Politics behind the vail of law: how fundamental rights discourse can hide excesses in judicial review. An empirical study from Brazil.

In the aftermath of the military dictatorship, the constituents for the Brazilian Constitution had the mission of compensating its citizens for the excesses of power endured. Thus, the current charter promises to uphold every fundamental right, from health to recreation. And guarantees it giving individuals ample access to courts via judicial review. Brazil has adopted a hybrid model of judicial review, allowing individual courts and judges to exercise concrete review (inter parte consequences) and the Supreme Court to conduct abstract control (erga omnes results). In this way, the long list of fundamental rights protections is used – and abused – every day in Brazilian judicial forums.
This paper seeks to explore how judicial review can be overused, giving judges the power to exercise politics behind the vail of the law. It does so through an empirical study which compares judicial reasoning taken from decisions to judicial motivation observed from semi-structured interviews.

Inaccessible Rights: The Unrealised Potential of the Bulgarian Constitutional Court

The current Bulgarian Constitution, adopted after the fall of communism, introduced a Constitutional Court entitled to centralised judicial review. This unprecedented institution was declared guardian of the fundamental rights entrenched in the new constitution. However, individual citizens were not granted direct access to this court. Moreover, its review powers were subjected to considerable procedural and substantive limitations, making it one of the most restricted institutions of its kind in the region. The paper explores how these limitations render fundamental rights almost practically irrelevant in individual litigation cases. The first part of the study, based on archival research of the constitution-making process, explores the rationale of the constitution makers and its potential links to the communist legacy of this process. The second part addresses landmark decisions of the Bulgarian Constitutional Court, where it failed to unfold its rights-protecting potential.

Individuals in the Constitutional Court: Complaint, Protest, Scandal, and Weapons of the Weak

This paper comparatively examines the means for resistance of individuals against the constitutional judiciary. Starting with the case of the Slovak Constitutional Court, the paper critically assesses the different ways in which the Court relates to and interacts with an individual, including a change from a constitutional petition to complaint (coordinate) mechanism by an amendment in 2001.

The relationship of the constitutional judiciary with an individual is not, however, exhausted with an access to complaints procedure. Courts operate at the sharp end of the law and even though judges may be “armed only with pens,” by signing a court order, they regularly enforce rules and impose state violence on citizens. Individuals do occasionally resist a constitutional court by a way of protest, scandalising the institution or individual judges, and other techniques of evasion. The paper charts these techniques in a comparative perspective.