with the “automatic majority” of Menem, the court decided in most cases to favor the government and only weakly challenged decisions.61
Of the 18 central cases for economic reform in Argentina, ten were judged favorable to and eight were against the government’s economic policy. Unlike the STF, there does not seem to be a specific decision-making tendency depending on the matter, with the tendency of alignment or not with the Executive, that is, circumstantial, being predominant. The panorama designed by Gargarella, however, is that,
In short - and against the widespread idea that considers rights as “letters of triumph,” with the necessary power to win and order the majority policies - here the rights were put at the service of the political decisions of the moment: only to the extent in which sufficient resources existed, respect for rights was strengthened and the range of rights fulfilled tended to expand.62
Through cases that have limited the rights of workers, LGBT minorities, privacy and individual freedom, decisions of the CSJN have shown that politics would not be guided by the imperative of rights. But rather, that the extension or narrowing of the protection of constitutional rights would meet the circumstantial needs of politics.
4. HIGH EXPECTATIONS, MEDIOCRE RESULTS: THE PERFORMANCE OF THE COURTS IN DEMOCRATIC CONSOLIDATION
By contrasting what courts are supposed to do as democracy builders and what they effectively deliver, Daly finds a combination of decisions that promote and that undermine democratic consolidation. This finding requires a reassessment of the excessive reliance on courts as the central instrument of democratization. We aim, therefore, to evaluate how much the result achieved by the courts in the new democracies of Brazil and Argentina is consistent with the justifications and expectations related to their adoption. That is, the extent to which adjudication has helped mitigate the weaknesses of new democracies, or whether, contradictorily, it has reinforced their pathologies.
It is against a conception of liberal democracy that these courts should be evaluated, as it was in the light of this model that the advantages of their creation were thought up. Contrary to what an uncritical adherence of transitional justice to a paradigm of separation of the economic and political-institutional spheres63 may lead us to believe, the prevailing formulation of democratic liberal regimes includes prescriptions on these two spheres, albeit in tension with one another.
The jurisprudence of the constitutional courts in Brazil and Argentina demonstrates inconsistent performance in the consolidation of democratization jurisprudence. Both courts, to varying degrees, advanced and retreated in the task of strengthening the new democratic order and displacing the persistent authoritarian order.
In Brazil, advances in the protection of rights such as freedom of expression, assembly and demonstration, on the grounds of being indispensable for a democratic regime, coexist with the maintenance of authoritarian period laws. Specifically, recall the judgment for “ADPF 153” in which the impunity of perpetrators of gross human rights violations was upheld. Another relevant example is how the Supreme Court ruled against the constitutional provision of access to justice in favor of Collor Plan I - which prohibited the granting of injunction in the lawsuits over the economic plan.
In Argentina, the 1990s brought a reflux in the protection of civil and political rights. Rights that were being gradually consolidated by the court suffered clear setbacks with the formation of the “automatic majority.” As an example, there is a relaxation of protections against authoritarian police searches, and for freedom of expression and association.
With regard to structural adjustment programs and the consolidation of free market economic policies, both STF and CSJN have adopted more consistent positions in support of government reforms. The decision-making pattern, however, does not reveal a principled adherence to the proposals. In the case of the STF, the cases that would directly affect their income were all tried against the government. In the case of CSJN, the determining factor seems to be the alignment of the court with the Executive.
The findings confirm the tendencies found by Hirschl that the judicial interpretation of constitutional rights is overvalued. The author further asserts that the so-called negative freedoms associated with individual privacy and autonomy and free-market policies are generally interpreted more generously. This would be because this category of rights is consistent with a prevailing neoliberal sociocultural approach that preaches a minimal state. However, it is not possible to confirm this trend with the cases investigated, as all the cases referring to “democratization jurisprudence” represented negative rights. It should be noted however that, even rights considered basic to the functioning of a democracy, such as freedom of association, were occasionally left unprotected by the courts.
There is, however, another conclusion reached by Hirschl that offers a plausible explanation for the courts’ decision-making pattern. Although there are exceptions - the cases studied show that - constitutional courts very rarely diverge from hegemonic political forces and national metanarratives.64 In the Brazilian case, it is important to maintain the narrative of “political agreement” and the agreed transition from dictatorship to democracy. In the Argentine case, we see the prevalence of the position of concentration of power in the Executive, a historical trend identified by Gargarella.
The prescription of a model of democratization centered on courts therefore faces serious challenges in view of the role they actually played in these two cases. Why invest so heavily in an institution whose behavior is not unequivocal – or at least in its majority - in the sense of democratic consolidation?
Nagy expresses her concerns about the fact that the prioritization of legal-institutional approaches in transitional justice stems from the assumption of a legalistic perspective that attributes to legal processes, in isolation, the capacity to resolve social and individual damages.65 That is, based on the defense of the idea that the search for “justice” would be supra political and not subject to criticism.
In this scenario, judicial or quasi-judicial solutions gain prominence, since they are seen as the result of the performance of a body independent of political passions and conflicting personal interests, which would justify the withdrawal of decisions of a political nature from the representative spheres. Judicial empowerment is part of a broader tendency to isolate decision-making functions from majority control,66 although in reality, courts and the law are also subject to the power relations of the context in which they are embedded.
As Issacharoff points out, for example, the choice of members of constitutional courts does not occur apart from the political interests of negotiation in transition, “judges are not predestined, but an integral part of the negotiation.”67 That is, despite the fact that the Judiciary is seen as impartial,68 both the legal structure outlined in the transition, and those responsible for interpreting and applying it are embedded in domestic and international power relations, which will be reflected in their performance.69 Despite this, the Judiciary’s reputation for impartiality is one of the factors that favors the process of isolating the political preferences of the elites from popular pressures.70 The legalistic stance, therefore, renders invisible the power structures,71 allowing their reproduction.72
Issacharoff warns of the need to develop democratic institutions and practices. However, the mere existence of a constitutional court does not provide protection for democratic governance practices. Both because the courts run a serious risk of being disobeyed and annulled in combats with other branches of power, and because the courts can effectively act as guardians of a concentrated political power,73 in a diametrically opposed way to the countermajoritarian role attributed to them. After all, they are not disinterested institutions nor do they act in a vacuum.
Given the results of the adjudication of the constitutional courts and the indication of an elitist impetus in the creation of constitutional courts, allowing the isolation of the elites’ preferences from the vicissitudes of the democratic game, one must use caution when evaluating the consequences of this process in nascent democracies. As Gargarella alerts: “it should be clear that crucial cases such as the CHA or Godoy, among others, were not the product of political dependence on the judges but, on the contrary, of their unfounded conservatism or lack of commitment to democracy.”74
Thus, strictly positive visions of the effects of the constitutionalization of rights, both in consolidated democracies and in democratic transitions, must be considered with a caution. The cases of Brazil and Argentina suggest that the capacity of judicial interpretation to protect democratic governance has been exaggerated and that it contradicts the proposed model of court-centric democratization.
CONCLUSION
Through their jurisprudence, courts tell citizens what they are interested in deciding and how they will decide.75 Judicial decisions change the way citizens experience the state and the choices they make in their interaction with it;76 that is, more responsive decisions encourage the adoption of the state’s way of resolving conflicts and strengthens the rule of law.
When democratic institutions fail to deliver on the promises associated with the regime - free electoral contest, responsive governments, protection of individual rights - there is a risk of losing trust not only in government, but also in the democratic regime. Thus, the undue reliance on democratization models in the consolidation of democracy through adjudication represents an insistence on an approach that, in the face of the current wave of democratic decline, shows signs of being unsustainable.
Hirschl argues that the constitutionalization of rights and the establishment of constitutionality control are brought about by attempts by the judicial, economic, and political elites to maintain the status quo.77 The cases reported in this work confirm certain characteristics in the performance of the courts that reinforce the hegemonic preservation thesis. They also reveal the inadequacy of a model of democratization that gives courts an unequivocal role in promoting rule of law and democratic consolidation.
Understanding the recurrence of constitutional courts in processes of transition to democracy as a possible consequence of marginalizing power projects reinforces the need to critically rethink the field of transitional justice. Finally, the results highlight the need to develop research strategies that go beyond a court-centric model of democratization.