This paper has two purposes. The first is to explain the transformative and progressive role played by the Brazilian Supreme Court over the last thirty years of the Brazilian Constitution of 1988, and how the Court’s rulings may represent an important contribution to the construction of the Ius Constitutionale Commune en América Latina (ICCAL). The second purpose is to demonstrate that Brazil is currently facing a moment of political and economic crisis, which may endanger part of these achievements. In this new context, ICCAL may be a major tool for the protection of fundamental rights and democracy in the country, and I will explain how.
Social transformation is a commitment assumed by the Framers of 1917, so it can be said that our constitutionalism has always been transformative. The agenda of transformative constitutionalism in Mexico has gained momentum in recent years, following a number of progressive rulings issued by the Supreme Court. However, it is important to recognize that the promises of the Constitution of 1917 concerning the implementation of social rights have not been fulfilled. Therefore, constitutional justice must be turned to this matter. Mexico is experiencing a period in which a great social transformation is announced, in which transformative constitutionalism has the opportunity to become a reality, because as Klare explained a long time ago, the transformation can take place in a suitable political and social conjuncture. In addition, it needs continuous popular participation without which it cannot be carried out.
This paper explains that, for almost a decade, the jurisprudence of the Supreme Court of Justice of Chile has been a leading agent in the protection of the personal liberty of migrants. With this objective, it identifies the eventual violation of the personal liberty of the migrants originated in the application of the immigration law on the occasion of their deportation and the way in which such decisions are reviewed by the Supreme Court via habeas corpus guided by a series of postulates coinciding with the transformative constitutionalism. Undoubtedly, this case law has contributed to the configuration of the Ius Constitutionale Commune en América Latina.
The paper discusses the engine room’s thesis about Latin American constitutionalism (Gargarella, 2013). In particular, the paper remarks that there are manifestations of Transformative Constitutionalism in Latin America through which the infra-application of constitutional promises has been overcome. Also, it will be demonstrated that there are significant incursions in the engine room of some Latin American Constitutions. Some factors have allowed the incursions: i) the generosity of the constitutional provisions, ii) the extension of standing to access constitutional justice (both in the amparo proceedings and in the processes of judicial review), iii) a strong but deliberative judicial power that reacts to structural cases of violation of fundamental rights and iv) mutual support between constitutional justice and inter-American justice.