Concentrated judicial review in Brazil and Colombia: which (or whose) rights are protected?

Marcus Flávio Horta Caldeira

doi:10.5380/rinc.v7i1.69583

Abstract

Over the last few decades, judicial power has expanded, especially in constitutional or supreme courts. Recently, scholars in comparative constitutional law have focused their attention on analyzing the causes and consequences of this expansion in different constitutional systems. There are still no studies that compare the role played by constitutional or supreme courts in the defense of individual and social rights, specifically with regard to the link between the protection of rights and the extent to which social actors are granted standing to assert constitutional claims. This paper intends to provide some thoughts on this issue. The text will analyze the relationship between the protection of rights and the extent to which plaintiffs are granted the right to file constitutional claims in Colombia and Brazil. We conclude that the comparison between Brazil and Colombia presents relevant insights into how the dimension of authority, specifically standing to access the main courts in each system, can make a large difference in the protection of social and individual rights.

Highlights

Over the last few decades, judicial power has expanded, especially in constitutional or supreme courts
When we observe that the access to using these procedures in Brazil is limited to political authorities,96 the national Bar Association and confederations or national unions and compare this situation to the open access to every Colombian citizen to file an acción púbica de inconstitucionalidad with the Colombian Constitutional Court,97 it becomes clear why we believe there is greater access to social and individual rights through the Colombian Constitutional Court and why these same rights are more effectively protected in Colombia
As pointed out before in this paper, recent empirical research developed by the University of Brasilia Law School, which examined all the ADIs decided by the Brazilian Supreme Court (STF) until 2012, came to the conclusion that the court, through abstract review, does not effectively protect individual or social rights

Summary

Introduction

Over the last few decades, judicial power has expanded, especially in constitutional or supreme courts. Similar to the Brazilian model, Colombia practices concrete, diffused, a posteriori review when an individual files a petition (for example, recurso de amparo or acción de tutela) at a lower level of the judicial hierarchy when he or she considers the law (or other decree) unconstitutional because it violates his or her constitutional rights.51 unlike what occurs in Brazil, in Colombia, as noted by Juan Carlos Rodríguez-Raga, “the Colombian Constitutional Court may choose to review any lower-court decision on a petition, having the ability to discretionally grant certiorari to a case and settings its own agenda”.52

Results

Conclusion