Separation of powers and external relations: the role of constitutional courts in judicial review of international treaties

The judicial control over the constitutionality of international treaties can affect the Executive in the conduct of foreign affairs. A negative court decision declaring a treaty to be unconstitutional can give rise to strong political and legal consequences. How constitutional courts behave in cases of constitutional review of international treaties? Is there a judicial activism or self-restraint in judging the compatibility of treaties with the national constitution? Based on a legal-comparative analysis between the Brazilian Federal Supreme Court and the Supreme Court of Argentina the paper will show that cases of control over the constitutionality of international treaties are rare and in general both courts consider the sensitive foreign policy interests involved when formulating their decisions. The comparison between Brazil and Argentine is justified by the similarity between their constitutional review systems and the lack of comparative studies on South American courts.

Integrity and the Virtue of Openness on Higher Courts Reasoning

If the conviction in the existence of a single right answer is a presupposition of acting with integrity, and that such a premise should always guide the interpretative attitudes of a judge, how then to reconcile it with the legal reasoning typically raised in Courts? Dworkin himself, nor interpretivists in general, have managed to provide adequate replies to the objections which point to a practical and operational difficulty in applying the “Hercules protocol” in a collegiate deliberation, despite admitting its possible and morally relevant usage when the decision derives from an individual judge. This paper proposes that the pursuit of integrity in Higher Courts reasoning requires individual responsibilities (inputs) to be complemented by collective responsibilities (outputs). Openness is an intellectual virtue pointed to be pursued by real agents who cannot be Hercules. In Courts, it also conveys the idea of cooperation and, at the same time, reciprocal control among peers. This study was financed in part by the Coordenação de Aperfeiçoamento de Pessoal de Nível Superior – Brasil (CAPES) – Finance Code 001

From enforceability to justiciability of the right to pre-primary education: institutional obstacles to the Brazilian strong model of judicial review

What are the limits and possibilities of judicial review in protecting the right to pre-primary education in the face of Public Administration´s omissions? The research explores the construction of the enforceability and justiciability of this right guaranteed in the Brazilian Constitution, to discuss the explanatory factors of Executive omissions and non-compliance with judicial decisions. It describes the legislation that guarantees this right for children and their parentes and the main characteristics of the expansive jurisprudence established by the Brazilian Supreme Court, which decided that the Judiciary can determine the implementation of public policies, establishing sanctions for public agents who fail to comply with its determinations. The main hyphotesis is that institutional characteristics of Brazilian justice system, such as fragmentation, autonomy and weak accountability, are an obstacle to the realization of this right through the courts.

Assessing Judicial Reasoning A Methodological Proposal for Constitutional Decision-Making Courts in South America

The research was developed in 2 phases: the first one intended to compare and to describe variables that influence the judicial decision-making process. Then, backed on different approaches we propose a tool that allows to measure the judicial reasoning within the boundaries of Constitutional decision-making Courts in South America . Although the name of the Institution varies in the hemisphere, we will treat it as Constitutional Court indistinctly . The main perspective adopted in this work related to the behavior of judges is the labor market one . However, it doesn’t mean it is fully subscribed, instead, it is taken as one of the most important and comprehensive contributions in describing theories of judicial behavior. And one of the greatest advantages of conceiving a judge as a worker, “and thus a participant in the labor market” relies in the possibility of “creating a model of judicial behavior that generates hypotheses testable with data.”

Political parties, voting systems, and the twin challenges of fragmented and unduly concentrated political power

Constitutions typically structure a fairly “thin” system of democracy, by (1) creating a set of political institutions, (2) granting voting and free speech rights, and (3) specifying the terms of elected officials and the mode of election of the president, where there is one. But constitutions relatively rarely address the other essential components of democracy that give any system its more specific contours. These include the voting system for the legislature, almost everything about political parties, and internal legislative procedures. These key institutional features of democracy are mostly left to legislation and/or to self-regulation. This paper explores the possibility and desirability of constitutionalizing these democratic choices, and the merits of different design options. In particular, it will focus on whether and how constitutional and institutional design might address the twin contemporary democratic challenges of fragmented and unduly concentrated political power.

Adjudicating the Roles of Political Parties in Context: Beyond the Right-Based Understanding Through the Case of Taiwan

Political parties are traditionally conceived to be private entities enjoying constitutional rights. Yet, it fails to fully recognize their changing dynamics with citizens and other political institutions in democratic politics. Thus, the essay studies Judicial Interpretation No. 728 made by the Constitutional Court of Taiwan (TCC), which concerns the Act Governing the Settlement of Ill-gotten Properties by Political Parties and Their Affiliate Organizations, a law aiming to reform the authoritarian legacy of the Kuomintang, the majority party during the authoritarian rule in Taiwan. Under the Act, the affiliated organizations of the KMT were ruled to return the properties obtained from the state under the authoritarian regime. Against these affected entities’ argument that their constitutional rights were violated, the TCC upheld the legislation. It shows how a contextual understanding of political parties’ functions can help rethink their evolving status in democratic politics.