RESILIENCE STRATEGIES OF CONSTITUTIONAL COURTS BEFORE AUTHORITARIAN REGIMES: THE BRAZILIAN CASE

There are signs that democracy in Brazil may be at risk. Democratic setbacks do not only occur by taking power through the use of force. They can also occur through the election of populist leaders who promote normative changes which weaken the democratic regime. Constitutional courts are very important agents in stopping these initiatives, but they may put their very existence at risk when doing so. The present essay has the purpose to investigate and propose resilience strategies to protect constitutional orders and constitutional courts from authoritarian attacks. It is divided in three parts. In the first part, I examine the signs of democratic backslides in Brazil. In the second part, I address the institutional conditions that favor or undermine democratic backslides. In the third part, I propose strategies to increase the democratic resilience.

The role of the judiciary in the Transformative Constitutionalism

This paper aims to demonstrate that Transformative Constitutionalism (TC) requires the prevalence of strong constitutionalism over the weak. The TC updates the meaning of the term “judicial activism” to exclude certain types of judicial decisions that a standard theory would consider activists. At the same time, TC defends that the ordinary judicial function must have an activist content in a context marked by exclusion and inequality such as exists in Latin America. In the same way, TC subscribes the thesis according to which judges are considered as argumentative representatives of excluded persons or groups. These people or groups go to court to obtain protection of their rights. The TC supports the direct access mechanisms of citizens to the courts because it recognizes the role of civil society organizations and NGO’s in the protection of constitutional rights. Finally, the TC supports the function of the courts to restore the balance of powers in hyper-presidential contexts.

ICCAL’ strategies for strengthening democracy

The proposal is to use the theoretical contribution of the Ius Constitutionale Commune in Latin America (ICCAL) to strengthen democracy in order to address a specific problem: the influence of private entities in weakening the state's capacity for protection and promotion of rights. The influence of private entities subverts the democratic regime on two fronts: by weakening the processes turning them into uncertain tools and by making certain the outcomes of such processes, invariably aligned with the interests of these private entities. The theoretical contribution of ICCAL is used here to provide a basis for the use of alternative instruments to control conventionality and the application of the horizontal effectiveness of human rights (which it also advocates) but which better fit the characteristics of the problem, such as statocentrism or the lack of a binding instrument that would establishe adequate conduct for private entities.

“UNCONSTITUTIONAL STATE OF AFFAIRS”, JUDICIAL ACTIVISM AND TRANSFORMATIVE CONSTITUTIONALISM

The expansion of the judicialization of politics in the Global South’s democracies has brought with it a significant development, the spread of “structural reform litigation”. These court cases involve the continuous and widespread violation of social rights of less favored groups, whose solution requires the creation of new remedies that differ from the ordinary ones. Such injunctions of reform of government policy and institutions are complex and open the possibility of a dialogical approach, which can legitimate this non-judicial role. One of these novelties is the Unconstitutional State of Affairs. It was developed by the Colombian Constitutional Court, in the context of the transformative constitutionalism that takes place in that country, and has recently been brought to the Brazilian jurisprudence. Thus, what we intend to discuss in this paper is the perspective of a dialogical judicial activism in Brazil, on behalf of the social transformation, from the trial of ADPF 347/2015.