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CONSTITUTIONAL CHANGES AND JUDICIAL CONTINUITY:

LESSONS FROM FOUR TRANSITIONS TO DEMOCRACY

Diego Werneck Arguelhes*

* Gostaria de agradecer a André Cyrino, Bruce Ackerman, James Whitman, Marcelo Lennertz, Miguel de Figueiredo e Susan Rose-Ackerman pela leitura atenta e comentários. Versões anteriores deste trabalho foram apresentadas no Aspiring Scholars Symposium realizado na Faculdade de Direito de Yale, New Haven (EUA), em Março de 2009, e na 2nd Annual Graduate Law Students Conference, realizada na Universidade McGill, Montreal (Canadá), em Abril de 2009. Agradeço aos participantes destes debates pelas diversas sugestões recebidas.

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I. Introduction: The two levels of “higher law” reform

The transition from a non-democratic regime to a democratic one puts reformers before a

recurrent problem: however clear may have been the political repudiation of the past, the falling

regime often lingers in the very institutional background on which transitional leaders must

deliberate and act. For practical reasons, existing institutions and the laws that shape them cannot

be a priori dismissed in its entirety. In this scenario, enacting new laws to replace the existing

ones – or to fill whatever gaps the authoritarian regime had exploited – could be almost

considered a necessary/conceptual implication of the very idea of “transition to democracy.” The

political actors leading the change often have to institutionalize the rupture at some point – a task

which necessarily involves entering the legal sphere.1 In the most recent “waves of

constitutionalization,” there is arguably a pattern of correlation between shifts from authoritarian

to more democratic regimes and the elaboration of a new constitutional text to embody the

political principles by which the new regime differentiates itself from the past ones.2

Political reformers soon realize, however, that any change on the level of legal norms –

be it the elaboration of a new constitution or the enactment of statutes that, although formally

1 See Bruce Ackerman, WE THE PEOPLE: FOUNDATIONS, 1991. See also Ruth Teitel, TRANSITIONAL JUSTICE, 2000 (arguing that law is both a tool for making the transition and for ending the transitional period / marking the beginning of a new regime). 2 I am referring to what Jon Elster has described as sixth and seventh “waves” of constitution-making – the sixth wave comes with the fall of dictatorial regimes in Greece, Portugal and Spain in the 70s, while the seventh and final wave would center on the adoption of new constitutions by former Communist countries in the aftermath of 1989 (Elster, “Forces and Mechanisms in the Constitution-Making Process”, Duke Law Journal, v.45, 1995, pp. 368-369). See also Ulrich K. Preuss, “Constitution-Making and the Foundation of a New Polity”, in CONSTITUTIONAL

REVOLUTION: THE LINK BETWEEN CONSTITUTIONALISM AND PROGRESS, 1995. It should be noted, however, that even though the drafting of a new Constitution has been the most typical path chosen by political reformers to signal the break with the past regime, this should not be considered a necessary condition for the institutionalization of new political principles. A Constitution set aside by the previous regime can be brought back as a symbol of “restoration”, for instance, or an existing Constitution may be kept in place while the political elites associated with the displaced regime are prosecuted and/or purged from all public offices. See Jose Sebastian Elias, "Constitutional Changes, Transitional Justice, and Legitimacy: The Life and Death of Argentina’s “Amnesty” Laws." Hastings International & Comparative Law Review, Vol. 31, N. 2, forthcoming Spring 2008. See also Ruth Teitel, TRANSITIONAL JUSTICE, 2000.

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“non-constitutional,” are imbued with paramount political meaning – is not a sufficient condition

for completing their task of institutionalization. Only the most naive legislators – the kind of

which has arguably never existed – will forget to take into account that legal norms are not self-

applicable to facts and conflicts arising under their scope; as Hart has remarked, things and

events to not come to the judge with neat labels indicating in which legal category or provision

they should fit.3 Setting aside all the complexities of the issue of how (in)determinate legal

norms are, it seems safe to assert that specific legal outcomes are the result of the interaction

between (a) legal rules and (b) the institutions in charge of exercising judgment in applying these

rules. If this happens even with the most stable and/precise legal rules on any given

contemporary legal system, it should be no surprise that the problem is exacerbated when it

comes to applying constitutional norms, which are typically more open-ended and politically

charged. In this scenario, in order to ensure that judicial outcomes will be minimally attuned to

the (new) political ones, the political reformers’ task on the legal institutionalization front must

be twofold: something must be done on the level of the rules, and something must be done on the

level of the judicial institutions that will have the responsibility of giving concreteness to the new

regime by applying these rules.

This means that the degree of legal rupture can be understood as a function of two

variables – the degree of rupture on the level of constitutional norms and the degree of rupture

on the level of judicial institutions. This framework could be represented in the following way

(Figure 1):4

3 H.L.A. Hart, “Positivism and the Separation of Law and Morals”, Harvard Law Review, v.71, 1958, pp.593-529. 4 It will leave open the question of how the function could/should be drawn under specific conditions and in particular scenarios. Moreover, the choice of which factor is the “x” and which is the “y” axis in the graph is

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FIGURE 1

Rupture on the level of judicial institutions

Rupture on the level of constitutional norms

The role of judges in applying new constitutional norms after the regime changes can be

dealt with in a more or less explicit manner by legal thought. In some legal traditions,

constitutional theory has recurrently seen this issue through the concept of constituent power.

The distinctively legal idea of constituent power, as opposed to a purely political one, frames the

act of enacting new constitutional norms as one situated outside the scope of existing norms and

institutions, as it is conceived as the power to create from scratch the new legal framework for

the newborn regime. Even when they acknowledge that the exercise of constituent power to

remake a polity’s constitutional order is subject to limits that could be considered “legal” and not

irrelevant for my purposes. The point here is simply to highlight these two factors as the determinants of the degree of legal change during transitions.

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merely political, constitutional scholars immersed in this strand of thought insist that these limits

are always external to the falling regime (such as principles of international law and human

rights protection, or constraints implied by “the very idea of law”, for example).5

As a civil law “legal science” construct, the concept of constituent power is meant to play

a normative guiding role in the adjudication of conflicts by judges.6 Broadly speaking, the

construct tells judges that, when deciding cases involving norms enacted during the old regime,

(a) the previous constitutional norms are made void by the very enactment of a new constitution

(a phenomenon sometimes labeled “systemic” or “global abrogation”); on the other hand, (b) the

previous non-constitutional norms remain in place if and only if they can be reconciled with the

substance of the constitutional principles and rules laid down the constitution-making act. The

concept of constituent power thus tends to conflate the above-mentioned tasks of

institutionalization: reformers are encouraged to focus only on elaborating a constitution that

5 I will explain this in detail in the next section. 6 This should not be read as saying that doctrinal constructs such as “constituent power” are the result of enterprises primarily and directly undertaken to solve particular, concrete legal problems – which is arguably not the case within the civil law tradition of legal scholarship, as John Merryman e Rogelio Perez Pérdomo have argued (see THE

CIVIL LAW TRADITION, 2007, Chapter X). However, I do want to emphasize something that I believe Merryman and Pérdomo do not fully account for: such legal science concepts are part of an enterprise a rationalization of existing legal materials and concepts that purports to provide guidance on future legal decisions. Even though concrete practical problems arise in a background of “legal science” that was developed with internal consistency, not practicability, as its primary goal, scholars and judges are expected to resort (and may actually resort) to these rationalizations of “the law” in that particular area for guidance on how to deal with the arising issue. It would be worth investigating to what extent the picture of “legal science” as a “pure”, logic-based enterprise (found in descriptions by scholars such as Merryman and Pérdomo themselves – see op. cit, p. 62-65) conflates the 19th century and early 20th century ambitions of legal scholars to present themselves as solving practical legal problems in a “scientific” way – ambitions that were demolished by Kelsen’s “Pure Theory of Law” – with the way civil law legal science is seen and practiced nowadays. Kelsen sharply distinguished between the [supposedly] “scientific” enterprise of describing the legal system and the practical, “impure” and hopelessly non-scientific task of applying these descriptions to solve judicial cases – something that scholars doing “legal science” as described by Merryman and Pérdomo do at some point (see Hans Kelsen, PURE THEORY OF LAW, especially Chapter VIII, on interpretation and judicial decision-making). It seems that, contemporarily, the term “legal science” has been used to refer to two distinct enterprises: (a) describing the legal system and classifying its components in a seemingly philosophical, systematic way (a task which Kelsen believed could and should be “pure”, value-free), and (b) taking existing descriptions and classifications for granted in order to derive from them criteria to guide the application of legal rules. It is to this latter sense that I am referring at this point in this essay.

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faithfully expresses the desired political ideal. Granted, it would be a stretch to say that this

version of constituent power doctrine implies that, if you change the constitution, the judges will

simply follow. But it seems plausible to make the more modest claim that it does lead to the

understanding that judicial institutions are more like agents of change than a locus of change – a

view that can blind reformers to critical pitfalls in their task of institutionalization.

In this essay, I will argue that, from the point of view of political reformers committed to

a rupture with the old regime, the practical implications of doctrines of constituent power for

countries drafting a new constitution to mark the transition from an authoritarian regime are

either limited or dangerous. On one hand, (a) whatever effects these doctrines might have on the

outcomes of judicial decisions will heavily depend on how the task of reorganizing judicial

institutions is undertaken; on the other, (b) the very essence of these doctrines is to de-emphasize

the importance of the task of judicial reorganization itself.

I rely on four brief case studies to present this argument, which will be made in three

steps. First, I will identify a consensual doctrinal understanding on the idea of constituent power

that was shared by Argentina, Brazil, Portugal and Spain during their respective transitions from

authoritarianism to democracy in the 70s and 80s. This convergent understanding of the

phenomenon puts all the emphasis on “getting the new constitutional rules in place,” while

ignoring the “getting the new judicial institutions in place.” Second, I will show how, in spite of

this doctrinal convergence, these four countries had distinct ways of dealing with the two-fold

legal reform task (changing constitutional rules and changing judicial institutions). Portugal and

Spain created constitutional courts with exclusive judicial review jurisdiction to block access by

pre-transition judges to this kind of power, while Argentina changed its Supreme Court justices,

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but not the basic institutional design. Meanwhile, Brazil kept both the institution and the justices

almost untouched by the transitional process. This suggests that the concept of “constituent

power” does not have necessary practical implications on the level of judicial institutions. Third,

by comparing the “constituent power” perspective with the concept of “intergenerational

synthesis” developed by Bruce Ackerman, I intend to show how, from the point of view of

constitutional reformers, the image of limitless power described by the concept of constituent

power is misleading. The concept might have played the role of expanding or contracting the

judicial review powers of courts after judicial institutions have been reorganized in countries

such as Argentina, Brazil, Portugal and Spain, but it could not have helped reformers in dealing

with these institutions in the first place. If my argument is persuasive, this picture may suggest a

more general point: without change on the institutional level, even the most explicit

“constitutional new beginning” amounts to a partial rupture.

II. The Constitutional Change Front: a trans-Atlantic doctrinal consensus on constituent

power?

The relationship between legal institutions and political upheavals has provided

constitutional scholars with a well-known set of challenges. Unconstrained, foundational politics

instantiates itself through different mechanisms into constitutional norms, under which ordinary

politics will be conducted on a daily basis. From this broad picture, a number of different

theories and institutional experiments have been devised – for instance, the boundaries between

foundational and non-foundational political decisions, set by the constitution, may be taken as

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being more or less permeable, or more or less subject to change.7 But at least one core

commitment of constitutionalism remains intact: the Constitution is framed by a political act,

but, at the same, it frames other, subsequent political acts, setting a boundary between a “time

zero” of unconstrained political mobilization and a “time one” of limited political decision-

making.

On the conventional account in Portuguese, Spanish, Brazilian and Argentinian constitutional

scholarship, this boundary is anything but flexible. It is, by definition, trespassed whenever there

is an elaboration of fundamental political decisions that clash with past fundamental political

decisions as expressed in existing legal institutions.8 But this trespassing is beyond the reach of

legal analysis, as it is sidesteps the very existing legal order in order to create a new one. Indeed,

constitutional scholars in these countries would converge on the proposition that new decisions

at this foundational level are unbound by existing legal obligations toward the institutions and

7 A telling example can be found in Bruce Ackerman’s account of the “partial revolutions” in U.S. constitutional history. In the examples documented by Ackerman – notably the Founding, the Reconstruction and the New Deal scenarios in which “higher politics” enters the stage and bypasses existing constitutional norms to create new ones, but without considering itself to be completely unbound by the existing institutions (Bruce Ackerman, WE THE

PEOPLE: FOUNDATIONS, 1991; see also Bruce Ackerman, “Revolution on a Human Scale”; Yale Law Journal, Vol. 108, No. 8, 2279-2349. Jun., 1999). This picture is clearly at odds with the traditional conception of “constituent power” in the civil law tradition, as discussed below. On the U.S. experience with “constituent power” and constitutional change, and how it requires the observer to deal with non-explicit instances of constituent power at play, see also Stephen M. Griffin, “Constituent Power and Constitutional Change in American Constitutionalism”, in Martin Loughlin and Neil Walker (eds.), THE PARADOX OF CONSTITUTIONALISM: CONSTITUENT POWER AND

CONSTITUTIONAL FORM, 2007. 8 At this point, I deliberately avoid the term “Revolution”, because it can be subject to a critical, non-descriptive interpretation that would only consider some political ruptures to be worthy the name “Revolutions”. We might say, for instance, that only the self-conscious political ruptures that are the outcomes of a certain degree of popular mobilization and debate, or that are committed to specific goals such as freedom or equality are adequate instances of the concept of “Revolution”. I will employ more broad expressions such as “regime change” or “political ruptures” instead. But a more “descriptive” and non-committed concept of Revolution would work as well for my purposes. For an example of such a concept, see Ulrich K. Preuss, CONSTITUTIONAL REVOLUTION: THE LINK

BETWEEN CONSTITUTIONALISM AND PROGRESS, 1995 (“The decisive criterion for defining political and social changes as revolutions is whether they bring down an existing order and its underlying principles and replace them with new principles”, p.81).

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rules created by the previous manifestation of higher-lawmaking power.9 To frame it in the

traditional European constitutional vocabulary, the establishment of a new constitution is an

exercise of “Constituent Power,” which is legally limitless because it creates law ex nihilo. As

Andreas Kalyvas nicely summarizes it, the exercise of constituent power “cannot be reduced or

traced back to anything external or posterior to itself. It signifies a new legal beginning. In other

words, the constituent act occurs outside a given constitutional horizon to radically redefine the

very contours and content of that horizon.”

The resort to this “outside/inside” dichotomy suggests a qualitative distinction between

the “constituent power” and what would be the “ordinary law-making power.”10 Constitutional

scholars have extensively labored on this distinction, and it is seemingly mandatory for both

classic and contemporary constitutional law treatises in Argentina, Brazil, Portugal and Spain to

elaborate on why and how the power to establish a constitution is qualitatively different from the

power to amend it or to make ordinary law under it. Significant disagreement on the answers to

both questions among constitutional scholars is hard to find. The basic tenets of this almost

consensual understanding can be organized in two sets of propositions.

First, a discussion of the “why’s” is in order. As a concept originally developed to

neutralize the “divine right” vocabulary of monarchical power legitimization, the concept of

constituent power is a theory about the conditions under which acts of power are legitimate – a

9 Andreas Kalyvas, “Popular Sovereignty, Democracy, and the Constituent Power”, Constellations, v.12, N. 2, 2005, p. 228. This picture is usually contrasted to the concept of “Derivative Constituent Power”, which is the power to elaborate new constitutional norms within the basic structure, rules and limits set by the original exercise of “Constituent Power” (Andreas Kalyvas, 2005, p.228). See also Ulrich K. Preuss, “Constitutional Power-Making for the New Polity: Some Deliberations on the Relations between Constituent Power and the Constitution”, Cardozo Law Review, v.14, 1993, 639-660. 10 Carlos de Cabo Martin, LA REFORMA CONSTITUCIONAL EN LA PERSPECTIVA DE LAS FUENTES DEL DERECHO. Madrid: Trotta, 2003.

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theory which gives legal expression to the notions of national sovereignty and, more recently,

popular sovereignty.11 Just as divine right theories of sovereignty were built on the factual

assumption that the power was centered on monarchs, constituent power theories were meant to

deal with a new political scenario: as the French Revolution had supposedly shown, the ultimate

de facto power would belong to the organized nation. As the French political theorist Joseph

Sieyès’ – another seminal reference for European and Latin American constitutional scholars

discussing constituent power – has remarked, “constituent power would be exercised one way or

another,” because “a nation cannot be subjected to a given constitution” and it is “always in a

position to change its constitution.”12 The important point here is not that we are before a purely

political phenomenon, conditioned only by the de facto power available for the constitution-

making entrepreneurs, but rather that the nation (or, more contemporarily, the people) is always

entitled to give itself a new set of fundamental principles.13 Although exercises of this power are

inevitable, they can also be legitimate if they can be traced back to “the nation” or “the people.”

Although this almost purely normative take on the phenomenon of constitution-making creates

more perplexities than it clarifies problems, constitutional scholars are usually satisfied by

simply noting the political context in which the concept was developed and emphasizing that the

distinctively legal perspective on the problem lies ahead in the distance: it only begins when we

compare the power to enact a constitution with the seemingly structurally similar power to create

other “ordinary” norms for a given polity.

11 Paulo Bonavides, CURSO DE DIREITO CONSTITUCIONAL, 2007, p.141; Simone Goyard-Fabre, LES PRINCIPES

PHILOSOPHIQUE DU DROIT MODERNE, 1997, pp.128-165. 12 QU’EST-CE LE TIERS ETAT?, originally published in 1789, p.180-187, as quoted in Jorge Miranda, MANUAL DE

DIREITO CONSTITUCIONAL, 2007, vol.II, p.126. 13 This natural law-like idea can hardly be dismissed as a relic of a long gone past. Strong traces of it can be found even on contemporary constitutional scholarship. See, for instance, Akhil Amar, “The Consent of the Governed”, 94 Columbia Law Review 457, 1994.

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This takes us to the second set of issues - the “how’s.” First and foremost, constituent

power’s trait of [political] sovereignty implies that it is [legally] original. While anyone claiming

to wield ordinary law-making power must be able to show that there is a valid legal norm or act

that authorizes “from the top” the exercise of such power – a typically Kelsenian conception of

the legal order - claims of would-be constituent power-wielders need not to be (and usually are

not) based on any existing legal rules. For the same reasons, this power is initial: its exercise

does not imply a claim to legal compliance, because it is logically prior to all future legal acts,

which must comply with this initial one to be considered “legal” themselves. Another important

characteristic follows from this picture: procedurally, constitution-making acts are

unconditioned, as they have no legal obligation to follow any specific formalities. Although the

specific formulation or choice of words and adjectives (original, unconditioned, initial etc) may

vary, this combination of traits can be consistently found on the major constitutional law treatises

on the countries under examination.14 The picture thus formed is one in which acts of

constitution-making happen outside the scope of existing legal limits.

At this point, two caveats are timely. First, the “unlimited” character of the constituent

power applies only to would-be obligations to the existing (a) national and (b) legal rules, as

14 For Argentina, see the review of the literature in Genario Carrio, NOTAS SOBRE DERECHO Y LENGUAJE. Buenos Aires: Abelardo-Perrot, 1994, p.244-248; see also Jorge Vanossi’s classic two-volume treatise on constitutional theory and constituent power (TEORIA CONSTITUCIONAL, vol. II, 1976). For Brazil, see the classic treatises from Manoel Goncalves Ferreira Filho (CURSO DE DIREITO CONSTITUCIONAL, 32nd ed., 2006), Raul Machado Horta (DIREITO CONSTITUCIONAL, 4th ed., 2003 and Paulo Bonavides (CURSO DE DIREITO CONSTITUCIONAL, 20nd ed., 2007; see also Nelson de Souza Sampaio’s classic monograph, O PODER DE REFORMA CONSTITUCIONAL, 1954. For Portugal, see Jorge Miranda’s seven-volume treatise, specially volume II (MANUAL DE DIREITO CONSTITUCIONAL, 6th ed., Coimbra: Coimbra, 2007) and J.J. Gomes Canotilho, DIREITO CONSTITUCIONAL E TEORIA DA

CONSTITUICAO, 3ª ed, 1998, p.76-77. See also Jorge Miranda, TEORIA DO ESTADO E DA CONSTITUICAO. Rio de Janeiro: Forense, 2005. For Spain, see the literature review in Carlos de Cabo Martin, LA REFORMA

CONSTITUCIONAL EN LA PERSPECTIVA DE LAS FUENTES DEL DERECHO, 2003; the classic treatment of the topic in the Spanish legal literature can be found in Pablo Lucas Verdú, CURSO DE DERECHO POLÍTICO, 2 v., 1980. See also Pedro de Vega, “La Reforma Constitucional y la Problemática del Poder Constituyente” in Temas Claves de la Constitución Española, 1988.

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there is some dispute as to whether it is under a distinctively legal obligation to obey norms that

are external to that particular legal system. These “external norms” can be either supra-positive

“natural laws” (often associated in these countries with ideas such as human dignity, rule of law

and democratic governance),15 or established principles of international law and human rights.

There is some variation, however, regarding the specific arguments and perspectives adopted by

scholars to justify these external limits.

Second, scholars from all four countries tend to recognize that any concrete, historical

constitution-making act is subject to political, economic and social constraints in general.16 Even

in a scenario with a complete lack of normative limits, not only reformers would have limited

time and resources, but they would also operate within cultural and political constraints. So, to

frame the propositions described in the previous paragraphs in the most precise way possible, we

can say that there is broad convergence on the proposition that an act of constituent power is

under no legal obligation under the norms established under the previous constitution, although

(a) it may be de facto limited by social circumstances and (b) it would still be open to dispute

whether if it must comply with external norms such as international law principles and human

rights.

This doctrinal consensus begins to get even somewhat thinner when it comes to

establishing the effects on the existing laws of a conscious display of constituent power.17

15 See, for instance, Jorge Miranda, op. cit, 2007, p.134. 16 See, for instance, Marcelo Rebelo de Sousa, DIREITO CONSTITUCIONAL: INTRODUÇÃO À TEORIA DA

CONSTITUIÇÃO, 1979, p.62. 17 The only level of analysis in which I could identify true, substantial disagreement concerns the limits that should bind concrete agents or institutions, on a given time in a country’s history, that are claiming to represent the constituent power of the people and to have the authority to elaborate a new constitution. It seems to me, however, that this is more of an empirical disagreement - a debate on whether specific, historically situated institutions and agents fulfill the legitimacy requirements needed in order to make valid “constituent power” claims. In this picture,

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Constitutional scholars agree that even if, on one hand, the newly enacted constitution replaces

the old foundations of the whole legal order, it is also true that, on the other hand, it does not

simply set aside all previous statutes and regulations. This is usually justified on the grounds of

expediency, as a measure to protect legal certainty and the stability of social interactions.

To characterize what happens when a new constitution is enacted against a background of

countless pre-transition statutes, Jorge Miranda, one of Portugal’s most influential constitutional

scholars and a leading authority on constituent power and constitution-making, resorts to an

interesting analogy with private law. Miranda compares this situation and the civilian contract

law novação concept.18 When two parties already engaged in a pre-existing contract agree to

change just some of its clauses, this agreement is taken as novação. This means that the parties

are taken as celebrating a new contract, a new agreement, from which all the clauses – not only

the new ones, but also the ones that are identical to the existing, previously contracted clauses –

get their validity and their inter partes binding force. Just as all the contract clauses (even the

ones that remained textually unchanged) are taken as grounded on this more recent manifestation

of agreement, as it replaces the previous one, old statutes are now considered to be grounded on

the more recent expression of constituent power. This process was interestingly described by

Kelsen as a “shortcut” or “fast track” to reenacting again, one by one, all the statutes that the

constitution-makers consider to be compatible with the new constitution.19

the convergence described above remains untouched, as scholars would still agree on the implications of recognizing a given assembly as exercising legitimate constituent power, even when they disagree on whether this recognition is due or not on a given case. 18 See, Jorge Miranda, TEORIA DO ESTADO E DA CONSTITUICAO. Rio de Janeiro: Forense, 2005, p.460-461; see also Jorge Miranda, MANUAL DE DIREITO CONSTITUCIONAL , v.7, pp.105-106 (claiming that the novação on the level of constitution-making is similar to a “displacement of the rule of recognition” on H.L.A. Hart’s terms). 19 Hans Kelsen, TEORIA GERAL DO DIREITO E DO ESTADO, São Paulo: Martins Fontes, 2005, p.172.

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However, given that these statutes were enacted by a regime with fundamentally different

political principles, at least some of them would not be reenacted verbatim by the hypothetical

constitution-makers due to their incompatibility with the new constitution’s substance.20 These

statutes would be either altered or set aside. In this sense, the enforcement of the new

constitution will lead either to (a) a change in the way they are interpreted or, if this is not an

option given the statute’s wording, (b) to their removal from the legal system. As Diez Picazo

puts it, “the implementation of a new political order or of a new constitution makes it necessary

to endow the rest of the legal system or parts of it with a new meaning.”21

According to the standard view, judges should thus always try to interpret these statutes

in a way that is compatible with the new text.22 This process of “endowing the old statutes with

new meaning,” however, is not always feasible. Sometimes there is no plausible interpretation of

a given law that will enable it to be applied under wholly different constitutional principles. On

this topic, significant disagreement tends to surface where we once found consensus, as scholars

have very different ideas on how to name, frame and understand what exactly “happens” with an

existing statute when a new constitution is enacted. To make a long doctrinal debate brief, with

all the risks of oversimplification that this entails: some scholars frame the issue as the

20 According to the traditional scholarship on these countries, pre-constitutional laws can only be invalid on the basis of their substantial, not procedural compatibility with the new constitutional text (see, for instance, Manuel Aragon, “La Sentencia del Tribunal Constitucional sobre Leyes Relativas al Regimen Local, Anteriores a La Constitucion”, Revista Española de Derecho Constitucional, v.1, 1981, pp.188. 21 Luis Diez-Picazo, EXPERIENCIAS JURÍDICAS Y TEORIA DEL DERECHO, 1975, p.309. 22 Manuel Aragon, op. Cit, 1981, p.189.

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application of a chronological criterion (the older norm is revoked by the more recent one), while

others see a hierarchical criterion at play (the superior norm prevails over the inferior one).23

The first group argues that the old statutes are revoked by the new higher law being

enacted, while the second frames this as a case of “supervening unconstitutionality.” This is not

necessarily a sterile, purely academic distinction, as this controversy has important practical

implications concerning the judicial arrangements in place in a given country. Naming the

phenomenon as “abrogation” or “revocation” means that any judge will be able to recognize it

when deciding a case, with the subsequent refusal to apply the old statute. If, on the other hand,

the problem is framed as one of “supervening unconstitutionality,” then only those institutions

with judicial review powers can decide that the old statute does not belong to the legal system

anymore.24

It is not hard to see how the implications of this debate in countries where each and every

judge can declare a statute unconstitutional, such as Brazil and Argentina, will be substantially

different from its implications in countries that have adopted the so-called “Kelsenian” model of

a constitutional court that monopolizes the power to engage in judicial review.25 This means that

the doctrinal convergence on the effects of a new constitution does not lead to a consensus, on a

more practical level, of who and how should make decisions about the compatibility of an old

23 Pablo Perez Tremps, TRIBUNAL CONSTITUCIONAL Y PODER JUDICIAL, 1985, p.146. See also Francisco Rubio Llorente, “Sobre la Relacion entre Tribunal Constitucional y Poder Judicial en el Ejercicio de la Jurisdiccion Constitucional”, Revista Espanola de Derecho Constitucional, n.4, 1982; Manuel Aragon, op. Cit, 1981. 24 Manuel Aragon, op. cit, p.188-190; Rubio Llorente, op. Cit,; Pablo Tremps, op. Cit. 25 See Mauro Cappelletti, THE JUDICIAL PROCESS IN COMPARATIVE PERSPECTIVE, 1989; Louis Favoreau, “Constitutional Review in Europe”, in Louis Henkin & Albert J. Rosenthal (eds.), CONSTUTIONALISM AND RIGHTS -

THE INFLUENCE OF THE U.S. CONSTITUTIONS ABROAD, 1990. For a persuasive critique of the “Kelsenian” pedigree of constitutional courts such as the Spanish and Portuguese ones, see Alec Stone, THE BIRTH OF JUDICIAL POLITICS

IN FRANCE, 1992; see also Alec Stone Sweet, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE, 2000, chapter V.

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statute with the new constitution. Before these implications can be further explored, we need to

take a closer look on the second level of regime rupture – the reorganization of judicial

institutions.

III. The judicial institutions front: from doctrinal convergence to practical divergence

III.1. Judges as bureaucrats x Judges as partners of the falling regime

When we turn to the other axis of legal change described in Section I – the reorganization

of judicial institutions – the trans-Atlantic convergence among Argentina, Brazil, Portugal and

Spain gives way to very different outcomes. This practical divergence is particularly interesting

due to the fact that all four countries passed through a democratic transition not from totalitarian

regimes, but from authoritarian ones, in the sense defined by Juan Linz - a feature that makes the

reorganization of the judicial institutions a much less obvious task than one would expect from a

country experiencing a regime change. According to Linz, authoritarian regimes are “political

systems with limited, not responsible, political pluralism, without elaborate and guiding

ideology, but with distinctive mentalities, without extensive nor intensive political mobilization,

except at some points in their development, and in which a leader or occasionally small group

exercises power within formally ill-defined limits but actually quite predictable ones.”26 Stepan

and Linz argue that, as a result, and in stark contrast with totalitarian regimes, “in most

authoritarian regimes some bureaucratic entities play an important part”, because “these

26 Juan J. Linz, “An authoritarian regime: the case of Spain”, in Erik Allard and Yrjö Littunen (eds.), CLEAVAGES, IDEOLOGIES AND PARTY SYSTEMS (Helsinki, 1964), pp.291-342. Quoted in Juan J. Linz & Alfred Stepan, PROBLEMS

OF DEMOCRATIC TRANSITION AND CONSOLIDATION: SOUTHERN EUROPE, SOUTH AMERICA AND POST-COMMUNIST

EUROPE, 1996, p.38.

16


bureaucratic entities often retain or generate their own norms, which imply that there are

procedural and normative limits on what leaders can ask them to do in their capacity as, for

example, military officers, judges, tax officials and police officers.”27 Moreover, as authoritarian

regimes usually ground their claims to legitimacy on their supposed capacity to perform better

than more democratic alternatives, establishing a bureaucracy that is perceived by the public at

large as efficient and professional can be considered a worthy goal for authoritarian rulers. This

creates a scenario in which the access to several important placements within the government

structure – including positions in the judicial structure - can be distributed on the basis of

technical expertise, and not only (or not even primarily, in some cases) on explicit and ritualistic

loyalty to the regime.28

When leaving such a regime, reformers tend to inherit a relatively independent judiciary

– not as independent as it is expected to be under a democratic, rule of law-type regime, but

neither a crude smokescreen for authoritarian leaders’ discretion.29 Paradoxically, this semi-

independence of courts leaving authoritarian regimes is a problem for political reformers, as

judicial institutions which had been openly manipulated by the previous regime would make it

very difficult to defend the thesis that no changes in the judiciary would be necessary for the

transition process. In Germany, for instance, the explicit judicial collaboration with the Nazi

27 Linz & Stepan, 1996, p.54. 28 Linz & Stepan, 1996, p.47. This is one of the main differences between totalitarian and authoritarian regimes. 29 As Martin Shapiro has interestingly argued, the fact that rulers in general take measures such as restricting courts’ jurisdiction, creating and empowering ad hoc decision-making bodies (such as military courts), and taking control of judges’ training and socialization process is in itself evidence of some degree of independent judicial law-making power and of judges’ willingness to use it – otherwise, no such measures would need to be taken by the regime (Martin Shapiro, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS, 1981, Chapter I).

17


regime made it easier for the reformers to make the case that restructuring the judicial

institutions was a necessary measure for the transition to be complete.30

As the judicial and national-socialist elites had a low level of integration with each other

when the Nazi party rose to power, Hitler would have to purge the judiciary before he could rely

on courts to exercise social control in his terms – which he did. Since the Weimar Republic,

German judges were experiencing a process of increasing “politicization”, in the sense that they

began moving from a limited to a more expanded conception of their role and of which and how

legal sources they should take into account when discharging their professional duties.31 These

“politically motivated searches for the ‘fundamental idea’ of the law” in spite of statutory

language established a professional environmental in which judges felt freer to deviate from

legislative authority, but with no precise indication of which other authority would they be

following.

Controlling the administration of justice was a “major bulwark of the National Socialist

regime”32, which meant that the German judiciary was an obvious target for the process of

“political synchronization” (Gleichschaltung) implemented on all levels of civil service, in all

30 For an account of the collaboration between the higher levels of the III Reich judicial institutions and the Nazi administration, see H.W. Koch, IN THE NAME OF THE VOLK: POLITICAL JUSTICE IN HITLER´S GERMANY, 1989, especially Chapter II. 31 According to Hans Köch (1989:13-14), one “key event [that] allowed the judiciary to break for the first time with the formality of the law” was the devaluation of the Mark. The applicable laws stated that one Mark in gold equaled one Mark in paper currency. After 1923, however, paper currency was de facto worthless. The tension between statute and economic reality led to the judicial overturning of the law, accepting the fact that “debts of any kind, including longstanding ones, could no longer be paid in paper currency”. According to Köch, after the Mark decisions, judges in Germany increasingly conceived of themselves no longer as “servants of the law”, but as law-makers filling the vacuum left by legislative failure or inaction. The change in the apparently trivial technicality of the treatment of the Mark set the judiciary, like so much else in Weimar Germany, on a slippery slope, the full results of which were only seen in the Third Reich” (1989:14), as the reliance by judges on “general clauses” “required only their infusion with the new ideology in order for the existing law to be applied in accordance with National Socialist principles” (1989:15). 32 Andrew Szanajda, THE RESTORATION OF JUSTICE IN POSTWAR HESSE, 1945-1949, 2007, p.173.

18


branches of government, to crystallize the National-Socialist idea of the state as a unified entity.

“Synchronization” implied the removal of any conflicting social and political forces from the

way of the executive.33 A network of social organizations – all of which were connected to the

Nazi party and to the state apparatus, and in which membership was mandatory for any legal

professional, including judges – was employed by the regime to recruit the judicial institutions.34

These organizations acted in a twofold way – by indoctrination (mandatory lectures and classes

on Nazi ideology) and by more or less direct supervision of /spying on judges and prosecutors,

which was much more effective than the first one.35 Hitler’s interference in the judicial sphere

grew year after year, and any lingering vestiges of judicial independence were completely

abolished when World War II began, as the Fuhrer enacted a decree establishing his status as

“supreme judge” on 26 April 1942, with the power to adopt any measure to re-orient the judicial

system in any way necessary for the war effort36. In this scenario, as Andrew Szanajda puts it:

The tenure of judicial office was also made contingent upon their political reliability. This ensured their conformity in applying National Socialist ideology to the administration of justice. Political reliability became a condition for civil service appointment, which, in practice, was more important than technical qualifications. (…) Judges were to act as followers of the Fuhrer, and thereby apply the law with the internal conviction of the political will of the nation and

33 Andrew Szanajda, 2007, p.7. 34 Sznajda notes that any lawyer who refused to join these organizations risked being considered “an enemy of the regime” (2007, p.13) 35 Andrew Szanajda, 2007, p.13. See also p.19. 36 Andrew Szanajda, 2007, p.18. Both formal and informal strategies were adopted to “synchronize” the judicial and the political systems, ranging from the issuance of “Judges’ letters” in which Hitler singled out decisions that were “good examples” of National-Socialist judicial decision-making, to the enactment of bills such as the “Law for the Reconstruction of the Professional Service” (April 1993, which basically purged the civil service (including the judiciary) from people who were considered to be “dangerous” to the regime) and the “German Civil Service Law” (January 1937, determining that “servants that didn’t demonstrate sufficient guarantees of support for the National Socialist State were to be dismissed”) (Szanajda, p.15-19). The results of these laws were easily noticeable. For instance, according to a statement from the Prussian Minister of Justice in 1934, only 374 judges remained in office out of 1.034 who were in place before the Professional Service Law (Szanajda, 2007, p.15). Although there is no evidence of judges being shot or even arrested, a large number of them was removed from office or transferred to other positions in the civil service where their questionable loyalty would pose a smaller problem to the regime (2007, p.29).

19


the state leadership in protecting the security of the nation, as if Hitler himself were hearing the case.37

The integration between then Nazi regime and the German judicial system was thus near-

absolute. Given this background, it came as no surprise that the fall of the Nazi regime promptly

posed to the occupation authorities the question of what do with the judicial system.38 Existing

judges were explicitly considered to be part of the problem, and at first they hardly were

considered as potential allies or resources for building the new institutional framework that the

country needed. Indeed, the initial perceptions of the Allied authorities regarding the III Reich

judges were of complete distrust. This was taken into account by transitional decision-makers

(both Allied and, later, German ones) in two different senses.

First, on the level of the judicial personnel, they immediately and radically tried to

remove “tainted” judges from office. Indeed, the very first proclamation (labeled “SHAEF n.1”)

by the Allied authorities in occupied Germany suspended the operation of all German courts

within occupied territory. Military Government Law n.2 confirmed the suspension sine die, with

Allied military courts were taking cases that under normal circumstances would be sent to the

German courts. In a later official document, the occupation authorities say that the situation had

improved a little, saying that “by January 1946 confidence in the efficiency and political

reliability of the newly opened German courts had been restored to such an extent that Military

Government courts were able to turn over to them all cases which did not directly involve the

37 Szanajda, 2007, pp.15-16. 38 According to Szanajda, “The Allied aim of destroying the National Socialist regime in the administration of justice was to be accomplished by abolishing the laws and courts that had supported the regime and by restoring a judicial organization with and independent judiciary” (2007:42).

20


interests of the Allied Forces or US nationals”39. Even so, German judicial personnel were still

far from reliable in the eyes of the new government. The “Four Power Agreement on

Denazification and Trial of War Criminals” (April 23, 1947) directed the Control Council of the

U.S. occupied Germany to “to take all measures necessary to ensure that only those individuals

are employed in a judicial capacity or as public prosecutors who are considered by reason of

their political and moral qualities to be capable of assisting the development of genuine

democratic institutions in Germany”. Assessing who were the “tainted judges”, however, was

not a simple task, and the transitional authorities decided to do so by casting the widest net

possible, preferring to incur in the risk of false positives by requiring all judges to answer to

“questionnaires” (Fragebogen) about their personal history, in order to screen their affiliation or

sympathy towards National Socialism.40 The fact that this radical approach to the De-

Nazification of the judicial system was later diluted for practical reasons does not invalidate an

important point: as a matter of principle, it was clear to the transitional authorities that the

judicial staff was too much tainted by the Nazi regime to be relied on. 41

Second, and now not on the level of human resources but of the constitutional structures

themselves, the establishment of a Constitutional Court (first in the individual Länder, and then

on the federal level) was motivated by a distrust of the German judges, among other reasons.

39 Legal and Judicial Affairs (Cumulative Review), OMGUS Special Report, January 1947, p.1. Another “Directive to the Commander in Chief of the US Forces of Occupation” (JCS 1779), issued in July 15, 1947, stated in clause 11.a) that the Commander in Chief would “exercise such supervision over German Courts as is necessary to prevent the revival of National Socialist doctrines, to prohibit discrimination … to enforce occupation directives etc. You will foster the independence of the German Judiciary by allowing courts freedom in their interpretation and application of the law and by limiting control measures to the minimum consistent with the accomplishment of the aims of occupation.” 40 Andrew Snazjda, 2007, p.113. 41 As the trade-off between De-Nazification and expediency became clearer, the high standards adopted by the transitional authorities had to be relaxed (Snazjda, 2007: 177). In the end, around 85% of people removed from public office by transitional authorities were later reinstated (2007:153).

21


According to Snazjada, the establishment of a constitutional court in the Hesse Land was

intended to “[mitigate] the ordinary courts’ claim of the right to judge the constitutionality of

governmental enactments”, which “had been one of the most dangerous features of the justice

system in the Weimar Republic, in which reactionary judges had used that claim to sabotage

progressive measures, citing their right of judicial independence”.42 This also applies to the

creation of the Federal Constitutional Court; commentators have long observed that distrust of

the judiciary was one of the reasons that led to the adoption of a centralized model of judicial

review in [then West] Germany.43

In Argentina, Brazil, Portugal, and Spain, the scenario was considerably different.

Judicial institutions and judicial staff were not seen as completely “tainted” by the previous

regime, even though their actions during the regime were not celebrated as heroic. With varying

degrees, in all these countries there was a more or less widespread perception that judges were

just “doing their job” during authoritarian rule – applying statutes, even though those statutes

would be incompatible with a democratic regime. This distinction is important for my argument

in this paper insofar as it allows us to understand how countries with so many similar features in

their non-democratic experiences and legal traditions could have displayed so different outcomes

42 Andrew Snazjda, 2007, p.69-70. The same point regarding the Weimar experience with judges being overtly political and hindering progressive legislation is made by Donald Kommers, THE CONSTITUTIONAL JURISPRUDENCE

OF THE FEDERAL REPUBLIC OF GERMANY, 1989, pp.7-8. 43 See, for instance, Donald Kommers, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF

GERMANY, 1989, pp.3-4: “The conservative reputation and public distrust of the regular judiciary at the time of the Basic’s Law creation was sufficient to ensure that the power of judicial review would be concentrated in a single tribunal”. Moreover, as Kommers also notes, this also influenced to some extent the design of the Federal Constitutional Court itself (and not only the decision to create it): participants in original debates concerning how to organize the constitutional structures in occupied Germany recommended “a plan of judicial recruitment that would broaden the political support of the new tribunal”, including measures such as election of judges, participation of both houses in selecting the president, selection of one-half from high federal and state courts (Kommers, 1989:09), in order to make sure that the would-be Constitutional Court would not be “dominated by professional judges drawn wholly from a conservative judiciary” (Kommers, 1989: 11)

22


when it came to dealing with pre-democratization judicial institutions. A radical approach – such

as the dismantling of pre-transition justice in Germany – was not an available outcome in none of

these countries. What reformers had to discuss and determine was to which extent the judicial

institutions could and should be kept in place, not if they should be kept in place.

Still, the differences and similarities between all these scenarios should be accepted with

some caveats. First, Argentina, Brazil, Portugal and Spain exhibited varying degrees of judicial-

military-political integration, and this also led to different relationships and degrees of military

encroachment in the judicial institutions.44 Second, for my purposes here, even the difference

between the “totalitarian” and “authoritarian” strategies of dealing with the judicial system is

best understood as one of degree, as even in Nazi Germany the integration between the regime

and the judicial staff was never fully completed. This is somehow attested by the fact that, even

after a decade of purges and constant indoctrination and supervision, in the early 40s Hitler was

still finding it necessary to adopt new measures to exert more control over German judges,

suggesting that, although they could be supporters of National Socialism, at least some judges

were not willing to do anything in the name of the regime.45

What matters for my argument is that, when compared to the transition from Nazi

Germany, the four countries analyzed in this section displayed scenarios in which determining to

44 Anthony W. Pereira (Of Judges and Generals: Security Courts under Authoritarian Rule in Argentina, Brazil and Chile”, in Tom Ginsburg & Tamir Moustafa, RULE BY LAW: THE POLITICS OF COURTS IN AUTHORITARIAN

REGIMES, 2008) argues that, typically, the greater the degree of integration, the more the regime relies on courts to persecute political dissidents. 45 As argued by Andrew Szanajda, 2007, p.18. An even more significant evidence that the purges and controls adopted by Hitler did not accomplish full judicial/military/national-socialist integration is the fact that the “Final Solution” was implemented through the para-military apparatus of the SS, not through the judiciary or through military judicial-like bodies (see Anthony W. Pereira, Of Judges and Generals: Security Courts under Authoritarian Rule in Argentina, Brazil and Chile”, in Tom Ginsburg & Tamir Moustafa, RULE BY LAW: THE POLITICS OF COURTS

IN AUTHORITARIAN REGIMES, 2008, p.39).

23


which extent pre-transition judicial institutions would be kept in place was in itself a matter of

contested political understanding and decision-making, and in which reformers would be

required to spend much more political energy and social mobilization to remove judges from

their offices. In the end, this decision-making process led to different outcomes in the four

countries.

To phrase the point through the framework presented in the previous section, the intensity

of the “constitutional change” variable in countries leaving behind an authoritarian regime does

not necessarily lead to the same degree of change on the level of judicial institutions. Let us now

analyze how the four countries reacted to this problem.

III.2. Brazil

Brazil had what can be considered a typical scenario of a “constitutional new beginning.”

The political change was instantly translated into a new constitution – a symbol of the successful

struggle for democratization. Even though the transition was negotiated with political elites of

the authoritarian regime, once the National Constituent Assembly began deliberating, there was

no doubt that, at that moment, what was at stake was nothing less than the making of new,

original decisions on the most fundamental legal level. The resulting constitution looked both

forward and backwards.46 Instead of just saying an explicit “never again” to some widespread

46 In this sense, it is difficult to tell if this Constitution is predominantly “aspirational” or “aversive”, in Kim Scheppele’s terms (see “Aspirational and aversive constitutionalism: The case for studying cross-constitutional influence through negative models”, International Journal of Constitutional Law, v.1, n.2, pp. 296-324, 2003.

24


practices of the previous regime47, it also pointed to new directions in a way that had never been

attempted in Brazilian Constitutional Law.48 Indeed, in its substance, the Brazilian Constitution

of 1988 has no parallel in the country’s history. With its generous and controversial provisions

on social and economic rights and its commitment to social justice, both in broad principles and

in specific rules, its textual promises were indeed ambitious. All elements were seemingly in

place for a perfect match between the “legal” and the “political” new beginnings.

However, the rupture with the previous regime was not as radical as it would seem at

first. I do not mean to emphasize the “negotiated” character of the transition on the political

level, which has been discussed in depth in the political science literature.49 The problem to be

highlighted is on the level of the legal institutions. The new constitution was substantially

different from the previous ones, but the judicial institutions that were ultimately expected to

redeem the ambitious constitutional promises had not changed during the transition. The

Supreme Court, for instance, remained exactly the same. The same Justices appointed by the

authoritarian regime were kept in place. Under the new constitution, however, the Supreme

Court´s jurisdiction and powers of review would be significantly increased.

When compared to the radical changes in Congressional and Presidential offices

throughout the 20th Century, the Brazilian Judiciary is more on the side of continuity than

47 Article 5, III, for instance, explicitly states that “no one shall be subjected to torture, nor be treated in a degrading way”. 48 Article 3 establishes that “eradicating poverty and social inequalities” is one of the fundamental goals of the Federal Republic of Brazil. “Goal-establishing” provisions of this sort can be found in the Portuguese Constitution of 1976 and, to a lesser extent, in the Spanish Constitution of 1978 – both of which were highly influential in the constitution-making process in Brazil in the 80s. 49 See, for instance, Luciano Martins, “The ‘Liberalization’ of Authoritarian Rule in Brazil”, in Guillermo O’Donnell, Philippe Schmitter, Laurence Whitehead (eds.). TRANSITIONS FROM AUTHORITARIAN RULE: LATIN

AMERICA. 1986. For a more recent review of the transitional process in Brasil, see also Alfred Stepan & Juan Linz, PROBLEMS OF DEMOCRATIC TRANSITION AND CONSOLIDATION, 1996.

25


discontinuity. The only time that the Brazilian Supreme Court (STF) was shut down by a

President was in the late 1930s, by the then dictator Getulio Vargas, who later re-opened the

Court and appointed a whole set of justices. Even though the authoritarian regime of 1964-1985

had adopted court-packing measures in 1965 (expanding the size of the Court from 11 to 16) and

in 1968 (impeaching three of the several Justices who had been appointed before the coup in

1964)50, the mere fact that it accepted the Court to work with the pre-coup justices is very

significant. Federal Supreme Court justices experienced the 1985 democratization primarily not

as progressives or conservatives, but as members of a century-old institution that had seen the

rise and fall of democracy (in 1945 and in 1985) and of dictatorship (in 1937 and in 1964), while

struggling to present themselves as a technocratic, rather than as part of a political institution.

According to this self-perception, the Court dealt primarily with law, not with ideologies – be

them left-wing or right-wing.51 What is more, this self-perception grounded the basic narrative

by which the STF Justices presented themselves and their institution during the transitional

period, as argued in a recent work of press coverage on the STF during the 80s and early 90s.52

Indeed, one just has to analyze how the STF participated in the constitutional convention

as a political actor, trying to influence the outcomes of the deliberation and the final text of the

constitution, to perceive how successful the institution was in crafting an image of

“professionalism” and “impartiality” even as the power of the military regime that had appointed 50 Justices Victor Nunes Leal, Hermes Lima and Evandro Lins e Silva. 51 This professional narrative surfaced, for instance, in the famous remark that Chief Justice Álvaro Ribeiro da Costa made when President Castello Branco, appointed by the military regime, suggested in a 1964 speech that the Judiciary should help “the Revolution” to achieve its goals of national security and economic growth. Justice Ribeiro da Costa – who was sympathetic to the military coup and had been appointed by Castello Branco himself – harshly replied that the Supreme Court and the Judiciary branch could not be associated with any revolutionary ideology, and any attempt from the Executive to control the Court would led to his immediate resignation from the office of Chief Justice. 52 Fabiana Luci de Oliveira, “O Supremo Tribunal no Processo de Transição Democrática”, REVISTA DE

SOCIOLOGIA E POLÍTICA, 22, p.101-118, jun 2004.

26


all the Justices was crumbling. The fact that the STF lobbied as an institution and also through

its individual Justices to block proposals that would drastically re-organize the judicial

institutions in Brazil might seem astonishing - but it is undeniable. STF Justices had expressed

their intention to participate in the constitutional debates as early as 1985, as publicly stated in

several newspapers at the time.53 In a recent interview celebrating the 20 years of the enactment

of the constitution, when asked about the interaction between the STF and the Assembly, Rafael

Mayer, who was the Chief Justice back in 1987-1988, explicitly admitted that he “tried to be

present [in the constitutional deliberations], defending the institutional interests of the STF

regarding its jurisdiction, its powers and its values”, adding that Ulysses Guimarães (the

President of the Assembly) “had always been responsive to the claims made by the STF

regarding the constitutional text”.54

Rafael Mayer’s description is essentially correct: the STF was one of the most successful

interest groups acting within the constitutional convention in Brazil. This should not surprise

anyone that browses the main newspapers of the constitution-making period (1985-1988). Even

before the Assembly convened (1987), the STF officially sent “suggestions” to the “Commission

of Notable Jurists” summoned by President Sarney in 1986 – the so-called Comissão Afonso

Arinos, named after its coordinator, a famous Brazilian constitutional scholar and politician.

These suggestions were published in major newspapers and included an explicit disapproval of

the idea of creating a constitutional court, or even of transforming the STF into a European-style

constitutional court – proposals that were being discussed within the Comissão Afonso Arinos

53 See, for instance, the Folha de São Paulo coverage discussed in depth by Fabiana Lucia de Oliveira, op. cit, 2004, p.108. 54 Supremo Tribunal Federal, Notícias do Supremo, “Presidente do Supremo entre 1987 e 1989 lembra a promulgação da Carta Cidadã”, October 4th 2008, available on the STF website (www.stf.jus.br/noticias).

27

http://www.stf.jus.br/noticias


and that were dismissed in the STF message as exemplifying an unjustified urge to “import

foreign models”.55

After the formal opening of the constitutional deliberations within the National Assembly

in 1987, the STF Justices were shocked to learn that the first draft submitted to the the Sub-

Committee on the Judiciary Power in March 1987 by Committee Coordinator Plínio Sampaio

(from the left-wing Worker’s Party, or PT) included the creation of a brand-new constitutional

court above the STF. The current Justices’ reactions to this proposal were immediate and harsh,

even though Sampaio’s project – which failed to be approved even in the first round of voting

within the Judiciary Sub-Committee – established that they would keep their positions until

reaching the mandatory retirement age determined in the 1967 Constitution.56 In all their

manifestations, the Justices and supporters of the STF echoed the same chord: the Supreme

Court was a century old institution with a respectful record of fundamental rights protection, a

republican institution that had developed a constitutional jurisprudence untainted by any of the

two dictatorships experienced by the country since the beginning of the Republic in 1889.57

These claims echoed a lecture that the conservative jurist Oscar Dias Correa, who was

Associate Justice in the STF from 1982 to 1989, had given in 1985, when the debates about the

future Constitutional Assembly had just begun. In that lecture - which was covered in a

sympathetic light by the media58 – Correa had said that there was no clear political rupture

55 Estado de São Paulo, “Sugestões do Supremo Tribunal Federal à Comissão Provisória de Estudos Constitucionais”, August 3rd 1986. 56 Actually, in all the debates connected to the constitution-making process in Brazil in the 80s, only one proposal made public established the compulsory and immediate retirement of all Justices appointed by the military regime: the constitutional draft written by left-wing legal scholar Fabio Konder Comparato in 1986 at the request of the Worker’s Party (PT). Given the widespread belief that the STF had just “done its job” during the authoritarian era, it can hardly be a a surprise that such a radical proposal would not even be officially mentioned once the Assembly convened. 57 See, for instance, the newstory “Supremo quer ajudar a preparar a Constituição”, O Globo, 26 May 1985. 58 Estado de São Paulo, “Já temos duas Constituições, diz o Ministro. Por que uma terceira?”, May 5th 1985.

28


between the military regime and the incoming democratic one and summarized the institutional

scenario in the authoritarian period in these [favorable] terms: “the Executive branch exceeded

its powers, the Legislative branch accepted these excesses and the Judiciary enforced the laws

enacted in this way”.59 It is hard to imagine a more to-the-point description of the self-image of

the STF at that moment – and of the official image that they successfully presented to the public

opinion. Indeed, such claims regarding the “untainted” and “honorable” tradition of the STF

were largely accepted by the big media in Brazil, which began a systematic onslaught against

any proposals made within the Assembly that was seen as “diminishing” the power of the STF,

such as the creation of a constitutional court or the imposition of a 9 or 12-year term for the

Justices.60

59 Correa was by far the most aggressive “Justice-lobbyist” in the public debates between 1985-1988. He even published a book in 1998 with the suggestive title Supremo Tribunal Federal, Brazil’s Constitutional Court (O

SUPREMO TRIBUNAL FEDERAL, CORTE CONSTITUCIONAL DO BRASIL, 1987), to defend the bold thesis that the STF had traditionally been better than any European constitutional court at protecting fundamental rights and liberties, even during military regimes. 60 It is hard to keep track of how many op-eds, editorials and scholarly articles were published between 1985 and 1993 defending this alleged “century-long tradition of the STF as a guardian of fundamental liberties”. I have checked only the newspaper articles, op-eds and editorials that are included in the Brazilian Senate database on the Constitutional Convention of 1988 – and is hard to find any materials in the media that did not defend the STF against any changes that would supposedly amount to a decrease in the institution’s power or prestige. Just to mention a few examples taken from the most important newspapers at the time, see: from Jornal do Brasil, Luis Orlando Carneiro, “O Supremo e a Constituinte”, August 22nd 1986; Editorial, “Dever de Justiça”, 19 October 1987; Estado de São Paulo: newstory “Jogo Político Não pode ser Feito Contra Regime”, 30 July 1987; Ives Gandra Martins, “O Supremo Tribunal Federal, Corte Constitucional”, October 15th 1987; Carlos Eduardo Thompson Flores Lens, “O STF e a Nova Constituição”, May 5th 1987; Correio Braziliense: Mauricio Corrêa, “STF: Uma instituição que precisa ser preservada”, 17 August 1987; “Cordeiro condena alterações no STF”, 22 August 1987; O Globo: Editoral “Destruição de Tradições”, 17 May 1987; newstory “Néri da Silveira critica proposta de novo Tribunal”, 19 May 1987. [INSERT FOLHA DE SÃO PAULO REFERENCES] Moreover, several STF Justices or former Justices also published in journals and newspapers staunch defenses of the “jurisprudential legacy of the STF”, heavily criticizing the alternative of creating a constitutional court and even less drastic options such as imposing a term limit for the Justices or creating a “constitutional chamber” within the STF with the monopoly over the power to do abstract review. For a review of the 1987-1988 debates on this issue by a Supreme Court Justice, see, for instance, Carlos Mario Velloso, O Supremo Tribunal Federal, Corte Constitucional, REVISTA DE

INFORMACAO LEGISLATIVA, 1993, n.120 (“It would not have been possible [for the Constituent Assembly] to set aside the century-old judicial review experience that had been practiced by the STF, which amounts to a Brazilian doctrine of judicial review”).

29


The campaign waged by the STF Justices was extremely successful. Not only their

discourse and narrative of the “century-old” institution was adopted by the media, but they

managed to negotiate directly with Assembly President Ulysses Guimarães and with President

José Sarney – a fact that was publicly acknowledged by all parties involved, as the media

coverage of the events make clear.61

As a result, the new constitution left the Supreme Court basically untouched, only

transferring to the newly-created Superior Court of Justice the jurisdiction over questions

concerning the interpretation of federal statutes. It was in this scenario that, shortly after 1988,

several direct actions of unconstitutionality (“Ação Direta de Inconstitucionalidade,” or simply

“ADIn”) dealing with core innovations of the new Constitution were filed before a Supreme

Court that was basically unchanged since the end of the dictatorship. Several social actors were

eager to see the constitutional promises enforced – but they were all frustrated by the Court’s

reluctance to assume any responsibility for telling other branches how to behave. One telling

example is the Court’s interpretation of the President’s power to enact “provisional measures”

(Medidas Provisórias -- executive decrees that would be as binding as any other statute, even

before Congress had decided to approve or to reject them). Article 62 originally stated that “in

important and urgent cases, the President of the Republic may adopt provisional measures with

the force of law and shall submit them to the National Congress immediately.” Both the Vargas

dictatorship and the military regime had similar (and much criticized) devices of “Presidential

Legislation”. The representatives in the National Constituent Assembly could hardly be

61 A newstory by Folha de São Paulo explicitly recognized that “the judicial lobby was the most efficient one” in the Assembly (“JudiciáriJustice Sidney Sanches formally visited Congress to “ask for their support” to the STF’s cause, as reported in O Globo, “Sanches Pede Voto para o STF”, 07 May 1987. An accurate review of the lobbying by the STF can be found in the newstory by Gilberto Dimmenstein, “Propostas sobre Controle Constitucional Provocam Polêmica”, Folha de São Paulo, August 2nd 1987.

30


interpreted as trying to reproduce the exact mechanisms of Executive legislation adopted by

previous regimes. Instead, they tried to combine flexibility with accountability, by explicitly

stating that the “provisional measures” should be instantly submitted and subjected to the

Congress’ final word and establishing a time limit after which the measure would cease being

valid if not ratified by the legislators. However, in a very controversial case interpreting Article

62, the Court declared that it could not second-guess the President’s decision of what counted as

“important” and “urgent”. This was an area of almost complete presidential discretion. Deciding

what is “important” and “urgent,” said the Court, is a political question and, therefore, a non-

justiciable issue. In practice, this meant that the President could, among other things, indefinitely

reissue provisional measures that were about to expire, prolonging their validity for months and

even years.62

In most of these cases, the majority of the Justices – which would be gradually replaced

by appointees of democratically elected Presidents – refused to enforce the plain meaning of new

constitution, usually by resorting to jurisprudential ideas that were very familiar to observers of

the Court institutional history.63 These decisions were taken in spite of the new legal text that

somewhat explicitly ascribed to the Supreme Court a decisive role in the separation of powers

arrangements. Numerous other examples of this pattern of timid interpretation of provisions that

62 Under the original phrasing of article 62 (which passed through a major reformulation in 2001), the Federal Supreme Court accepted this practice as constitutional. See, for instance, ADIn 295/DF, ADIn 1516/RO and ADIn 1397-MC. 63 In this sense, one cannot help noticing the striking similarities between the Court’s interpretation of article 62 and its interpretation of analogous provisions in the previous Constitution (1967), which endowed the President with near-total legislative powers. See, for instance, the majority opinion by Justice Aliomar Baleeiro in the Extraordinary Appeals n.62.731 and 62.739, both decided in 1967. The rationale and the words employed by the Supreme Court, interpreting article 62 more twenty years after these two cases, are almost identical.

31


demanded a more aggressive role can be found in recent Brazilian history.64 The problem here is

not the Court reaching specific outcomes in these decisions – it is legitimate to argue, for

instance, that the Court´s reading of the scope of its power to analyze “Medidas Provisórias” was

correct. The problem lies rather in the fact that these outcomes were justified by means of

restrictive understandings of separation of powers that, although jurisprudentially developed

under extremely different political conditions, where brought to the post-transition judicial forum

without any hesitation or serious discussion regarding their proper place in a democratic regime.

At some point, as the 1990s passed, the Court’s attitude began to change; today, several

contemporary commentators agree that Brazil has been for some years a scenario of

“judicialization of politics,” which key political issues are decided in the judicial arena – or at

least in its shadow.65 This is a very different picture from the Court’s stance in the aftermath of

the supposedly “constitutional new beginning” of 1988.

III.3. Portugal and Spain

However important may be the differences between their transitional processes, Portugal

and Spain can be grouped together for the purposes of this essay. The problems and solutions

found in both countries regarding the two variables under analysis here (change on the level of

constitutional norms and change on the level of judicial institutions) are very similar. This is not

64 Two other examples would be the Supreme Court´s first understandings of the new mechanisms to deal with unconstitutional omissions (the Ação Direta de Inconstitucionalidade por Omissão and specially the Mandado de Injunção), as expressed in several rulings from the late 80s to the late 90s. 65 See Rogerio Bastos Arantes, “Constitutionalism, the Expansion of Justice and the Judicialization of Politics in Brazil”, in Rachel Sieder, Line Schjolden & Alan Angell (eds.). THE JUDICIALIZATION OF POLITICS IN LATIN

AMERICA. 2005, p. 231-262.

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to say, however that the two countries experienced the same degree of freedom in the

constitution-making process, which they clearly did not. Indeed, while Spain is considered to be

a typical case of free, consensual constitution-making, resulting in a constitutional text with no

identifiable non-democratic traits, the Portuguese scenario is different. First, the 1975

constitutional assembly in Portugal co-existed with a “Council of the Revolution,” which not

only competed with the Constitutional Assembly, but even threatened it at some moments.

Second, the resulting constitution enshrined some non-democratic powers to military agencies,

although on a provisional basis.66

Much more important than these differences of degree is the fact that both countries (a)

marked the political rupture with the elaboration of new and distinctively ambitions constitutions

and (b) implemented changes in the judicial institutions that would be in charge of applying the

new constitutions. Actually, in Portugal and Spain, something had to be done on the level of

judicial institutions precisely because reformers expected these new and ambitious constitutions

to matter in a way that constitutions in these countries had never mattered before.67

In Spain, history had shown that judges could be excessively shy or excessively

aggressive. 68 Both attitudes could jeopardy reformers’ plans. According to the familiar defense

66 Alfred Stepan & Juan Linz, 1996, p.83. 67 Luis Prieto Sanchis makes the interesting remark that this moment represents the convergence between two different conceptions of what a “constitution” is: the U.S. tradition of facing the constitution as a norm as any other one (although hierarchically supreme), fully redeemable by any judge, and an European pre-20th century tradition of seeing constitutions as statement of fundamental principles and shared projects of social transformation directed to the legislator, being thus outside the sphere of action of judges and courts. The result of this convergence is a constitution which expresses a program for social change and can be redeemed to some extent by the judicial institutions – a combination of ambitious normative content and judicial enforceability (Luís Prieto Sanchís, “Neoconstiucionalismo y Ponderación Judicial”, in Miguel Carbonnell (ed.), NEOCONSTITUCIONALISMO(S), 2005. The Portuguese Constitution of 1976 and the Spanish Constitution of 1978 nicely illustrate this trend. See also Eduardo García de Enterría, LA CONSTITUCIÓN COMO NORMA Y EL TRIBUNAL CONSTITUCIONAL, 1985. 68 See the brief review made by Pablo Perez Tremps, 1985, pp.75-77.

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of the “Kelsenian” model of review by European scholars, European judges as a whole lacked

“constitutional conscience,” that is, they did not have the training or the proper mindset to

discharge the function of interpreting constitutions.69 Trained to apply legal norms within a strict

state-centered hierarchical structure, without seeing themselves as mediators between the society

and the state70, Spanish judges would not be seen by reformers as reliable partners in the

interpretation of a norm so heavily imbued of political meaning as the new constitution. The

same could be said about Portuguese judges.

Although this was not a topic of detailed debate in the Spanish process of constitution-

making before 1978, the problem was explicitly acknowledged by reformers: were the existing

judicial institutions up to the task of enforcing the new constitution?71 The negative answer is

made explicit by the decision to create a new institution with the monopoly over the power to

declare statutes unconstitutional – the Spanish Constitutional Court, which began operating on

15 July 1980. By this institutional innovation, the possible danger represented by existing judges

to the “new beginning” would be somewhat neutralized, even though the rest of the judiciary

would remain unchanged.72

A similar setting can be found in Portugal. Although the current Constitutional Court

would only be created in 1983, the leaders of the 1975 revolution – mostly military officers –

institutionalized a 9-member Constitutional Commission (Comissão Constitutional) to rule on

69 Perez Tremps, 1985, p.199. 70 See J.J. Toharia, “Judicial Independence in Authoritarian Regime: The Case of Contemporary Spain”, Law and Society Review, v.9, 1975, pp. 475-496. 71 Perez Tremps, 1985, p.108. 72 Judges can raise a “constitutional question” and ask the Constitutional Court to decide on the validity of a given statute under the constitution, but they cannot by themselves declare any law unconstitutional. At least on a formal level, this mechanism guarantees the Constitutional Court´s monopoly over judicial review, while simultaneously preventing the enforcement of an unconstitutional law on concrete cases (Perez Tremps, 1985, p.128).

34


the constitutionality of laws enacted under the newly-framed constitution (1975). Although it

lacked the necessary institutional safeguards for independence (for instance, its President was

always appointed from within the Council of the Revolution) and its decisions had no binding

force over the Council, it was arguably functionally equivalent to a Constitutional Court. Indeed,

(a) the Council rejected the conclusions of only 13 of all the 213 advisory opinions issued by the

Commission; moreover, (b) the consistence of its legal reasoning is suggested by the fact that the

current Portuguese Constitutional Court has, on several occasions, mentioned rulings by the

Commission as important (though obviously not binding) precedents.73

The precise effects of the enactment of the new constitutions on existing statutes,

however, was anything but clear from these institutional innovations. In the years after the

transition, constitutional scholars and constitutional courts in both countries proved to be acutely

aware of the practical implications of the choice between “unconstitutionality” and “derogation”,

already discussed in section II, supra.74 If, on one hand, old statutes are “derogated” by the new

constitution, then any judge can deny applicability to them on a given case, just as any judge can

refuse to apply a statute that has been abrogated by a more recent one. If, on the other, these

statutes are “unconstitutional” in the strict sense, just like any post-constitution statutes can be if

they violate the fundamental law, then only the Constitutional Court can declare these statutes

void. What is at stake is nothing less that the distribution of the power of judicial review among

ordinary judges and the Constitutional Court.

73 António de Araújo, “A Constução da Justiça Constitucional Portuguesa: o nascimento do Tribunal Constitucional”, Análise Social, v.XXX, 1995, pp.881-946. 74 For Portugal, see Jorge Miranda, TEORIA DO ESTADO E DA CONSTITUIÇÃO, 2005, p.464-465. For Spain, see Franciso Rubio Llorente, “Sobre la Relación entre Tribunal Constitucional y Poder Judicial en el Ejercicio de la Jurisdicción Constitucional”, Revista Española de Derecho Constitucional, v. 2, n.4, 1982; Pablo Perez Tremps, TRIBUNAL CONSTITUCIONAL Y PODER JUDICIAL, Madrid, Centro de Estudios Constitucionales, 1985.

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Gradually, scholars and courts converged on the “derogation” thesis, so that this is a

settled question nowadays both in Portugal and in Spain.75 This convergence reflects a conscious

(although gradual) choice to enable ordinary judges to engage in dialogue with the Constitutional

Court about the constitutionality of statutes, even if this is prima facie restricted to pre-

constitution statutes. For my purposes here, the important point is that the issue of how the pre-

transition statutes would be affected was seen by legal-political actors both in Portugal and in

Spain as a function of two factors: (a) how explicit was the rupture on the level of constitutional

norms (that is, if what was being done was the creation of a new constitution by an act of

“constituent power”); (b) how the power to interpret and enforce the core commitments of the

new regime should be distributed to judicial institutions and judges that had been socialized

under authoritarian rule. I believe that reformers’ awareness of (b) is illustrated by the decision to

create a Constitutional Court (or the Constitutional Commission in Portugal), even though other

political factors might provide a more realistic causal explanation of why these institutions were

created.76

75 In 1979, two years before the Constitutional Court was implemented, the Spanish Supreme Court issued a decision taking one step towards the “derogation” thesis (SSTS n.9/1979 and 10/1979). A little more than one year after it began operating, the Constitutional Court had to decide on this issue (STC n.4/1981). A little later (STC n.14/1981), the Constitutional Court decided that it would only rule on this kind of cases if there is “dispersion of interpretations” between ordinary judges around the country. For a review of the Constitutional Court’s jurisprudence on this issue, see Pablo Perez Tremps, 1985, p.155. 76 In this sense, Ran Hirschl´s thesis of the creation of judicial review mechanisms as “hegemony preservation efforts” by political elites, allied with judicial and economic elites, is worth mentioning (TOWARDS JURISTOCRACY. THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM, 2004; see also Jorge Correa Sutil, “The Judiciary and the Political System in Chile: the dilemmas of judicial independence during the transition to democracy”, in Irwin P. Stozky (ed.), TRANSITION TO DEMOCRACY IN LATIN AMERICA: THE ROLE OF THE

JUDICIARY, 1993, arguing that the Constitutional Court in Chile, which was created by the fading dictatorship, has contributed to “locking in” pre-transition policy preferences). If there is a clear single core of post-authoritarian political power leading the constitution making process (something which did not happen in Portugal and Spain), then it is not likely that the reformers will create strong constitutional review institutions to adoption of strong constitutional review mechanisms (see Pedro Magalhães, “The limits to judicialization: legislative politics and constitutional review in new democracies”, PhD dissertation, Ohio State University, 2002, quoted in Hirschl, 2004, pp.41-42).

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III.4. Argentina

The Argentine transition did not count with explicit and radical change on the level of

constitutional norms. In this sense, the legal change strategy of the transition leaders focused

much more on the judicial reorganization axis. Judicial institutions had survived for a long time

under conditions of very low political independence, under the shadow of

“ultrapresidentialism.”77 The measures to cope with this legacy, however, were different from

the ones adopted by Spain and Portugal – namely, the creation a Constitutional Court to enforce

the new constitution. Instead of creating a new institution to guide the elaboration of the

constitutional principles, the transitional leaders appointed new justices to the existing Supreme

Court. This led to an interesting scenario of authoritarian judicial legacy lingering after the

institutionalization of new political principles after a change to a democratic regime (in 1983),

and even after a significant change (although not as radical as the one in Portugal and Spain) in

the judicial institutions. On the “constitutional norms” front, this scenario is the polar opposite of

what was done in the Brazilian case, as the immediate measures adopted to give legal form to the

message of political change in Argentina in the 80s did not include the elaboration of a new

constitution, but included at least a change of Supreme Court justices. Only in 1994 was a major

constitutional change adopted.

The main strategy adopted by the “transitional” President, Raul Alfonsín (1983-1989),

was thus clearly focused on changing judicial personnel and punishing the violations of human

rights by the previous regime. Alfonsín replaced all the Supreme Court justices with his own

77 Rebecca Bill Chávez, THE RULE OF LAW IN NASCENT DEMOCRACIES: JUDICIAL POLITICS IN ARGENTINA, 2004, pp.5-12; see also Sarah Dix, 2004.

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appointees, while bringing the 1853 Constitution back as the symbol of a “restoration.”78

Actually, court-packing was not a new measure in the Presidential repertory in Argentina. The

institutional insecurity faced by Argentine judges in the authoritarian periods – specially the

Supreme Court Justices – is extensively documented79; this unstable situation continued well

beyond the transition, as “court-packing” was a recurrent measure in Executive-Judiciary

relations in Argentina well into the 1990s. As soon as he became President, Raul Alfonsín

planned to dismiss the entire Court by a simple decree, claiming to have a popular mandate to

“tune” the Court to this democratization plan. When they learned about Alfonsín’s intentions,

however, the then-justices decided to resign, giving him the opportunity to nominate a whole

new court, choosing lawyers, prosecutors, judges and civil servants that, although not necessarily

enthusiastic partisans of Alfonsín´s specific projects for the country, were clearly committed to

the democratization.80

78 For an analysis of “restorative” transitions, see Ruth Teitel, 2000. Interestingly, this “restorative” approach to constitution-making contrasted to statements Alfonsín made, one decade after rising to power, about the redemocratization as “the” new beginning, not as a return to a past when the democratic institutions were working relatively well: “In our society, the building of democracy could not be viewed simply as process of restoration; it was essentially a process of creating new institutions and implementing new routines, new habits, and new ways for people to live together. It was not a matter of reconstructing a system that was functioning well until it was interrupted by authoritanianism, but of establishing new foundations for an authentic democratic system.” (Raul Alfonsín, “Never Again” in Argentina”, Journal of Democracy, v.4, 1993, p.15.) 79 Gretchen Helmke, 2005, pp.63-68; Sarah Dix, 2004; Rebecca Bill Chavez, 2004. See also Horacio Verbitzsky, HACER LA CORTE: LA CONSTRUCCIÓN DE UM PODER ABSOLUTO SIN JUSTICIA NI CONTROL, 1993. For a recent on contemporary “court-shaping” efforts by Argentine Presidents, see Pablo Abiad & Mariano Thieberger, JUSTICIA

ERA KIRCHNER: LA CONSTRUCCIÓN DE UM PODER A MEDIDA, 2005, 80 Rebecca Bill Chavez, 2004, p.39; see also Owen Fiss, “The Right Degree of Independence”, in Irwin Stotzky (ed.), TRANSITION TO DEMOCRACY IN LATIN AMERICA: THE ROLE OF THE JUDICIARY, 1993. Things became much more drastic on the judicial independence front with Menem’s (1989-1999) rise to office. By a combination of dubious measures – from bullying to “bribing” Justices to retire from the Court, as well as expanding the number of Justices -, he created what was labeled the “automatic menemista majority” – 6 out of 9 Justices, who could in theory uphold any Presidential measure, regardless of its dubious legality (but see Sarah Dix, 2004, arguing that this “majority” also made principled decisions that were important steps towards a more independent judicial review in the late 90s and after 2000). The view that Supreme Court Justices should share the President’s political preferences was a somewhat entrenched idea in some sectors of Argentina’s public officeholders, even after 1983. One of Menem’s appointees, Justice Barra, once remarked that his only “bosses” were “Peron and Menem”. In the 90s, one political leader running for the Presidency famously committed the gaffe of saying, in a press conference, that the

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For my purposes here, it is important to note that, in Argentina, these changes on judicial

institutions did not necessarily mean that previous statutes would be taken as “swept” by the new

political beginning – an outcome that is arguably consistent with the traditional doctrine of

constituent power, as a new constitution was not explicitly elaborated. The most eloquent

example of this pattern is the permanence, even after the transition, of the so-called “de facto

doctrine,” by which the Supreme Court endowed the laws passed by military government with

the same validity as the laws passed by democratically elected governments. The first assertion

of this thesis happened in the day after General Uriburu’s coup in 1930, when the Court

spontaneously issued an opinion stating that the newly-formed government “is a de facto

government, the title of which cannot be judicially disputed with success by persons in so far as

it carries out the administrative and political function derived from the possession of force as an

instrument of order and security.”81 In practice, statements of this sort – which were issued

several times during the twentieth century, in cases in which the Supreme Court was asked to

decide the constitutionality of decrees enacted by self-proclaimed “revolutionary governments” –

amounted to a self-limiting understanding of the scope of judicial review. “De facto”

governments claimed to derive their lawmaking power from their popular legitimacy and

acceptance, so it was beyond the Court’s power to review the merits of that claim.82 A law

enacted by a self-proclaimed “revolutionary” government who wielded the power to enforce its

directives was as valid as one passed by a civilian, democratically elected government.

problem of lack of judicial independence from the Executive was easy to be solved – the President just had to “order the judges to act independently”. 81 Rebecca Bill Chavez, 2004, p.48. 82 Rebecca Bill Chavez, 2004, p.48. Interestingly, as Benjamin Berger has pointed to me, the Courts did not simply acknowledge the legitimacy of the Government of the day. Actually, the vocabulary of legitimacy was not employed at all. The concession made by the Court was due to the fact of force, not on legitimacy grounds.

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The post-1983 Court, appointed by Alfonsín, took a critical step in leaving behind the

legal remains of the authoritarian regime.83 A few weeks before assuming office, the new

Justices asserted in the Aramayo decision that:

“The restoration of the constitutional order in the country requires that the powers of the national State or of the Provinces, ratify or throw out explicitly or implicitly the acts of the de facto government, including those removing magistrates belonging to the Judicial Power”84

The intensity of the repudiation of the “de facto” doctrine in this ruling – and its practical

implications for the institutionalization of the transition – is made clear by the Court´s choice of

words: the newly-elected democratic branches can throw out (desechar), explicitly or implicitly,

the norms enacted by the authoritarian regime. This means that Congress could not only revoke,

for instance, the Amnesty Laws enacted by the falling Junta, but that it could consider them null

and void ab initio, as if they had never produced any legal effects.85 This understanding was

repeated in the Dufourcq ruling, in which the Court stated that “the validity of the norms and acts

emanated from the de facto Executive Power is conditioned upon the explicit or implicit

recognition of the constitutionally elected government.”

To the extent that they would suggest that the change of Justices would be sufficient to

break with the authoritarian legal legacy even in the absence of a new constitution, such rulings

could seriously challenge my arguments in this paper – that is, if they had remained the law of

the land in post-1983 Argentina. That, however, was not the case. The Argentine pattern of 83 For an extremely useful analysis of all the decisions regarding the de facto doctrine by the Alfonsín and Menem Courts, see Martin Bohmer, “The Supreme Court of the 80s and the Supreme Court of the 90s: A Dialogue on the Argentine Rule of Law”, Paper presented at the 2000 SELA Conference. 84 In re Aramayo (CS 2/14/84). The importance of this paragraph cannot be overstated. Bohmer (2000) describes it as “an historical event” in itself. 85 Bohmer, 2000, p.54.

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Executive-designed Supreme Courts – which was reinforced by Alfonsín’s court-packing plan,

even if it was justified due to other considerations in a transitional scenario86 – was to re-appear

with full force when the next President, Carlos Saúl Menem (1989-1999), rose to power and

immediately took measures to secure a majority of like-minded Justices in the Court.87 The

repudiation of the de facto doctrine in 1983 was judge-made – so, it made sense that all it took

was the appointments of new judges to turn back the clock and resurrect the doctrine as it had

never been set aside in the first place. In the Godoy case, decided in December 1990, a Menem-

controlled Supreme Court promptly accepted the Menem´s claims that the de facto doctrine was

alive and well, as it recognized the binding force of “an extensive jurisprudential line [that] was

developed that referred to the juridical condition of the de facto governments”.88

In the following decade, aspects of the authoritarian legacy (such as the “de facto

doctrine”) and the new constitutional provisions of 1994 would battle each other for the judges’

minds – a battle on whose outcome the fate of judicial empowerment in Argentina was

ultimately depending. The Court’s oscillation between reliance on and repudiation of the “de

facto doctrine” – depending on the government of the day – meant that the clear political rupture

and repudiation of the military past did necessarily not affect, from the judicial branch point of

view, the validity of the legal norms that the previous regime had enacted. It is not hard to see

the connection between this outcome and the tools that the doctrine of constituent power

provides to judges in the civil law tradition. In the absence of what most judges (even the newly

appointed ones) could consider to be a manifestation of higher lawmaking power, seen through

86 Actually, there is another court-packing episode in Alfonsín’s tenure that is worth mentioning. In 1987, the President sent to Congress a law increasing the number of Justices to seven (Bohmer, 2000, p.75). 87 See note 80, supra. 88 Bohmer, 2000, p.78. See also Rodriguez, op. cit, 2005, pp.48-50, referring to the Godoy case.

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the lenses of “constituent power”, their legal training led them to implement a narrative of partial

legal rupture, however explicit and radical the political rupture might have been.

IV. Conclusion: new constitutional beginnings as partial legal ruptures

In section II, we have seen that the doctrinal tool of constituent power purports to make

radical constitutional change a binary concept manageable by judges: if a new constitution was

enacted, the legal order is being re-founded ex novo; anything short of the enactment of a new

constitution (explicitly setting aside any legal obligations towards the existing institutions and

statutes) is simply a reform within the same constitutional order and the same regime. In the

previous section, four brief case studies of transitional process in countries with similar legal and

political background showed that, although the concept of constituent power may modulate the

judges’ perception of what happened in the country and what should be done with pre-transition

statutes (as in Argentina), from the point of view of political reformers it does not have necessary

implications on the “judicial institutions” front of transition.

Putting these provisional conclusions in the two-axis framework developed in section II,

we would have the following scenario (Figure 2):

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Judicial institutions

Portugal / Spain

Argentina

Brazil

Constitutional norms

The two-axis framework allows us to account for important differences between the four

countries that would be otherwise ignored if we focused just on the constitution-making

dimension. Through the “constituent power” lenses, Brazil, Portugal and Spain would be taken

as having identical degrees of legal rupture with the past regime (the dotted line in Figure 2),

while Argentina would be put in the opposite side of the spectrum. Once we add the judicial

institutions axis, we are better equipped to understand how the Portuguese and Spanish

experiences were different both from the Argentine and the Brazilian. Due to factors that are

beyond the scope of this essay, reformers in the Iberian Peninsula were more aware of the need

to combine constitutional law-making with judicial reorganization, thus mitigating or countering

the risk of having judges transforming full legal ruptures in partial ones.

To further explore the implications of these conclusions, it is worth comparing the

scenarios under examination with a picture of constitutional change that is more familiar to the

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U.S. legal tradition – incremental changes or “partial revolutions” that are never thought to

sweep all the existing legal order and replace its foundations. One familiar way of framing the

Court’s activity in this scenario is resorting to Ackerman’s concept of intergenerational

synthesis.89 Analyzing the way in which the Supreme Court has dealt with outcomes of

constitutional politics throughout U.S. constitutional history, Ackerman shows that, although

manifestations of popular sovereignty implementing a change in fundamental constitutional

principles settle a core of issues, they necessarily leave several other questions and potential

normative conflicts unaddressed. In this scenario, Courts will inevitably face the task of

developing, case by case, the implications of “The People’s” decision about formal racial

equality, for instance, on contract law, federalism and other areas of law and social life. Each

new manifestation of popular sovereignty adds a new settled core to this constitutional narrative,

while making the “unsettled” zone even more potentially conflictive. Courts must decide how a

constitutional amendment solving issue A in time 3 has changed previous manifestations of “The

People” about B, in time 2, and C, in time 1. The fundamental decisions are thus inevitably

incomplete, even when perfectly “codified” through constitutional amendments.

A graphic representation of this idea can be found in Figure 3, below:

89 Bruce Ackerman, 1991.

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FIGURE 3

Rupture on the level of judicial institutions

The curve represents the different combinations between degrees of partial change in

constitutional norms and degrees of partial change in judicial institutions that form the sphere of

“intergenerational synthesis”. The dotted horizontal line represents the hypothetical point in

which one can say that judicial institutions have been drastically (and not only incrementally)

changed. The dotted vertical line represents the border between an act of amendment of an

existing constitution and the act of creating a new constitution – that is, the border marked by the

concept of “constituent power”. What is important to emphasize is that the curve of

“intergenerational synthesis” never touches any of the two lines. In this sense, it contains the two

basic possibilities exemplified so far by U.S. constitutional history – clear change by

amendments combined with focal or no change in judicial institutions (Reconstruction), and

New constitution

New judicial institutions

“intergenerational synthesis”

Rupture on the level of constitutional norms

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clear change in judicial institutions with little or no change on the level of constitutional norms

(New Deal). In both situations, the same constitution and the same Supreme Court were kept in

place.

In practice, how different is this situation from cases such as Argentina and Brazil? It

seems to me that they are much more similar than the concept of “constituent power” would let

us believe. The analysis of the cases discussed in the previous section illustrates how judges

dealing with pre-constitution statutes necessarily act as if the constitution-making act left

something up for grabs. Even the most explicit statement of “constitutional legal beginning,”

when combined with judges employing the “constituent power” framework, would be seen as

incomplete, fragmented and partial. In this sense, trying to change the constitutional order from

within the rules of the legal game will necessarily create situations of intergenerational synthesis

instead of the full-fledged ruptures with the previous regime. The concept of “constituent power”

thus misses all the action – or, to be more precise, it sees too much action and change where

there is actually continuity.

The point here is not to say that the distinction between the power to amend a constitution

and the power to create a new one is meaningless.90 What I want to suggest here is that this

distinction can be meaningful, but, as a concept devised to be a decision-making tool for post-

90 One such argument against the usefulness of the distinction between making a new constitution and amending an existing one was Akhil Amar, objecting that, if it is conceptually possible to pass an amendment changing the text of each and every single provision in a given constitution, there is little point in saying that this does not amount to the creation of a new constitution (Akhil Amar, “The Consent of the Governed”, 1994). Discussing Amar´s argument is beyond the scope of this essay, but I like to raise two objections. First, the conceptual distinction between amending and creating is relevant because at least some constitutions (such as Brazilian Constitution and the German Fundamental Law) establish that some provisions cannot be amended by constitutional reformers. Second, the drafters of a new constitution do not need to follow the procedures established in the current one – but Amar´s hypothetical change of the whole text by amendment would still have to comply with the existing constitutional amendment rules regarding procedures.

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47

transition judges, whatever sense it may make from the reformers’ point of view depends heavily

on how the judicial institutions are being changed. On one hand, as the case of Brazil shows,

deep change on the level of constitutional norms combined with little change on the level of

judicial institutions can to partial rupture from the point of view of post-transition judges. On the

other hand, as the Argentine experience can teach us, judges might take the concept of

constituent power seriously enough to make it important to express the new political beginning

by the familiar strategy of enacting a new constitution. The concept of constituent power can

only be useful when it is recognized as insufficient.

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