Guest Editorial – Constitutional Landmark Judgments in Central and South America

Eleonora Bottini

University of Caen Normandy

In December 2019, I had the pleasure of announcing on this Blog a new project in comparative constitutionalism: the ‘Constitutional Landmark Judgments Project’. The project invites academics to select and comment on a landmark judgment by the apex court of their jurisdiction of reference. Several scholars accepted the challenge for last year’s symposium focusing on countries forming part of the Commonwealth. This symposium shifts the lens to Central and Southern America; featuring contributions by scholars from Argentina, Colombia, Ecuador, Guatemala, Mexico and Uruguay. Respectively, these scholars are Gisela Ferrari, Maria Dolores Collazos, Johanna Frölich and Diana Carrera, Sara Larios, Irene Spigno and Stefania Rainaldi.

I want to start by thanking these seven scholars for agreeing to participate in the project at such a trying time, and for becoming part of this growing network of outstanding female academics. Their point of view on constitutional landmark judgments in Central and South America allows us to have insight into essential aspects of the jurisdictional work of high courts in the region.

Internationalization of constitutional law in Central and South America

This symposium will emphasize that in Central and South America landmark judgments are often (though not exclusively) related to the internationalization of constitutional law. A look at the selected cases reveals how constitutional and supreme courts in Uruguay, Ecuador, Mexico and Argentina have struggled to find a balance between two key concerns. With courts seeking to, on the one hand, open the national legal order to the influence of international treaties such as the American Convention on Human Rights (and thereby widen the protection of individual rights) and, on the other hand, establish the national constitution as the foundation of those rights. As Gisela Ferrari shows, the Supreme Court of Argentina could strategically build its legitimacy by focusing on internal sources, instead of systematically referring to an external jurisdiction, albeit a well-established one such as the Inter-American Court of Human Rights.

Several of the cited courts are operating in the aftermath of coups d’état and autocratic regimes, which enhances the need for legitimacy in terms of fundamental rights and the rule of law. The newly established Ecuadorean Constitutional Court of 2019, for instance, still struggles to establish itself as the guardian of the national Constitution. This Court often delegates its ‘counterpower’ role to external sources, by referring to the Inter-American system of human rights and also a foreign court, the Colombian Constitutional Court. Without neglecting the specificity of each country, comparing different solutions to this problem might help answering the following question: is the inclusion of international sources a sign of strength and openness for a high court or, to the contrary, a sign of weakness?

The need for commentary on landmark judgments

If proof was still required, the COVID-19 pandemic is showing the absolute necessity of legal (and, thus, constitutional) comparison in today’s interconnected world. The growing need for easily accessible comparative law resources is visible in recent scholarship. Leading legal blogs, such as I·CONnect, Verfassungsblog and IACL-AIDC Blog, provide regular updates and serve as sources of information about constitutional events all around the world. Other institutions in non-English speaking countries have also multiplied their interest in comparative constitutional law. One example is the French Constitutional Council, for which I had the pleasure of initiating, in 2019, a bi-annual chronicle on comparative constitutional judgments in the journal of the Conseil constitutionnel. We have also in recent years seen the launch of specialist publications, such as the I·CONnect annual country reports in the “Global review of Constitutional Law”, published since 2016 in collaboration with the Clough Center for the Study of Constitutional Democracy at Boston College. Since its ambition is “to increase the base of knowledge upon which scholars and judges” rely, through reports in “an easily digestible format”, the Global review initiative resonates with the Constitutional Landmark Judgments Project.

What makes this project somewhat different is that it is limited in its scope to constitutional judgments, without any specific time frame. I have invited authors to choose an iconic apex court decision that represents, in their scholarly opinion, the best entryway to that jurisdiction. I have given contributors a stipulative definition of “landmark judgment” as “a judgment, of constitutional or judicial review, issued by an apex court, that has shaped and continues to shape the constitutional debate in a given jurisdiction”. The standpoint of the project is that comparative constitutional scholarship would benefit from the availability of many forms of introduction to a country’s legal order. The yearly reports, in the Global review, usefully present jurisdictions by introducing their constitutional and court systems. This project, in contrast, presents a legal order by explaining one significant judgment in its context, alongside its legal and political consequences. 

Constitutional law as political law?

One of the theoretical ambitions of the Constitutional Landmark Judgments Project is to construct a concept of “landmark judgment” that emerges from the case-notes written by project participants. The fulfilment of this ambition is yet to come. Nonetheless, it is possible to start drawing out some characteristics of the concept by studying the case-notes produced so far – like the brush strokes in an impressionistic painting with a picture progressively appearing, even without yet being complete.

It appears the landmark judgments discussed thus far have had significant political implications – sometimes instead of, and sometimes in addition to, legal consequences. For that claim to make sense, I first have to define what I mean by ‘legal’ and ‘political’ in this context. A normativist (or Kelsenian) approach to constitutional law would distinguish legal discourse (based on written constitutions, legislation and the judicial interpretation thereof) from other considerations. Under that approach, factors such as the political context, changes in government and the regime, the strategies of various actors and the history and sociology of the country and the court itself are irrelevant. An opposite position would be to have a political approach, in terms of which it is only possible to understand constitutional law by taking the relevant history, context, politics and international relations into account.

Often this latter approach is corroborated by scholarship taking seriously the idea of informal constitutional change. Jellinek defines this concept as “a modification of the constitution that, formally, leaves the text of the constitution unchanged, stemming from facts that do not necessarily derive from an intention to modify the constitution or an awareness of doing so” (Verfassungsänderung und Verfassungswandlung. Goldbach, Keip Verlag, 1906, at 3). I will not here enter into the complex academic debate about informal constitutional change (or constitutional conventions and customs – sometimes even called ‘political law’). I do note, however, that the authors of the completed case studies, to explain the relevant legal systems, did approach the judgments in a complex and inclusive way, including referencing the political (lato sensu) context. Anna Dziedzic, for example, shows how expanding the analysis of the judgement she selected beyond just a consideration of the legal reasoning unveils it as “a visible mark of the underlying tensions of colonialism, race and multiple sites of power in Fiji’s constitutional landscape”. Toerien van Wyk too notes that Makwanyane in South Africa  “was (…) decided in the context of significant political and social change”.

Every case study, in both symposia, has highlighted political considerations, relevant to the judgements discussed. If confirmed by further research, this would indicate the newly formed concept of ‘landmark judgment’ is applicable in the discussion about the specificity of constitutional law, as a legal field with a particularly ‘political’ object (for more on this debate, see Manon Altwegg-Boussac). Without advocating, at this stage of the project, for one approach over another, I note the importance of political elements in the selected case-notes is an interesting step towards painting the entire picture of constitutional landmark judgments.

Eleonora Bottini is Professor of Public Law at the University of Caen Normandy.

Suggested citation: Eleonora Bottini, “Guest Editorial – Constitutional Landmark Judgments in Central and South America” IACL-IADC Blog (9 July 2020) https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-central-and-south-america/2020/7/9/guest-editorial-constitutional-landmark-judgments-in-central-and-south-america