CHAVEZ BEGINS NEW TERM WITH ECONOMIC AND POLITICAL CHALLENGES

Constitutional Courts and Institution-Building in Latin America

In the last two decades, eleven Latin America countries implemented significant constitutional changes designed to protect the basic rights of citizens. Bolivia, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Nicaragua, Paraguay, Peru and Venezuela all created constitutional courts or special constitutional chambers in their Supreme Courts.

How have these institutions worked in practice, and how are they perceived by the citizens they serve? The reality is linked to the social, political and economic contexts in each country. At times, the courts' decisions have resulted in a clash of powers, and at others, they have been influenced by the political context. Colombia and Costa Rica are examples of the first situation, while Peru exemplifies the second.

Colombia's constitutional court recently overturned a presidential decree that cited the country's ongoing economic recession to justify freezing the salaries of government employees. The court decided that the decree was illegal and incompatible with accepted notions of equality and the right to fair compensation. As a result of this ruling, 500,000 public employees will receive retroactive payment of their salaries next year and the government will incur a $500 million debt.

The decision triggered a confrontation between different branches of government and polarized public opinion. Some critics charged that the court was overstepping the boundaries of its jurisdiction. An editorial in the Colombian daily El Tiempo accused it of being "contaminated by demagogic tendencies and a desire to meddle" and of "imposing a type of government by the judges." In an interview the same day, the president of the court, Fabio Morón Díaz, accused the court's critics of trying to protect special interests. "The court's decisions are based on law, not convenience," he said.

Similarly, in Costa Rica, representatives of the Attorney General's office, Román Solís and Faride Beirute, told the newspaper La Nación that "the country's most important political decisions are being made by the Fourth [Constitutional] Court, not the executive branch or the Legislative Assembly." They complained that "the court inappropriately considers issues that correspond to other institutions."

For most citizens of Latin America, however, the constitutional courts offer protection and an expeditious way to gain access to the justice system. Most important is their ability to review decisions taken by other courts. On several occasions, Colombia's constitutional court has obliged the state to comply with its commitments and obligations, especially with regard to health, education and social security benefits.

In other countries, the power of the courts has been curtailed by executive branch interference. This has happened in Peru, where three years ago President Alberto Fujimori dismissed two of the court's seven justices after they ruled that his election to a consecutive third term would be unconstitutional. Another example is the 1998 case of Baruch Ivcher Bronstein, whose citizenship was revoked after the television station he directed broadcast programming critical of the Fujimori government. Ivcher turned to the country's constitutional court, which declined to hear his case, stating that the judicial process had run its course. According to Samuel Abad, a Peruvian judge, Ivcher's experience showed that "when a case involves the highest levels of power, the court follows the wishes of the executive."

Guatemala's constitutional court has shown more independence. In 1993, in an attempt at civil coup d'etat, President José Elías Serrano issued a presidential decree to dissolve the court. Its justices continued to meet clandestinely and nullified this and other presidential actions. The court's persistence contributed to the reestablishment of the constitutional order in Guatemala in a case that clearly shows the institution's importance in maintaining the rule of law.

According to the United Nations Development Program, Central America's citizens look highly on the constitutional courts, leading to greater confidence in the state and, ultimately, the democratic system. The courts have helped raise awareness of mechanisms guaranteeing basic rights. The UNDP reports that the constitutional courts of Nicaragua, Guatemala, El Salvador and Costa Rica have ruled most frequently on matters pertaining to the right of petition, due process, defense, free association, labor and equality. Cases involving due process and the right to a defense account for approximately 75% of the complaints of alleged rights violations that the courts there hear.

With the exception of Peru, most of Latin America's constitutional courts have performed satisfactorily. In some countries they may have exceeded their functions, threatening the balance of powers, but in most cases they serve as a counterweight that makes it possible to place limits on government actions and protect the rights of citizens. In sum, the courts have contributed to institutional development in Latin America. As the Commission of Andean Jurists stated recently in the case of Bolivia, "their decisions have had positive repercussions for public opinion."