Democratisation through legal reform in Latin America – obstacles and opportunities

Legal reform offers an uncertain path towards democratization within developing nations. Effective legal systems may appear fundamental to developed democracies – restraining governments, guaranteeing rights and promptly resolving disputes. But the process of building these systems has been slow, contested and often violent.

The ‘neutral’ force of law does not guarantee equal economic outcomes. Law can also serve any regime – from South Africa’s apartheid system to Chile’s Pinochet regime. Legal reform is not a futile path towards democracy, but neither is it a straightforward one.

Research from Warwick University in the UK analyses the obstacles and opportunities for enhancing democracy through legal reform within Latin America. This region has suffered political instability and a succession of populist and authoritarian regimes. Here, democracies have historically been short-lived. And most people see law as an instrument of oppression, not protection.

Chile serves as a case study to illustrate a key problem in the region – that governments have pursued market-oriented economic policies, without developing political systems that recognise the legal equality of all citizens. The result: one law applies to the rulers, another to the ruled. For much of the early twentieth century, Chile experienced stable democratic governance. But its legal system did not develop in parallel. Courts were prevented from protecting the constitutional rights of citizens and excluded from key areas of public policy. And so, in 1973, Chilean democracy was interrupted by a military coup, and the advent of the Pinochet regime.

The research draws contrasting evidence from Colombia, where an activist Constitutional Court is working to resolve the tension between markets and political representation. In Colombia:

• Judicial review, which includes giving courts the power to veto laws that are inconsistent with the constitution, is working well.
• The Constitutional Court, established in 1991, has improved access to justice for ordinary people.
• The court’s decisions are very liberal – staunchly defending the rights of the terminally ill to a dignified death, the rights of indigenous people, of women, prison inmates, and the internally displaced.
• The court has ordered state agencies to provide medication to those suffering serious disease – upholding the right to a dignified life.
• As the guardian of constitutional rights, the court offers a public space to those excluded or marginalised by the political system.

Is the activist liberal approach of the Constitutional Court enhancing democracy in Colombia – a country otherwise torn by the violent conflicts that result from the export of illegal drugs? The author does not draw a definitive conclusion for policymakers, but presents the following observations:

• The court assists individuals to assert their rights and consequently to understand the role of the constitution in the political order.
• It offers a new platform for individuals to voice grievances.
• It is exposing weaknesses in the system of governance in Colombia.
• In dealing with issues that should be solved through political deliberation, the court could be viewed as undemocratic.
• Conversely, the court enables citizens to bring issues into the public arena that are ignored by the weak democratic system that currently exists.

Source(s):
‘Democratization Through Law: Perspectives from Latin America’, by Julio Faundez, in ‘On the State of Democracy’, pages 125-141, Routledge: London, edited by Julio Faundez, 2007
‘Democratization, Development, and Legality – Chile, 1831-1973’, Palgrave Macmillan: New York, by Julio Faundez, 2007
‘Democratization Through Law: Perspectives from Latin America’, Democratization 12 (5), pages 749-765, by Julio Faundez, December 2005

id21 Research Highlight: 15 August 2007

Further Information:
Julio Faundez
School of Law
University of Warwick
Coventry CV4 7AL,
United Kingdom

Tel: 44 (0)2476 523119
Fax: +44 (0)2476 524105
Contact the contributor: Julio.faundez@warwick.ac.uk

University of Warwick, UK