Constitutional Reasoning in Latin America and the Caribbean, edited by Johanna Fröhlich, 2024, Hart/Bloomsbury
If the courts have become the last line of defence for democracy in Latin America, this is largely because the law has become a playground for its enemies.
The most important cases to be heard by constitutional courts in the region in recent years have reflected deep political divisions exacerbated by forces hostile to, or at least ambivalent about, the rule of law in democratic societies.
In Mexico in 2022, it was the Supreme Court that upheld legislation enabling Andrés Manuel López Obrador to call an unprecedented “recall referendum” on whether he should remain in office.
While AMLO argued that the vote was vital to validating his democratic mandate, critics said it was a populist tactic to distract from his mistakes and consolidate power that raised concerns about potentially undermining institutional checks and balances.
In Brazil in 2021, the Supreme Federal Court struck down corruption convictions against Luiz Inácio Lula da Silva, arguing that there had been jurisdictional errors in a corruption case championed by his rightwing opponents.
While this paved the way for Lula’s return to the presidency and exposed the “controversial and pernicious role” played by judges in jailing him in the first place, it also generated concerns about judicial overreach and, indeed, bias.
That said, his far-right predecessor Jair Bolsonaro had spent much of his campaign for the presidency and period in office attacking the judiciary, and Lula’s success was seen as political vindication, at least, of the struggle against anti-democratic “lawfare”.
Nowhere in Latin America is more prone to that lawfare than Peru, where repeated impeachments of presidents—Pedro Castillo alone was impeached three times—have become a mainstay of activity for the constitutional tribunal, have fuelled debates about the political abuse of this mechanism, and have created conditions of near permanent instability.
In short, constitutional courts have become a key arena of struggles that should in theory be resolved through electoral politics—highlighting the judicialization of politics and the threats both to judicial independence and also of judicial bias in fragile democracies.
This makes constitutional reasoning a critically important factor in shaping Latin America’s future at a time, says author Johanna Fröhlich, of “continued ferment and uncertainty” that amounts to a genuine crisis of authority.
Constitutional reasoning has gained greatly in prominence in the region under democracy, not least because of the role the law has played in expanding the recognition of key rights.
How constitutional judges interpret the law as envisaged by constitutions is, therefore, at the very heart of competing visions of society and individual rights, of the institutions responsible for compliance, and of equality and non-discrimination as essential principles of the law itself.
Given this, in Latin America today the courts are on the front line. Much is at stake in the current context of democratic backsliding, populism, and how these phenomena threaten institutionalisation and the very legitimacy of the legal system.
Nowhere in the region, Fröhlich points out in Constitutional Reasoning in Latin America and the Caribbean, has seen as intense and sustained a debate over fundamental constitutional questions and models than Chile.
It is an important example, because it was through the 1980 constitution that the military dictator Pinochet imposed not only a rightwing stranglehold over the country and its politics, but over the socioeconomic values reflected by his bloody coup of 1973.
Chile’s constitution was reformed in 2005 with the introduction of amendments that are considered to have been the most important steps towards a functioning democracy. These reduced presidential terms to four years, diminished the military’s influence in politics, and detached the electoral system from the constitution to open pathways for future reform.
In recent years, the country has also generated two successive constitutional conventions producing two radically different texts and visions of its future, only to see both decisively rejected in referenda.
Examined in this book about constitutional thinking throughout the region, the Chilean case is instructive for highlighting some of the strains that have emerged in judicial systems since the (hesitant) consolidation of democracy.
A key regional trend that becomes apparent according to the editor is a swing away from a traditionally constrained and formal constitutional climate towards more “romantic” adventures in jurisprudence sensitive to the zeitgeist of contemporary social changes. Contributors also draw attention to a correlation between political regime change and the interpretive practices of senior judges.
In their examination of the jurisprudence of the Chilean constitutional court (CHCT), Cristián Villalonga Torrijo and Francisco Javier Urbina point to a profound shift in legal culture over the last 30 years in which “neo-constitutional thought” has become the mainstream in legal academia. Scholarship has been imported from Germany, Spain, and Italy to formulate a far more ambitious role for courts in enforcing fundamental rights.
Gone is the stifling professional ideology of “judicial apoliticism” shaped by past political constraints and the theoretical influence of “textual positivism” by which deferential courts understood their role to be restricted to law finding as opposed to law-making.
The authors’ analysis of the CHCT’s rulings shows important changes in its political behaviour and the rhetoric of judgments in the face of social demands for greater democracy, legal equality, and economic justice. The CHCT began to decide cases related to social issues—for example, allowing the decriminalisation of abortion in 2017 and deciding cases on same-sex marriage.
As a result, the court became less deferential and more assertive, defying governments at the risk of incurring political costs.
At the same time, Torrijo and Urbina argue, the subsequent innovations in its arguments have made it increasingly difficult to understand its underlying reasoning, and the CHCT has been unable to establish a methodologically coherent regime of precedents, overturning prominent previous judgments without clear discipline.
These changes have been in part a response to demand, with the authors writing: “In the last ten years or so, repeat players employed a larger set of arguments in litigation as part of a deep transformation in legal culture, resorting extensively to constitutional petitions to challenge legislation. Furthermore, the increasing level of fragmentation in partisan politics has contributed to more contentious law-making.”
Importantly, however, such changes have not necessarily bolstered the court’s standing. The authors argue that despite its growing influence, the transformation in its practices and the gradual fragmentation of Chilean politics have eroded the CHCT’s authority within the political process.
One reason for this is that the court became a victim of its own success. Its greater influence after 2005 aroused the interest of political parties in exerting more direct control over it, and the executive and legislative branches began nominating legal and political actors to the CHCT’s bench.
These were appointed without public debate and in some cases lacked expertise—thereby ultimately diminishing its prestige.
Torrijo and Urbina write: “All things considered, the abovementioned difficulties have undermined the very core of the CHCT’s constitutional role, which entails the work of impartial judges applying pre-existing constitutional criteria through sound legal reasoning … at a time when the CHCT became more consequential and needed greater legitimacy, after more than a decade of deferential behaviour (1992–2005).”
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