The state of judicial independence of Latin America: A framework for evaluating judicial independence and the success or failure of judicial reforms (Argentina, Chile, Costa Rica, Mexico, Venezuela).

摘要

Although a constitution may explicitly call for an independent judiciary, the way the judicial system is actually constitutionally designed may hinder such independence. This should not come as a surprise to the student of constitutional design since the process that results in a constitution creates multiple incentives on the part of the participants to bargain a particular constitutional framework. With respect to the creation of the judicial branch of government, the system may be designed in a way that limits or prevents the encroachment of the judiciary into the executive or legislative powers, thus affecting judicial independence.; The discipline of political science has devoted little time to researching and understanding the role played by courts outside of the United States. The lack of research on Latin American courts comes at a time when increasing attention in being given to the role of courts in European democracies (particularly emerging democracies). Tate and Vallinder (1995) have also observed a worldwide expansion of judicial power1 over the last few years and view this as potentially one of the most significant trends of the late 20 th and early 21st century government. However, it seems that we must first assess the degree of independence of a particular Supreme Court before we can discuss expansion of judicial power. Without a significant degree of independence, it would be unlikely that a court could either “dominate the making of public policies that had previously been made (or, it is widely believed, ought to be made) by other governmental agencies, especially legislatures and executives,” or turn the political process into one in which “nonjudicial negotiating and decision-making forums come to be dominated by quasi-judicial (legalistic) rules and procedures,” much less both.; This dissertation is a comparative study that attempts to develop a model of constitutional factors that influence judicial independence in the region. The main goals of this research are to develop a theory of judicial independence for the region and a model of the constitutional design variables that promote such judicial independence. The proposed model will focus on identifying constitutional variables from language found in the written constitutions of the selected countries pertaining to the formation and structure of the judicial branch. The proposition will be made that judicial independence is a function of the constitutional design of the judicial branch. In order to develop this model, this study will proceed in two steps. First, it will identify a set of constitutional variables that could influence judicial independence. This will involve the reading the constitutions of five Latin American countries (Argentina, Chile, Costa Rica, Mexico and Venezuela) and tabulating their constitutional designs pertaining to the judicial branch. The second step will involve a longitudinal, time series analysis that will focus on the decisions of three Supreme Courts in the area of tax law: Costa Rica, Mexico and Venezuela.; 1Tate and Vallinder suggest two core meanings for the term “judicial power:” (i) the process by which courts and judges come to make or increasingly to dominate the making of public policies that had previously been made (or, it is widely believed, ought to be made) by other governmental agencies, especially legislatures and executives, and (ii) the process by which nonjudicial negotiating and decision-making forums come to be dominated by quasi judicial (legalistic) rules and procedures.