Judicial Reform as Political Insurance: Argentina, Peru, and Mexico in the 1990s

Notes

119 Notes Introduction 1. While this book is concerned primarily with Latin America, the challenge of establishing judiciaries capable of placing checks on authority holds true for much of the developing world. 2. For classic pieces on Latin American judiciaries, see Clagett 1952; Johnson 1976; Verner 1984; and Rosenn 1987. 3. For more on the rule of law see Dicey 1939. The definition of democracy used here comes from Diamond, Linz, and Lipset 1989, xvi, and includes “meaningful and extensive competition among individuals and organized groups (especially political parties) for all effective positions of government power, at regular intervals and excluding the use of force; a highly inclusive level of political participation in the selection of leaders and policies, at least through regular and fair elections, such that no major (adult) social group is excluded; and a level of civil and political liberties— freedom of expression, freedom of the press, freedom to form and join organizations—sufficient to ensure the integrity of political competition and participation.” 4. Landes and Posner define an independent judiciary as “one that doesn’t make decisions on the basis of the sorts of political factors (electoral strength of people affected by a decision) that would influence, control the decision were it to be made by a legislature” (1975, 895). For Iaryczower, Spiller, and Tomassi, judicial independence is the extent to which justices can reflect their preferences in their decisions without facing retaliation measures by Congress or the president (2002, 699). Fiss’s discussion of judicial independence is three-pronged and relies on party detachment (judges are impartial to litigants before them), individual autonomy (judges are not controlled by other judges in the judicial hierarchy), and political insularity 120 Notes to Pages 7–8 (judges are free from control by other government institutions) (1993, 55–56). According to Christopher Larkins’s definition, “Judicial independence refers to the existence of judges who are not manipulated for political gain, impartial toward the parties in the dispute, part of a judicial branch which has the power as an institution to regulate the legality of government behavior, enact neutral justice, and determine significant legal and constitutional values” (1996, 611). 5. In Latin America, it is often stated that courts have the power of revision judicial (judicial review) because a law may be declared unconstitutional for an individual in a particular case—although the law remains in force for the rest of the population. Thus, scholars familiar with the understanding of the term judicial review as it is used in the English language should be aware of the different meaning in Spanish. 6. Civil law systems developed in eighteenth-century postrevolutionary France, at a time when government leaders were wary of the power of judges. Hence, civil law judges could neither make nor unmake laws, and this was achieved by limiting the effect of their rulings to the litigants involved . Under common law, judges’ decisions are said to have “general effects ,” meaning that a court’s ruling applies to all citizens and political entities within the country, not just those individuals involved in the case. The extended effect of judicial decisions under common law allows for the total invalidation of a law; the law may no longer be applied and is therefore null and void. See Merryman 1985 for a good overview of civil law systems. 7. Austrian jurist Hans Kelsen first proposed the idea of a constitutional court as a source of constitutional control in General Theory of Law and State. According to Kelsen, “The application of the constitutional rules concerning legislation can be effectively guaranteed only if an organ other than the legislative body is entrusted with the task of testing whether a law is constitutional , and of annulling it if—according to the opinion of the organ—it is ‘unconstitutional’” (Kelsen 1945, 157). In Continental Europe today, the role of these courts is not only to declare legislation found unconstitutional to be null and void, but also to confer legitimacy upon laws they find constitutional (European Commission for Democracy Through Law 1994, 21). The creation of such courts in the developing world has lagged behind its European counterparts, but the trend of increasing the judiciary’s role as a source of constitutional control in non-European civil law countries is growing (Merryman 1985). 8. For example, when Peru’s Constitutional Court ruled in 1996 that the Peruvian president did not have a right to seek a third (and constitution- [3.149.234.141] Project MUSE (2024-04-19...