Constitutional Courts as Mediators: Generals, Judges, and Democracy in Latin America

Abstract

The legacy of military interventions and authoritarism in Latin America has produced the unstable democracies that characterize the region. A distinctive feature of this legacy is the prevalence of uncertainty surrounding civil-military relations. Specifically, civilian and military leaders are uncertain about the appropriate degree of autonomy for the military under a democratic regime. Moreover, civilian governments are unsure about the military’s willingness to build and sustain the democratic regime, and the armed forces doubt to what extent civilian leaders are willing to build a strong army respecting its institutional sprit de corps. This paper argues that unbiased, accesible, and powerful constitutional courts can credibly provide relevant information to reduce the uncertainty sorrounding civil-military relations, thus promoting cooperation between them. When these conditions are not met, it is more likely that constitutional courts update or even expand an old jurisprudence of lack of accountability of the military. The argument is illustrated in the case of constitutional jurisprudence on the scope of military jurisdiction in Colombia from 1958 to 2010.