Constitutional Court – model for success

[ By Anja Schoeller-Schletter ]

Today, promoting the rule of law is one of the main goals of most major international donor organisations. As sustainable development is a comprehensive process, the World Bank and its partner organisations have devoted much attention to legal and judicial reform in the past ten years. At stake are not only new normative provisions but also institutional reforms which are necessary to enforce laws. Experience has shown that without a solid, functional legal system investment is inhibited and reform projects in other sectors also tend to fail. To ensure lasting economic growth and good governance, the rule of law is indispensable.

Consequently, the World Bank has focussed its efforts on the role played by law in economic development with the emphasis primarily on the effect on markets. In this respect, its approach differs from the German Technical Cooperation (GTZ) concept of “State of Law” (Rechtsstaatlichkeit), the components of which are more systematic, more precisely defined and encompass a wider range of elements.


Pillars of the constitutional state

Even the best constitution is not worth much if it is not put into practice. The rights it promises must be guaranteed in practice. The institutions must function and must fulfil their ascribed tasks. This is where the judicial powers are of critical importance – particularly the highest judicial authority entrusted with control of the constitutional order. This can either be a Supreme Court as in the US, representing the highest authority for appeal in all judicial decisions, or a Constitutional Court as in Germany and Spain, solely responsible for disputes of a constitutional nature. A third option would be a Supreme Court with a specialised senate for constitutional disputes, as established in many Latin American countries since the 1980s.

The US Supreme Court and the German Constitutional Court are two examples of how courts involved in constitutional matters have become catalysts for setting up new social orders. Decisions on constitutional jurisdiction have proved necessary in order to solve competence disputes between different state organs, to restrain state authorities when violations of human rights have occurred, and to set judicial precedents for the relevant constitutional regimes. The structure and quality of the court responsible for constitutional control can also have an influence on the faith that people put in the state order. The competence and independence of the judges are also highly significant factors.

Unsuccessful attempts to establish stable democracies have been typical of Latin America’s political history in the past two hundred years. After the first seeds of democratisation were sown in the 1920s and 1930s, a phase of authoritarian military rule followed, typified by countless coups (in the 1940s and 1950s) and by long presidential dictatorships during the Cold War (exemplified by Stroessner in Paraguay or Pinochet in Chile). Some countries, such as Bolivia, introduced several different constitutions, one after the other, within a short period of time. This era saw
– human rights violations,
an unbalanced relationship between the executive and the legislature,
– a lack of checks and balances,
– a strong political role for the armed forces, as well as
– a corrupt judiciary which was subordinate to the executive and not worthy of its name.

Since the 1980s, Latin America has experienced a wave of democratisation efforts. Many countries have seen reforms which have fundamentally modified institutional and legal structures. Such reforms are not always based on the desire to introduce democracy, sometimes they result from the wish for more efficiency. Changing the political system, however, requires a new legal system, new legal interpretations and a new application of law. Institutions of state authority must be redefined and acquire new responsibilities. The jurisdictions of new or redefined institutions must be clear-cut and the institutions must understand, and identify with, their new role. Conflicts will easily arise where old and new perceptions directly oppose one another.

Experience has shown that this process tends to engender similar problems in different countries. A common difficulty is that the old legal system overlaps with the new one leading to inconsistencies which need to be clarified. For example, the approach of limiting certain rights (such as those of voting or adhering to political parties) in order to restrict the role of the military may clash with civil rights firmly anchored in the constitution. The constitutional court must then determine the actual extent of people’s freedom. Another recurring problem is whether the new constitution permits immunity to be granted to members of past military juntas.

In Latin America, there has been a change in thinking about what constitutes a successful process of democratisation. The awareness has grown that an independent, competent judiciary is necessary to limit the powers wielded by state authorities and to protect the constitutional rights of the individual.


Solving fundamental conflicts

Political conflict can be solved at various different levels. It can be decided at constitutional level – either by creating a new constitution or by reforming an existing one. But it can also be dealt with by the legislature or by court decisions. The state level that decides such conflicts indicates the nature of a particular state. It is a feature of Latin American countries that political upheaval and conflict situations usually implied drafting a new constitution. Rarely was any attempt made to reform existing constitutions or to have the courts control their enforcement.

The past few decades have seen a change, not only in which problems are being detected and dealt with, but also at what level they are being tackled. With growing independence and jurisdiction, the courts, especially the constitutional courts, are increasingly being assigned the role of managing fundamental conflicts.

For a long time the US Supreme Court served as the model for Latin America. This no longer applies to the same degree. The reason is its organisational structure rather than its relevance in strictly legal terms. Different measures of constitutional reform in Latin America show an increasing orientation towards Continental European models (see diagram). Since 1985, special constitutional courts have been introduced in six Latin American countries, among them Chile, Peru and more recently Bolivia. Within the same timeframe, five other countries have set up senates within existing supreme courts according to the US model, which deal exclusively with investigating constitutional matters. Only six countries, including Mexico, Argentina and Brazil, have retained the traditional supreme courts. This, however, did not prevent reforms in other respects.

Comparison of the relevant courts shows that not all the new constitutional judicial organs have been conferred the jurisdiction typical of Continental European standards. For example, Paraguay has introduced a senate which is solely responsible for constitutional matters. However, its decisions only apply to individual cases, not to the laws on which these cases are based. The constitutional assembly restricted the senate’s jurisdiction in view of past experiences with a dysfunctional judiciary subordinate to the executive. On the other hand, it feared introducing an authority whose powers might be too great compared to those of Parliament, understood, in line with British tradition, as undisputed sovereign.


International networks are useful

In many Latin American countries, there is a (receding) trend of not only allowing the constitutional courts to check cases for constitutionality. Courts of the first instance are also entitled to do so, in spite of the fact that their professional competence is often inadequate. Sometimes, even supreme courts, to which this name still applies, do not have the jurisdiction needed to fulfil their official tasks of guarding the constitution. In some cases, for instance in Brazil or the Dominican Republic, their competences have been extended and, to a large extent, brought in line with Continental European examples.

Experts from post-dictatorship countries show great interest in the theory of constitutional law. This affects not only constitution-making, but also constitutional precedents. There is a trend towards internationalisation with frequent referral to comparable cases. This subject was the central theme of the 4th World Congress of Constitutional Law in Santiago de Chile in January. Particularly in those Latin American countries, whose legal systems are situated somewhere between the Anglo-American and Continental European traditions, there is a trend of falling back increasingly on blended forms of constitutional jurisprudence.

Latin America has been influenced by the Continental European legal system ever since its colonisation by the Spaniards and Portuguese. The independence process was pushed ahead by political elites, who were strongly influenced by the ideas of the French Revolution. Initially, various models, and sometimes even entire laws, were copied. They mainly concerned civil legislation, while constitutional law tended to be designed according to the US model.

After military rule, many Latin American countries have followed European examples when enacting political reform. Cooperation in terms of judicial and constitutional reform has increased. This development was further boosted by the fact that European classics of constitutional jurisprudence (F. Lassalle, G. Jellinek, K. Löwenstein, K. Hesse, etc.) were translated in Spain, where they had become relevant after the Franco regime. These texts are now available in Spanish to all legal scholars active in constitutional theory and practice. At the same time there is a growing orientation towards the constitutional courts of Europe, which have been functioning successfully for several decades, and the precedents set by them.


Challenges for development research and policy

Latin America has come a long way towards developing democratic and constitutional states during the past two decades. For all the problems which undoubtedly still exist, the contribution made by the legal system has certainly been crucial. The judges at the new constitutional courts and their rulings meet impressive standards. This is also true of other courts of the higher instances. In contrast, the lower courts continue to suffer from a lack of basic knowledge and from inadequate funding.

Therefore, supporting the training of judges continues to be an important task for development cooperation. This concerns application and enforcement of laws. In the past few years, the process of mutual reception of jurisprudence has been enhanced by better availability of information and by increased networking, particularly in professional circles. This also has an impact on judicial decisions. In this context, it has proved useful that the German Federal Constitutional Court, in response to growing demand, has set up a translation service about a year ago. The Federal Constitutional Court wanted to make specific decisions available in other languages as required.

The challenge now is for development research to understand the motives, methods and results of this process of international legal exchange. In some cases, for instance, it is noticeable that rulings were influenced by the country in which judges were trained. A further challenge is to investigate possibilities and limits of transferring and utilising political experiences and technical arguments.

On the other hand, development cooperation faces the challenge of elevating this practice to the programme level and integrating it into existing support programmes – for instance, by turning the translations service of the Federal Constitutional Court, which, so far, is hardly known, into a resource systematically used by other countries. Both World Bank and German development policy state among the lessons learned the need for greater cooperation between the various development organisations. In this respect we can ask both the World Bank and European development policy: “Where else is the need for a blend of Anglo-American and Continental European elements greater than in Latin America? And where else would it be as promising?”

Literature:
Lösing, Norbert (2002): La jurisdicción constitucional en Latinoamérica, Montevideo
Schoeller-Schletter, Anja (2001): Verfassungstradition und Demokratieverständnis, Paradigmenwechsel und Reform (Law & Politics in Africa, Asia and Latin America, supplement 17), Baden-Baden: Nomos.
Ahrens, Helen / Nolte, Detlef (eds.) (1999): Rechtsreformen und Demokratieentwicklung in Lateinamerika, Frankfurt a. M: Vervuert.
German Federal Ministry for Economic Cooperation and Development (2002): Recht und Justiz in der deutschen Entwicklungszusammenarbeit.
German Development Ministry position papier No. 047.

Link:
World Bank: http://www4.worldbank.org/legal/leglr/