Association for Civil Rights
Buenos Aires, Argentina
Constitutional Democracy and the role of Judges in the protection of rights
Latin American democracies are based on the idea of self-government and self-collective determination. That means, among other things, that the law receives its authority from the fact that people consent government’s decisions because that government was elected by them and represents them. However, as we all know, the people do not speak in one voice and in order to identify its political will. We agree that a democratic government speaks and decides for the people. However, what is exactly the content of the will of the people and how are we able to identify it? The imperfect way to do it is through majority vote and majority rule. This means that, after deliberation – that is crucial step in the process that ends up in voting for a particular decision – the concurring opinion of the majority becomes law and, as such, it is imposed to everybody, even to those who disagree with it. How can we justify in a self-government system that some people – the minority – have to obey other people with almost no space for resistance after the decision was made according to democratic procedures?? This may happen only because they were able to participate of the deliberation that took place before the decision was made, in which they had the chance to convince others and become a majority, and because they were able to vote freely according to their perspective. Of course, for those in the minority, to have to obey the will of the majority may seem almost like being subjected to the will of an autocrat, however, the fact that they freely participated of the decision making process overcomes – at least partially – this first perception of being subjugated by the majority. Of course, we all know that this decision making process can be far from perfect, but its imperfections are not always enough for undermining it up to the level of objecting the decision that is made through it. The electoral system by which we elect our representatives may not be the best, and that is why we are permanently trying to improve it. The possibility of expressing our ideas during the deliberative process may be negatively affected by the fact that a few media monopolize access to public debate, and that is why we are always seeking for ways to create new opportunities for minority voices to be heard. It is possible that electoral campaigning and political parties activities financing may distort the genuine political competition based on different political perspectives, but that is why we are thinking all the time about ways to limit these practices and creating opportunities for everybody to compete for a sit in Parliament or for becoming the Chief of the Executive Branch. These imperfections must be fixed, but as long as they do not go across a certain limit, the democratic system deserves respect and decisions made under its rule require our obedience. If elections are openly affected by fraud, if decisions in Congress are made according to the will of those who bribed politicians rather than according to the will of their constituencies; if political parties do not represent the people, but those who supported with their money the electoral campaign, if the media is capture by few sectors and the broad majority cannot either say what they think or get information about what other people think, particularly those who are not in government, the democratic regimes is seriously damaged and at sometime the people have a right to recover control over it.
Arguing that majority rules (after a deliberative process), does not imply that the majority is always right. It just implies that the chances of making an error are less than in the case one person or one group decides on behalf of the rest. However, that majority can commit “mistakes.” This “mistakes,” in a right-based democracy, are mainly linked to situations in which that majority violates the rights of the people, usually of those belonging to the minority, although it could also be the case of a minority of the people – those representing them in government, turn themselves against the majority. In order to overcome the risks that derive from the imperfections of majority rule, most democracies in Latin American, have established constitutions whose content operate as a limit to majorities or to representatives. Therefore, democratic governments are empowered to make decisions but not any decisions: only those that are not in conflict with the constitutions – that mainly establish respect for rights and democratic procedures as a limit to democratic self-government.
In this way, most Latin American nations have adopted constitutional democratic regimes. These regimes combine, on one hand, democratic governments that make decisions according to what the majority will is after going through a deliberative process; and on the other hand, they establish constitutions that operate as a limit to that democratic will. In this way, constitutional democracies ambition to achieve the objective of self-government at the same time that they aim to make rights respected imposing them as a limit to the will of the majority of the people.
These principles of most constitutional democratic regimes are “translated” into concrete institutions that have specific responsibilities. Legislatures or Parliaments as well as Executive branches are usually the expression of the democratic will of the people. The people, as plural and diverse as it is, is represented in Parliaments and their representatives make decision according to majority rule. The Chiefs of the Executives are also elected by the majority of the people and although they should be the expression of the will of “the” people, we can say that they represent the will of the majority of the people. These two branches of government have the power to make law and policies. However, their decisions cannot imply violations of rights as they are established and protected in the constitution. If they make a decision that negatively affects rights, the system relies in another institution for protecting them and invalidating the decision made by the democratic government that made a “mistake” – the judiciary. In a constitutional democratic regime, judges are the guardians of the constitutional limit against the democratic government. According to different procedures (usually before a concrete case brought before courts by the person whose right was supposedly violated), judges are empowered to opposed the people the constitutional limit they were supposed not to trespass.
Two conceptions of liberty and two ways of making rights enforced
Classical liberalism, since the 17th Century, has believed that liberties were, following Isaiah Berlin terminology, “negative.” That means that liberty – or rights – can be affected by government action and, therefore, government inaction was the solution to the threats against rights coming governments. Judges and Courts, according to this conception of liberty, would limit their duties to compelling governments to stop those state actions that imply the violation of a right. For instance, if we recognize in our constitutions that every individual has a right to freedom of expression, that means that the democratic government has no power for making a decision that goes against the possibility of every individual to voice his or her opinion on an issue. If the democratic government makes a decision against freedom of expression, like banning a book, that decision could be overruled by judges, who would certainly compel the democratic government to revert its decision. This conception of rights as negative liberties, does not reflect other situations in which, according to Berlin, rights, in order to be enjoyed, far from demanding government or state inaction, they require government or state actions. This is what he has called “positive liberty.” This is the case, for instance, of economic, social and cultural rights, that cannot be enjoyed unless the government implements programs directed to make them a reality. Of course, the right to health – recognized as a social right – is not only enjoyed when the government does not take action against my health – by making me sick through the intentional exposure of my body to a virus –, but also when the government does not perform certain actions – policies – directed to make it possible for me to enjoy my right – for instance through providing basic free health care to the people who cannot afford to pay for it in the market. Similar situations can be introduced in relation to the right to education, housing, etc. In these cases, judges as the last guardians of our constitutional rights, face a serious tension. If they do nothing and remain passive by not forcing the government to undertake the required policy, they would be failing in their responsibility to enforce the constitution. If they make decisions by which they force the government to undertake a particular policy with the goal of making social rights a reality, they will be accused of being taking over the power of the people, who is the only one entitled to make political decisions. Decisions about policies, allocation of scarce resources, and setting of priorities, are the prerogative of the democratic power of the people. Some Courts in Latin America, such as the Colombian Supreme Court or the Argentinean Supreme Court, following in certain way the model of the South African or the Indian Constitutional Courts, have been exploring a role for judges that does not leaves them inactive in situations such as the ones that I have described as violations of positive freedoms, at the same time that they were careful not to step over the power of the people represented in the Legislative and in the Executive branches of government. These courts have been making decisions in recent years that far from self-limiting the power of judges in this so called “political questions”, have expressed the will of judges of intervening whenever a right is violated, either by state action or inaction. However, instead of forcing the government to make a particular decision, they have pointed out that a right has been violated by not making a particular decision or undertaking a particular policy that have negatively affected constitutional rights, and have compelled governments – through their Executive or Legislative branches – to take action in a way that rights do not remain disrespected. These judicial decisions have not been made only regarding the enjoyment of social, economic, and cultural rights, but they have also been made regarding the compliance with constitutional mandates regarding civil rights that may also be violated through a particular policy or its absence. For instance, a human rights NGO in Argentina sued a state government because its prisons were overcrowded and – it argued – this situation led to people in prison suffer all kinds of human rights violations (not receiving enough food, proper health care, or simply being in inhuman situations). The NGO brought the case on behalf of those in prison and it did not claim for individual solutions for each person, but for a structural policy and legal reform that would improve the situation of all people living in prisons. Clearly, the solution to the rights violations of each individual in this situation, could not be solved without a dramatic and radical change in the policy, such as the construction of more prisons, or taking of measures that imply that people should not be in prison unless they have already been indicted, unless that some reasonable exceptions may apply. The Argentinean Supreme Court refraining itself from compelling the government to undertake one specific policy in order to overcome the problem, but far from pulling itself out of it, decided that the government should undertake “any” policy, democratically decided, that does not affect people rights.
How this framework may help to overcome inequality in Latin America
Latin America is one of the most unequal regions in the world. Inequality in this continent is not exceptional or marginal. It is structural and appears as the result of very specific policies that perpetuate the situation of poor people, generation after generation. Most countries in the region have constitutions that compel governments to respect people’s right to equally. This right to be treated equally has been understood as the right that every group of people has not to be subjugated by other group of people. Democratic governments should be respectful of these constitutional provisions that establish limits to their powers and must undertake policies that dismantle those structural conditions that are the cause of poverty and structural unequal treatment. According to what we discussed in the first part of this paper, this is not a government’s option. This is a government’s constitutional duty. Being so, there are two questions that we must ask ourselves. First, whether there is a role judges must play in order to make constitutional democratic governments to comply with their duties. Second, we have to find out how judges should make these decisions in order not to go beyond their constitutional powers that do not allow them to make decisions that only the people can make. There are maybe some lessons we can draw from the experiences I presented in the previous section regarding what some Courts have been doing in relation to the enjoyment of rights when they require state action. If inequality is structural, if there have been social practices that, beyond what the law says, have produced those inequalities that may have been happening for generations, does not have the government a constitutional obligation to undertake and pursue policies directed to the goal of dismantling those structures that lead to inequality? If so, doesn’t the Courts have, in a constitutional democracy in which judges are empowered for imposing the constitutional limit to the government, a duty to compel it to take measures against structural inequality? Judges in many Latin American countries have self-limited and avoided making decisions addressing government’s failure to enforce social rights or equality (against structural discrimination). They have developed what is called the “judicial questions doctrine.” According to this doctrine, only the political branches of government – the Executive and the Legislative branches – are the ones entitled to make political decisions or policies, what is obviously grounded in democratic theory. Only the people, through their representatives, can make decisions related to the distribution and allocation of resources. However, as we saw before, this self-determination principle that gives legitimacy to the law and to policies, has a limit and that is the one provided by human rights. No policy – or its absence – can violate rights. If the government is undertaking a policy or failing to do so, judges are obliged to compel it either to stop the policy or to initiate one (although they may probably not obliged to compel the government to pursue one particular policy). The decision the Argentinean Supreme Court made about overcrowded prisons, as well as another one that it made related to the functioning of the pension system, or the one forcing the government to clean a polluted river, as well as hundreds made by the Colombian Supreme Court, probably partially inspired by decisions by the South African Supreme Court, but not only, are examples of this new way in which judges are performing their role, particularly in a context in which the political branches do not seem to be responsive to the people’s claims for protection of their rights.
Is there a role that NGOs can play in this context?
In a democratic constitutional regime I briefly described in the first section of this paper, judges are the ones who have the responsibility of making decisions that bar governments from violating constitutionally protected rights. However, judges cannot perform this fundamental duty unless one person brings the case before them, with some exemptions according to each particular national legal system. Many times, those affected in their rights – the ones who have standing for bringing these cases, their cases, before judges – do not do so. It may happen because litigation is expensive, or because they consider the violation of their rights not to be serious enough as for them to go through a complex and costly process – although it may be of fundamental interest from the public interest perspective – , or because they are afraid of the retaliation that can take place on behalf of those in power, or because of simple ignorance about their rights. In these cases and in some legal systems, a third party, usually an NGO or the Ombudsperson are recognized standing for bringing the case on behalf of those affected. These actors are technically prepared to litigate, usually they have resources for doing so, and because it is their job they accept the risks that may come out of litigating against the government or powerful private individuals or companies. Provided the right legal arrangements for these cases to take place, many NGOs in the region have been experimenting with public interest litigation (also called “strategic” or “impact litigation”). This litigation practice have brought a lot of interesting cases before Courts that would have never reached them if conceiving litigation as limited to the affected parties: cases on different social, economic and cultural rights, on environmental rights and issues, on freedom of expression, freedom of information, and so on. It has also provided judges with the opportunity o invalidate or trigger legislation or policies that were impacting on rights with negative consequences and achieving their highest role of making the Constitution respected.
We are all learning about how to make individual or collective freedom possible. Many of the strategies we have experimenting with in the past are to be improved. If we used to think that rights were enjoyed only before government inaction, or that judges were loyal to their constitutional obligations by self-limiting their controlling powers, or if we thought that only those individuals affected in their rights were the ones who should be entitled to bring cases before Courts, maybe we were wrong. New initiatives are taking place in all fronts, particularly on the side of Courts, who go beyond what they used to think it was their responsibilities, and NGOs, that are becoming more specialized in rights protection and promotion. We are beginning with all these new experiments and there is a lot more to learn and to do if we want to achieve our goals and our ambitions for assuring freedom for all in the future.