Monday, June 17, 2013

Colombia and India: Two of the Most Similar Courts in the World?

There was a recent post on ICONnect by David Landau describing how the Colombian Constitutional Court has struck or read down several Constitutional amendments there. Perhaps even more than India's Basic Structure Doctrine the caselaw in Colombia has taken on a life of its own and been used to narrow constitutional amendments (such as those concerning drug possession or the functioning of the civil service) one wouldn't necessarily believe are core to a sound liberal-democratic constitutional ordering.

When one surveys the courts of the world, it is often those in Latin America where I at least find the most parallels to India's more activist jurisprudence. The Colombian Constitutional Court has an incredibly expansive rights jurisprudence and its orders are far more frequent and detailed in its social and economic rights cases than the Indian Supreme Court's. In this article from 2009, Bruce Wilson looks at the reasons why two courts in Latin America - those in Colombia and Costa Rica - might be as active as they are: finding that relaxed rules of standing and access (like in India) are critical to creating such active judiciaries. It strikes me these similarities are only the beginning (and much more work has been done on courts in Latin America - see for example here and here). In India, the Court has benefited not only from relaxed standing rules and wide constitutional powers, but a long period of coalition governments at the centre which makes it difficult for any one political party to easily challenge the Court's authority, and a historical narrative of distrust towards the other branches created by the history by the Emergency that the judges have used to shape and reenforce their own power. On both these fronts there seem to be some parallels in Latin America (where there are histories of dictatorship, at least competitive political parties, and perhaps the added feature of having an Inter-American Court that may help apex courts shore up and internationalize a language that justifies their power). It strikes me much fertile comparative work could be done by looking at Latin America and India in more depth. Given language barriers though it might be more likely that such work originates in Latin America or at least from those studying courts there. Then again, just another reason to learn Spanish.

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