Volume 43 | Number 3

The Solitude of Latin America:  The Struggle for Rights South of the Border

by Angel R. Oquendo

Abstract

Una nueva y arrasadora utopía de la vida, donde nadie pueda decidir por otros hasta la forma de morir, donde de veras sea cierto el amor y sea posible la felicidad, y donde las estirpes condenadas a cien años de soledad tengan por fin y para siempre una segunda oportunidad sobre la tierra.¹

Summary

1. First Things First: Overture and Overview
2. "What's in a Name?": A Family of Rights Regimes
3. Inter-Generational Guaranties: Thin and Thick
4. Procedural Claims: Beauty and the Beast
   1. The Writ of Protection or Security
   2. Unconstitutionality Actions
   3. Collective Suits
5. International Guaranties: Local and Global Action
6. Dysfunctions in the Rights Culture: A Walk on the Wild Side
7. Coda and Flashback

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I. First Things First: Overture and Overview

Lo que cuenta, lo que yo he tratado de contar, es el signo afirmativo frente a la escalada del desprecio y del espanto, y esa afirmación tiene que ser lo más solar, lo más vital del hombre: su sed erótica y lúdica, su liberación de los tabúes, su reclamo de una dignidad compartida en una tierra ya libre de este horizonte diario de colmillos y de dólares.²


Imagine someone comparing Latin American legal systems in the following terms: “In México, everything is permitted, except what is explicitly prohibited.  In Chile, everything is prohibited, except what is explicitly permitted. In Cuba, everything is prohibited, including what is officially permitted. And in Brazil, everything is permitted, especially what is strictly forbidden.”


Quick comparisons in law usually take such form. They are crisp, they are humorous, and they are wrong. Deliberate comparisons, in contrast, tend to be complicated, ponderous, and tentative. They rarely deliver a punch line.


While hopefully not entirely devoid of entertainment value, the comparative reflections in this piece are admittedly of the second variety. Accordingly, the underlying argument does not ride on, but rather debunks easy, occasionally amusing, and deeply ingrained stereotypes about Latin America, as a land of chaos, lawlessness, oppression, and hopelessness. The article focuses instead on the remarkable developments of late in the programmatic adjudication, procedural enforcement, and internationalization of fundamental entitlements throughout the region. These accomplishments have periodically taken place even against an adverse backdrop of weak adherence to notions of democracy, individual liberty, legality, and solidarity.


This project examines the way in which law operates across the continent, and uncovers core commonalities in the various rights praxes, without losing sight of the significant differences.  In the end, a coherent whole manifests itself, with the similarities clearly outweighing the discontinuities.  A familial resemblance—though not an overall essence—runs through the multifarious instances. A non-rigid, fluid conception of entitlements, which reveals itself through the achievements alluded to, overarches es the region in its full extension, from Tijuana to Tierra del Fuego.


Insofar as the jurisdictions under examination in this paper converge around such an interpretation, they meet a central requirement for the constitution of a congruous legal tradition. In modern and even postmodern times, such a traditional unit would hardly be conceivable if the comprised juridical systems did not have, at least to some degree, a common understanding of what comprises a right. Normally, there must be additional points of overlap in matters such as the model of adjudication, the relevance of scholarly commentary, or the relationship between law and morality. This article does not thoroughly delve into these issues; it simply paves the road to further thought and research on them.


The present work does not merely report on plainly observable correlations, let alone on the corresponding disconnections. Instead, it painstakingly teases a number of positive trends out of real-life cases and thereupon envisages a Latin American narrative on legal entitlements. The end result is neither a snapshot of legal reality today nor a pipe dream about the direction that the law should take. Rather, it is an assessment of the full potential of the rights culture presently in place and a somewhat paradoxical evocation of a distant but plausible utopia.³ The story therefore unfolds more normatively than descriptively; yet it essentially positions itself somewhere between these two extremes.⁴


The developments at stake have emerged, for the most part, relatively recently and have varied immensely in the extent of their pervasiveness. They include, principally, the vigorous judicial enforcement of negative and (especially) positive guaranties, the establishment of extraordinary procedural safeguards for individual, and collective, entitlements, and the effective implementation of international human rights.  While these achievements do not even remotely constitute the standard modus operandi, they do signal an imaginable future.


This article obviously does not harbor wild ambitions to reconstruct the Latin American rights regime in its entirety, from the bottom up. It solely purports to adumbrate an immanent (though certainly not imminent) alternative framework by highlighting a few crucial current movements. Fleshing out the details will unavoidably entail further investigation. At the moment, one can at most envision the cathedral from afar.


The scope of application of this methodological approach obviously transcends Latin America. This project adopts other theoretical postures that should equally resonate outside Latin Americanist and comparativist circles. It ultimately takes a panoramic perspective and proposes conceptualizing legal entitlements anew, along comprehensive, integral, or organic lines, rather than in the usual narrow and compartmentalized fashion. It calls for exhaustive consideration of positive, procedural, and international rights, in conjunction with their negative, substantive, and domestic counterparts. The core contention is that deliberation on the latter subset, decoupled from the former, breeds distortion and confusion. Furthermore, this wide-ranging effort involves contemplating the malfunctions and dysfunctions—along with the functions—of law. Legal theorists and practitioners must, accordingly, pay attention to the interstices or gaps, as well as to the rights realm itself. By the same token, they must carefully determine the prevalence of law failure (non-droit).


Beyond these conceptual insights, the juridical accomplishments under analysis should likewise find far-reaching appeal. They represent more than curious phenomena for the diversion of a casual legal anthropologist. By studying these successes, in addition to other aspects of Latin American law, lawyers in the United States and elsewhere will enhance their capacity to reflect upon and comprehend the reality at home. With law, as with language, people are better able to master their own when they confront and contrast it with that of others.⁵ Almost ineluctably, they become more critical vis-à-vis their native institutions and begin visualizing possible transformations on the basis of the experience abroad or as a result of completely new ideas generated through the reflective exercise.


After some obligatory nomenclatural clarifications in Part II, the discussion concentrates in Part III on first-, second-, and third-generation entitlements and applauds the manner in which many Latin American courts have uncompromisingly enforced programmatic guaranties in the last decade or so. Part IV analyzes various widely available procedures for the vindication of rights, including the writ of protection or security (recurso de amparo, mandado de segurança), unconstitutionality actions, and collective suits. It argues, generally, that a concrete understanding of substantive rights requires a basic appreciation of their procedural dimension and, specifically, that the legal systems in question have most conspicuously converged and progressed in the processes through which they implement such claims.


Thereafter, Part V considers international guaranties. The interaction between domestic and transnational rights has become extremely intense in Latin America, as well as almost everywhere else. The study of the former kind of entitlements must therefore take the latter into account. In particular, virtually all countries in this vast territory have signed the American Convention on Human Rights and have accepted the compulsory jurisdiction of the Inter-American Court. The treaty is steadily turning into the functional equivalent of a constitution for all of Latin America.⁶ The individual provisions, along with their official construal, invariably operate not just as international law, but additionally as a paramount component of the national legal orders.


Latin America has made extraordinary headway on all of these fronts precisely as it has tried to tackle specific problems related to the recognition of rights. First, it has often rendered social-welfare entitlements constitutionally enforceable in response to the political and administrative authorities’ flagrant disregard of the people’s basic needs. Second, the special procedures under assessment have emerged, in great part, to compensate for the shortcomings of ordinary process. Third, international guaranties have attained prominence mostly due to the crass inefficacy of domestic entitlements in the face of unspeakable outrages against human dignity.


Curiously, Latin American societies have increasingly turned to judge-centered solutions. They have apparently discovered the potential of judicial structural reform half a century after their northern neighbor. Against a civil law background, however, this turn has occurred particularly unexpectedly and with a unique flavor. Latin Americans have blazed their own trail not only in empowering the judiciary, but also, in setting its bounds and recognizing its limitations.


In Part VI, the paper shifts gears rather drastically and examines systematic complications that the pursuit of legal entitlements in the region has at times encountered. It notes that these guaranties, along with other juridical precepts, sporadically come to naught due to the precariousness of the rule of law. This predicament might hinder any significant progress towards a brighter future in this area. For instance, the previously mentioned victories could prove to be short lived within such an environment. Beyond adopting new measures or punishing violators more severely, Latin American countries must succeed in the unlikely task of changing the underlying culture. They must enhance the legitimacy of legal norms across the board by renewing their commitment to democracy, as well as to other ideals, such as the rule of law, personal freedom, and (above all) solidarity.


This last section explores these issues and closes with two concessions. First, even if it takes these enormous and improbable steps towards the institutionalization of the principle of legality and ensures the realization of legal entitlements, Latin America will not fully attain social justice. The vindication of rights plays a central, but only limited part in the fight against societal injustice. This battle demands a broader, as well as deeper, engagement, within and without the state, against inequity and marginalization.


Second, the quest for rights may, every now and then, actually prove to be counterproductive with respect to such an emancipatory struggle by reinforcing and perpetuating the very structures that create exclusion in the first place. This meta-critique, however, should neither content itself with such an observation nor stop at this initial, negative stage. It should instead strive to become dialectical and, as such, anticipate the supersession [Aufhebung]—namely, both the dissolution and the preservation—of its object. In other words, it should aim at a radical transformation of the current theory and praxis and move towards a new paradigm within which other strategies may complement and, if necessary, schew the assertion of legal entitlements in order to advance the more ambitious ethical cause. Despite the improbability of the ultimate objective, such a multilayered and relentless undertaking will undoubtedly do much good en route.

II. “What’s in a Name?”: A Family of Rights Regimes

Tú, paria en Cuba, solo y miserable,
puedes rugir con voz del Continente:
la sangre que te lleva en su corriente
es la misma en Bolivia, en Guatemala,
en Brasil, en Haití . . . .⁷


I will first explain what the expression “Latin America” covers for purposes of this article. The term technically refers to the former colonies of “Latin” nations, such as Spain, Portugal, and France. It became popular during the second half of the nineteenth century, as the French regime embraced it to sell the idea that all these territories belonged together and preferably under the rule of Napoléon III.⁸ France then not only had plans to expand its preponderance throughout the continent, but actually occupied Mexico from 1862 until 1867 and installed Archduke Maximilian of Austria as Emperor. Coincidentally, the Cinco de Mayo holiday commemorates a key, early victory in the protracted and ultimately successful Mexican resistance against the French occupation.⁹


Nowadays, however, the term “Latin America” usually means Iberian America and thus refers to the New World territories colonized by the nations that occupy the Iberian peninsula, i.e., Spain and Portugal. It rarely incorporates Francophone regions such as Haiti, Martinique, or Quebec. Ironically enough, the concept, which the French crown once propagated in order to amalgamate its areas of control in the Americas with those of other Latin nations, now ordinarily excludes France’s former possessions.


This paper deploys the term “Latin America” in this contemporary, albeit inaccurate, sense. It makes use of the more precise, but less current expression “Iberian America,” only intermittently. It thus seeks to maintain the former, as familiar and readily comprehensible, while gradually introducing the latter.


The piece focuses on Iberian American countries because, as partial cultural descendants of nations that share so much history, they evince considerable coherence in their conceptions of rights.  Spain and Portugal did not simply constitute a single political legal unit during crucial and extended periods of time up to the seventeenth century, but also embraced some of the same sources of law, most notably the Fuero Juzgo and the Siete Partidas, until the nineteenth century.¹⁰ Former Spanish and Portuguese colonies therefore converged legally during colonial times and frequently developed their law under the influence of each other after independence.¹¹ They certainly overlap with countries formerly colonized by France more so than they do with Anglo-American nations; yet undoubtedly less than they do with each other. For instance, some of the key legal institutions, such as the writ of protection (or amparo), prevail in the Iberian American realm,¹² but not in its Franco-American counterpart.


Latin American rights schemes bear to each other a family resemblance, in the sense of Wittgenstein.¹³ In other words, they do not have a common element or set thereof, but rather interrelate with each other in a complex manner. They present a “complicated network of similarities overlapping and criss-crossing: sometimes overall similarities, sometimes similarities of detail.”¹⁴ One of these regimes may, for example, resemble most others in constitutionally guaranteeing a sound education, but may differ from them in its rejection of the right to a healthy environment. A few others of these systems may similarly reject the latter entitlement, as well as the former.


Rights cultures in Iberian America generally coincide not only in what they share with each other, but also in what distinguishes them from their counterpart north of the border. To a great extent, this difference stems from the fact that the countries in the region belong to the civil law tradition, while the United States exists within the common law universe. Nonetheless, Iberian American legal orders diverge from the U.S. model specifically, even on substantive and procedural matters that bring them closer to other common law jurisdictions. Hence, they typically reject the death penalty, civil juries, and contingency fees, while embracing constitutional social-welfare entitlements, international human rights, abstract judicial review, and the “English rule” on attorney’s fees. Latin American nations have kept considerable distance from the United States partly as a reaction against the overwhelming U.S. hegemony in so many other areas of life.

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III. Inter-Generational Guaranties: Thin and Thick

¿A nombre de qué puedo condenar a muerte
a otros por lo que son o piensan?
Pero ¿cómo dejar impunes
la tortura o el genocidio o el matar de hambre?
No quiero nada para mí:
sólo anhelo
lo posible imposible:
un mundo sin víctimas.¹⁵


Iberian American countries have constitutionally established similar substantive entitlements. They have enacted first-, second-, and third-generation rights, freely borrowing general ideas, as well as specific formulations, from each other. Of course, the various jurisdictions have maintained significant differences from each other and have in no way coalesced into a single, monolithic system.


First- and second-generation rights are associated, respectively, with the 1966 United Nations’ International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights.¹⁶ They encompass, on the one hand, entitlements such as equality, due process, privacy, free speech, liberty of association, as well as universal suffrage, and, on the other hand, the right to work, to unionize, to subsistence, to housing, to health, to education, and to culture. Third generation rights, in turn, are entitlements that have emerged subsequently and that regard matters such as consumption, the environment, development, and information.¹⁷


Upon attaining independence in the nineteenth century, Iberian American nations drafted new constitutions inspired by Spanish, French, and, especially, U.S. models. These documents promulgated civil and political rights, which reflected the republican and liberal ethos that prevailed at the time.¹⁸ Current constitutional charters have preserved guarantees such as freedom of expression, religious liberty, fair trial, and suffrage.


Throughout the twentieth century, Latin American jurisdictions evolved to incorporate social welfare entitlements. Mexico’s 1917 Constitution pioneered internationally in recognizing broad socio-economic rights to housing, education, health, and work.¹⁹ Virtually all other countries in the region followed suit. Curiously, Puerto Rico tried to jump on the bandwagon with its 1952 Constitution, but the U.S. Congress vetoed the social and economic rights proposed by the constituent assembly and ratified by the local electorate.²⁰


Latin American constitutions have also embraced third-generation rights. They have guaranteed their citizenry, inter alia, sustainable development,²¹ empowerment as consumers,²² a wholesome environment,²³ as well as informational and cultural self-determination.²⁴ The judiciary throughout the region has made clear that these entitlements, like their second-generation counterparts, are not mere aspirations and are certainly not optional. It has repeatedly enforced them programmatically.²⁵ In other words, it has called on the authorities to show that they have a program and, more generally, a real commitment.²⁶


Constitutional systems frequently formulate first-generation prerogatives as negative and second- and third-generation entitlements as positive. Negative rights take the form of a ban on governmental interference with individual liberties. Classical civil and political entitlements, such as free speech or the right to privacy, exemplify this kind of guaranty. In contrast, positive rights require the state to act rather than to refrain from action. Economic and social rights, including the right to work or to health, provide cases in point, as do many of the previously mentioned third-generation rights.


Certainly, the classification of entitlements as negative and positive is somewhat misleading. Typically negative rights often call on the government to act positively by, for instance, using subsidies or restrictions in order to prevent the speech of the powerful from drowning out that of the weak. Conversely, positive entitlements invariably demand that the authorities abstain from certain action, such as interfering with citizens’ right to exercise a profession. Nonetheless, the distinction helpfully underscores the fact that the realization of second- and third-generation entitlements generally requires more elaborate measures and longer-term planning on the part of the state.


Positive rights also raise special questions regarding their judicial enforcement. Is there any role at all for the judiciary to play? Do these entitlements merely define lofty ideals that citizens may not vindicate in court? Or are they instead programmatic such that the government has a judicially enforceable obligation to establish a program or plan for their implementation? If so, how much should judges defer to the executive and legislative branches when passing on their efforts in this area?


In the specific case of the right to housing, may a homeless person sue the authorities? Should a tribunal respond to such a complaint by declaring that the state has no justiciable obligation to provide shelter for the plaintiff or anyone else and that the government must decide on its own to what extent it will meet the guaranty in question? Or, alternatively, should the judiciary probe into whether the authorities are taking their duties seriously and whether they have adopted a credible policy to address the housing needs of the citizenry? How might a court that follows this path address the charge that it has arrogated legislative functions to itself?


As already noted, Iberian American tribunals have held positive rights judiciable. Regional constitutional systems actually distinguish themselves, especially from their U.S. counterpart, not only because they recognize these entitlements, but also because they declare them enforceable in court. Recent litigation to vindicate the right to health in Venezuela and elsewhere in the continent illustrates this development rather vividly.


The 1961 Venezuelan Constitution articulates the right to health in the following terms: “People have a right to the protection of their health. The government shall safeguard public health and shall provide means of prevention and care for those who may need them.”²⁷ The 1999 Constitution takes a step further:

The right to health is socially fundamental. The state shall guarantee this entitlement, as part of the right to life. It shall develop and promote policies to improve the quality of life, the collective well-being, and the access to basic services. The people have a right to the protection of their health.²⁸

This provision connects the entitlement in question to the right to life and obligates the authorities to adopt a comprehensive and effective health policy.


The Venezuelan Supreme Court has, accordingly, taken the government to task for not meeting its duties in the area of health. In Rural Psychiatric Institute Virgen del Rosario v. Ministry of Health and Social Welfare et al., a group of clinics sued the Ministry for failing to renew their contracts and for thus infringing upon their indigent mental patients’ right to life and health.²⁹ The highest tribunal’s Political and Administrative Chamber not only agreed with the plaintiffs, but also expressed categorical “disapproval of the Ministry’s deplorable conduct.”³⁰

This Supreme Court believes that this conduct constitutes an open violation of the rights to life and health of these mental patients. The state cannot effectively guarantee these rights without the necessary resources. Furthermore, defendant has inexcusably failed to meet his duty to care for these unfortunate and neglected Venezuelan citizens who are unable to improve their situation on their own.³¹

The justices insisted that the clinics bore responsibility, along with the authorities, for the protection of the patients’ social welfare entitlements.

This Chamber believes that plaintiffs should know that, because they have contracted with the government to care for chronic and indigent mental patients, they share with the state the paramount responsibility of guaranteeing the human rights of these individuals. They must do their utmost to heal and socially reintegrate the patients to the extent possible. In carrying out this all too serious responsibility, they have an ineludible duty to care for, support, and heal these patients. They must respect the patients’ dignity and condition as human beings facing the misfortune of being ill and otherwise unassisted.³²

The Court ordered the government to renew the plaintiffs’ contracts and to pay for services rendered after the expiration of the original agreements.³³


In Cruz del Valle Bermúdez et al. v. Ministry of Health and Social Welfare, the same Chamber upheld the rights of indigent HIV/AIDS patients to receive medicines necessary for the treatment of their illness.³⁴ It underscored the obligatory nature of the entitlements in question with the following statement: “all citizens—including, of course, the plaintiffs in the case at bar—have a right to health. The state has a correlative duty to ensure the effective realization of that right, especially when the health of the indigent is at stake.”³⁵ Accordingly, the justices ordered the government “to deliver, regularly and periodically,” prescribed medication, as well as “to carry out or pay for specialized tests.”³⁶


The Ministry alleged that, in light of its budgetary constraints, it was “impossible to finance the treatment in question for the totality of persons suffering from HIV/AIDS.”³⁷ The Supreme Court impassively replied that the authorities simply had to find the money and called on them to make whatever adjustments in the budget were necessary to meet their constitutional obligations.³⁸


The defendant in this controversy, as well as in Virgen del Rosario, answered in a quite typical fashion. When faced with claims based on positive rights, in general, and programmatic entitlements, in particular, the state often pleads insufficiency of funds. The Venezuelan highest tribunal took this defense with a grain of salt in an attempt to preserve the viability of the guaranties at stake.


In del Valle Bermúdez, Venezuela’s justices most significantly ordered “the Ministry of Health and Social Welfare to develop a policy of information, treatment, and comprehensive medical assistance for the benefit of the plaintiffs.”³⁹ Furthermore, they concluded that, because no known cure for the disease existed, “the battle against the disease should focus on prevention.”⁴⁰ They made specific proposals on this issue:

The state must develop a national prevention program along the following lines:


Educational programs to target vulnerable groups, teenagers, married couples with problems, etc.


Massive provision of information for the community on the disease, its causes, its transmission, and its prevention.


Elaboration of a national plan to make affordable diagnoses possible through the state’s medical institutions.


Each of these programs requires special preparation and implementation, taking into account matters such as the general information currently available about the disease, the adequate use of condoms, and the availability of sterile syringes for drug users; the need for special attention for vulnerable groups; the existing efforts at the level of the community; and the role of marriage counseling.⁴¹

The tribunal articulated the defendant Ministry’s duties thus:

The Ministry of Health and Social Welfare must conduct, pursuant to the previously established principles, a thorough study of the basic needs of HIV/AIDS patients and of the different programs available to prevent an increase in the number of people infected. The findings of this study shall be presented to the President of the Republic and the Council of Ministers for consideration in defining the general guidelines for the next fiscal year’s budget.⁴²

“The goal must be,” the opinion explained, “to develop a policy of prevention based on facilitating information to individuals infected with HIV/AIDS, as well as on raising their level of awareness, educating them, and providing comprehensive assistance to them.”⁴³


The Supreme Court merely prescribed rough guidelines for a long-term program of HIV/AIDS treatment and prevention and granted the government sufficient discretion to decide on the details of the required plan. It struck a careful balance between leaving the enforcement of the right to health entirely up to the political authorities and depriving them completely of their decision-making authority in this area. The full realization of programmatic entitlements demands that the judiciary superintend government policies, while allowing state officials sufficient leeway to deploy their resources and expertise efficaciously, as well as creatively.


The opinion in del Valle Bermúdez ends with the following warning: “[t]he authorities must comply with present writ of protection or face sanctions for contempt.”⁴⁴ Effective adjudication sometimes requires this kind of threat, whether implicit or explicit, in order to assure the government’s compliance.


The Supreme Court should have retained jurisdiction of the case, thereby enabling itself to review the extent to which the Ministry subsequently implemented the remedy, and if necessary, to reconsider its remedial guidelines. Programmatic rights require such prolonged judicial engagement, which ideally should take the form of a conversation between the courts and the authorities.  Of course, non-governmental organizations such as Citizen Action against AIDS (Acción ciudadana contra el SIDA), which filed the complaint, should also play a key role not only in setting the litigation in motion, but also in monitoring the relief.


The 1999 Venezuelan Constitution created a new Supreme Court (Tribunal Supremo de Justicia) and the Constituent Assembly appointed the first members of this body in December of 1999.⁴⁵ The Justices soon confronted additional claims by HIV/AIDS patients. In Glenda López et al. v. the Venezuelan Institute for Social Security, a number of beneficiaries, represented by the same group of attorneys, sued the Institute for Social Security for failing to pay and deliver prescribed HIV/AIDS medicines.⁴⁶ The Constitutional Chamber of the new Court echoed its predecessor in finding that the defendant had “violated the right to health, threatened the right to life, and encroached upon the right to benefit from scientific and technological progress,”⁴⁷ as well as the right to social security. The tribunal similarly rejected the contention that lack of funds or credits might justify the Institute’s inaction.⁴⁸


In 2002, the Constitutional Chamber considered a similar action by HIV/AIDS patients against the Institute for Social Security in Antonio Loreto Tabares v. the Venezuelan Institute for Social Security.⁴⁹ Not surprisingly, the body affirmed “the holding of Judgment Number 487 of April 6, 2001, (the Glenda López case).”⁵⁰ In so doing, it noted “the completeness and clarity of [that] decision” and held “the [previously ordered] remedy fully applicable to the complainants in the case at bar.”⁵¹


In a sense, the opinion in Loreto Tabares was superfluous. The precedent was not only admittedly complete and clear, but also expressly applied “to anyone (i) who [was] registered with the Venezuelan Institute of Social Security, (ii) who [had] been diagnosed with the disease HIV/AIDS, (iii) who [met] the legal prerequisites to benefit from the social security system, and (iv) who [had] requested that the Institute deliver the medicines needed for the treatment in question, as well as for the opportunist illnesses, and cover the specialized medical examinations required to treat these illnesses.”⁵² Coincidentally, the earlier opinion in del Valle Bermúdez was also on point and equally broad in its scope of application.⁵³ Inasmuch as its determinations immediately bind all other Venezuelan tribunals,⁵⁴ the Constitutional Chamber ordinarily does not have to decide the same issue over and over again. It probably made repeated pronouncements in López and Loreto Tabares as an indirect and somewhat inefficient way of maintaining jurisdiction over the controversy.


In sum, Venezuelans have made programmatic entitlements, such as the right to health, constitutionally binding on the government and judicially enforceable. They have taken this step practically as a reaction to the state’s crass delinquency in this area. In fact, this case does not constitute an isolated instance, but rather a critical trend in Latin America. All Iberian American constitutions recognize the right to health,⁵⁵ along with other positive guaranties. Beyond Venezuela, HIV/AIDS patients throughout the region have likewise seized on this entitlement to try to force the state to provide the medicine and care that they need. They have organized themselves, engaged their fellow citizens, lobbied the executive and legislative branches, and litigated in court.⁵⁶

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The political authorities have supported these claims only intermittently. The governments in the region, with the exception of Brazil, provide limited or no coverage for HIV/AIDS.⁵⁷ In contrast, the judiciary has quite consistently sided with claimants and positively enforced the right to health. It has required the state to afford plaintiffs prescribed drugs and therapies and to adopt a long-term plan vis-à-vis the disease.


In its 1995 Judgment T-271/95, for instance, the Colombian Constitutional Court held “"that the petitioner, [who suffered from HIV/AIDS, had] a right to receive the totality of the prescribed treatment.”⁵⁸ The tribunal concluded “that the duty to protect the health and preserve the life of the patient must take priority and would become meaningless if there were no possibility of enjoying all the treatment prescribed by physicians.”⁵⁹ The Colombian justices determined that the denial of care constituted discrimination against the plaintiffs, both as people infected with the HIV virus and as indigent citizens.⁶⁰ Moreover, the Colombian Constitutional Court’s Judgment T-505/92 established that the denial of integral healthcare to HIV/AIDS patients amounted to a failure to fulfill the obligation to “prevent, as well as contain the propagation of, the disease.”⁶¹


Similarly, Peru’s Constitutional Court in its Judgment 2945-2003-AA/TC of the year 2004 ordered “the inclusion of petitioner among the patients to receive full HIV/AIDS treatment, including medicines and analyses, as recommended by the physicians of the hospital under the supervision of the Ministry of Health.”⁶² It called on the authorities to consider “contributions to the budget for the Anti-AIDS Plan a priority investment.”⁶³ The tribunal maintained jurisdiction over the dispute and enjoined “the hospital directors to update the Court every six months on petitioner’s treatment.”⁶⁴


In the same opinion, the Peruvian Constitutional Court offered an engaging discussion concerning the nature of the rights at stake.

Social and economic rights, namely, welfare rights, such as social security, public health, housing, education, and other public services, are necessary because they constitute social instruments that the state provides in order to enable individuals to attain complete self-determination. Citizens vindicate these entitlements by demanding that the government undertake whatever measures may be required in order to meet the corresponding societal goals. Because they often require financial support for their realization, social rights are not always enforceable exclusively within the legal system.


. . .


Contrary to the traditional understanding, these entitlements are not merely programmatic norms that may only be enforced in a mediate manner and that differ from civil and political rights that allow for immediate enforcement. In fact, welfare rights must be minimally respected as an indispensable condition for the enjoyment of civil and political rights. Accordingly, without education, health, and a decent quality of life, there would be no social liberty or equality. The legislature and the judiciary must therefore understand that the realization of these two kinds of entitlements must take place jointly and interdependently.


. . .


Of course, social rights require that the state set up basic public services, as well as that the citizenry contribute taxes in order to provide public financing for the underlying social policy. In any case, social rights impose concrete obligations on the authorities. The government must adopt constant and efficient measures for a progressive enforcement of these entitlements under conditions of equality for the entire population.


Consequently, we must interpret social rights as genuine claims of the citizen against the state, if we are to recognize the legal validity of constitutional imperatives and the relevance of the Constitution.


. . .


This new vision of social rights makes it possible to do justice to principles such as solidarity and human dignity, which constitute fundamental pillars of the social state and the rule of law.⁶⁵

Peru’s Constitutional Court, hence, acknowledged that the vindication of social welfare rights could only take place with the cooperation of the authorities and in a progressive manner. The tribunal insisted, however, that these crucial entitlements were not optional and that they were judicially enforceable. It used the case at hand to illustrate exactly how courts should implement these guaranties.


In Costa Rica, the Constitutional Chamber of the Supreme Court announced, in its 1997 Judgment 5934 and in five parallel opinions of the same year, “that the Costa Rican state [had] a duty, which [derived] from the principles of justice and solidarity that [underlay] the constitutionally established social security system and from the mission that the Constitution [imposed] on the Costa Rican Social Security Fund, to provide effective medical care for AIDS patients.”⁶⁶ In these decisions, the tribunal invoked not only Article 73 of the Constitution, but also Articles 22, 16, and 9 of the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, and the International Covenant of Economic, Social, and Cultural Rights, respectively.⁶⁷ While acknowledging that its decisions might critically overburden the health system, the Court expressed the hope “that [the] crisis [would] ultimately encourage the development of novel solutions, as expected by AIDS patients and by Costa Rican society in general.”⁶⁸


In eight subsequent opinions also issued in 1997, Costa Rica’s Supreme Court reaffirmed its holding in Judgment 5934.⁶⁹ It severely criticized the Social Security agency for its utter disregard of a most fundamental right: “[d]efendant is clearly violating the principle of equality, inasmuch as it provides medicines for treatment only to people who obtain a favorable judgment from the Constitutional Chamber and turns down all other individuals, including petitioner.”⁷⁰ While deciding eight disputes in 1998 along nearly identical lines, the tribunal additionally warned “that there should be no discrimination against the complainant, who [like] the plaintiff in [Judgment 5934, had] requested the antiretroviral medicines from the Costa Rican Social Security Fund, and [was] entitled to them, so long as he [had] a prescription from his attending physician.”⁷¹


In a decision of 2004, the Costa Rican justices established that the authorities had an obligation to afford HIV/AIDS patients the prescribed treatment immediately.⁷² “The directors of the Costa Rican Social Security Fund and affiliated hospitals, as well as clinics, [had] a duty and a personal responsibility . . . to adopt and implement administrative and organizational measures to put a definite end to the delay in the delivery of health services . . .”⁷³ The Court called attention to Article 71 of the Constitutional Jurisdiction Act, which authorizes the imposition of a prison term of three months to two years or a fine on whoever defies a writ of protection.⁷⁴


Finally, Argentina’s Supreme Court has taken a most active role in this area. In the year 2000, it upheld a writ of protection, which was secured by the Benghalensis Association and other non-governmental organizations on behalf of AIDS victims, compelling the Ministry of Health and Social Action to deliver a number of prescribed medicines to these individuals.⁷⁵ In 2001, the tribunal ordered a private prepaid health clinic, Omint Corporation and Services, to reinstate a previously terminated AIDS patient and offer treatment and medication for his illness.⁷⁶ In 2002, the Argentine justices issued a preliminary injunction enjoining the Institute for Medical Assistance of the Province of Buenos Aires to provide Verónica Sandra Dieguez and José Luis López with medically prescribed anti-AIDS drugs.⁷⁷ The Court entered a similar order in favor of Silvia Elena Rogers in 2003.⁷⁸


Not all Latin American courts have been equally receptive to this kind of claim. Chile’s Supreme Court, for example, dismissed Náyade Roja Vera’s suit seeking AIDS treatment and medication from the Metropolitan Health Services Provider Sur Oriente and the Ministry of Health, then under the leadership of Michelle Bachelet. In their opinion, the justices declared “that the problem at stake [involved] public health policy, which should be defined and applied by the Ministry’s officials, who [were] best qualified to regulate access to the requested services and to assess issues such as cost and available funding.”⁷⁹ The tribunal sustained the state’s actions because it determined that they were neither illegal nor arbitrary.⁸⁰


The Chilean plaintiffs subsequently took their grievance to the Inter-American Commission on Human Rights and obtained preliminary relief.  “In its communication of November 20, 2001, the [body] informed the Chilean State that the aforesaid individuals urgently needed basic assistance from state institutions in order to secure the drugs needed for their treatment; it therefore requested the adoption of urgent measures to ensure them access to medicines needed for their survival and to medical examinations for the regular monitoring of their health conditions.”⁸¹


The injunction quickly produced concrete results. “On December 5, 2001, the State described the preliminary steps taken at the Ministry of Health and reported that Juan Pablo Améstica, Manuel Orlando Farías, and Náyade Orieta Rojas Vera were receiving medication and undergoing examinations in order for their health conditions to be monitored by the State’s services.”⁸²


In El Salvador, HIV/AIDS patients filed for a writ of protection on April 28, 1999, before the Constitutional Chamber of the Supreme Court.⁸³ Upon the tribunal’s failure to issue a decision, the plaintiffs turned to the Inter-American Commission and secured a temporary remedy on February 29, 2000.⁸⁴ “On June 26, 2000, the Board of Directors of the Salvadoran Social Security Institute authorized the procurement of the triple antiretroviral therapy for persons who are HIV-positive or have AIDS in that country.”⁸⁵ The Commissioners held the petition admissible in 2001.⁸⁶ The Commission issued similar preliminary injunctions in favor of complainants from Bolivia and Ecuador in 2002, and from Guatemala in 2004.⁸⁷


All in all, most Latin American high tribunals have taken HIV/AIDS patients’ claims seriously.  They have made clear that social welfare rights—such as the right to health—impose judicially enforceable obligations on the state. They have acknowledged, however, that the implementation of these entitlements differs from that of civil and political rights in that it demands more collaboration with, and deference to, the authorities.


In fact, judges throughout the region have tended to favor targeted remedies, such as ordering the government to administer specific drugs and treatments, over structural injunctions on prevention and long-term healthcare policy.  The former kind of relief involves less judicial supervision, engagement, and intrusion than the latter. Nonetheless, it similarly requires courts to review the state’s sanitary, medical, and budgetary priorities, as well as its official determinations. These opinions may pave the road not only to broader constitutional control over the government’s social welfare programs, but also to more resolute adjudication of third-generation rights.


In this area, domestic and international law interact in an intricate and intense way. First, national courts do not hesitate to invoke both domestic and international norms. They apply international precepts directly, i.e., without waiting for enabling legislation, and with precedence over local statutory law. Second, transnational decision-makers regularly and effectively intervene to ensure that the government honors its citizens’ entitlements.  These cases show that the general interconnection between domestic and international legal systems takes place with respect to positive as well as negative rights.  This theme will reappear and preponderate in Part V of this work.


Over the last decade or so, Iberian American tribunals have proceeded in a similarly assertive manner in other areas, such as anti-discrimination, cultural self-determination, land reform, education, workplace conditions, information access, consumer prerogatives, and environmental protection. This development has produced a paradigm shift away from a conception of the judiciary as passive, reactionary, and hopelessly inane. To a considerable extent, the widespread and grave injustices that prevail in the region, the failure of the executive and legislative branches to respond, and (especially) the aggressiveness of civil society have forced the judiciary to take a more activist, progressive, and effective role. In essence, non-governmental collectivities have drawn on the courts and other autonomous institutions—such as the public ministry, the ombudsman, or administrative agencies— in order to confront the authorities on issues of policy and entitlements. Naturally, these groups have simultaneously fought for their causes in the realm of politics and out on the streets.⁸⁸


These judicial victories certainly do not constitute aberrations; they occur ever more frequently across the continent. Nonetheless, they have not even remotely attained universality. Latin American tribunals all too often fail to do justice to programmatic guaranties and other safeguards. They must therefore continue transforming themselves, perhaps by finding inspiration in and building on these extraordinary successes. By taking this path, the judiciary might not only motivate the authorities to commit to their citizens’ rights, but also contribute significantly to the advancement of the rule of law throughout the region.


Objectors could naturally reject these decisions as highly problematic instances of judicial activism. They could contend that the judiciary is not technically equipped and lacks the democratic legitimacy to make these complex and contentious policy determinations. Iberian American activist judges seem to face even more of a predicament in this sense today than did the judiciary in the United States during 1960s and 1970s insofar as they are enforcing not negative, but rather positive rights, which ordinarily entail additional levels of intricacy and controversy.


Paradoxically, the Latin American opinions in question have generated less of an uproar than their earlier U.S. counterparts. The explanation undoubtedly lies in the fact that the latter involved an issue that had divided the society as a whole for over a century: namely., racial justice. At any rate, some courts in the United States have also implemented second- and third-generation entitlements and have engaged in “public-law” adjudication, even when confronting first-generation claims.⁸⁹


A response to the objection at stake might focus on the extent to which many Iberian American governments outrageously disregard their citizens’ rights and thereby force the judiciary to intervene as a matter of emergency. Arguably, U.S. tribunals have occasionally had to react to similarly shocking delinquency on the part of the authorities, at least until the official termination of segregation. Unfortunately, a defense of judicial engagement along these lines would ultimately fail.  It might provide an excuse for individual judges acting under exceptional circumstances, but certainly would not justify permanent judicial involvement on behalf of individual and collective entitlements.


A more promising rejoinder would start by noting that all constitutions in Latin America emphatically endorse the positive guaranties at issue. Given such a constitutional framework, courts do not really have an option: they must redress any existing violation. They may not simply express regrets or cynically advise plaintiffs to try anew petitioning other branches of government.


For instance, when critically ill, indigent AIDS patients sue for their right to health and show that the state has refused to take even minimal action on their behalf, the judiciary has an obligation to act. Judges bound by the notion of legality may not recognize the entitlement and then deny a remedy.  They must regard the asserted guaranty as more than an empty pledge and, to that end, use all their power for its effective implementation. They should not shy away from ordering, if necessary, the provision of basic care, the delivery of medicine, or the adoption of longer-term measures.


Of course, a tribunal should exercise its prerogatives cautiously. It should generally defer to the authorities and refrain from second-guessing them when they promote an adequate, albeit improvable, plan. It should allow for a gradual and progressive fulfillment of the commitments in controversy, instead of expecting immediate satisfaction.


If the court rules against the defendants, it should merely formulate broad guidelines. It should grant state officials ample leeway to produce a solution on their own. As evidenced by the previously canvassed decisions, judicial intervention may take the form of dialogue rather than that of a unilateral dictate.


Nonetheless, it would be wrongheaded to pursue a rigid definition of the bounds of valid adjudication in this area. The same example illustrates this point. The judiciary would lack crucial flexibility if, for instance, it could only order the administration of medication. It should also be able to assume a constructive and forward-looking role by fashioning preventive arrangements or calling for special therapies.


In this context, tribunals have to oversee, though certainly not control, policy making. While they should avoid rearranging the administration’s priorities, they may intervene to address extreme governmental neglect or arbitrariness. For example, judges may compel the state to pay attention to the AIDS crisis, but not to devote more resources to this disease than to others, such as cancer.


Significantly, Latin American courts confront institutional constraints too. They must not only wait for a litigant to invoke their jurisdiction, but also work with other self-standing bodies, such as the Public Ministry,⁹⁰ the Human Rights Procurator,⁹¹ or the Popular Defender.⁹² These entities perform a function at trial that is analogous to that of a special master or an expert witness in the United States, although they usually enjoy separate standing, in addition to independence from both the judge and the parties. By contributing expertise, as well as a self-determining perspective, they counterbalance the adjudicator’s operational deficiencies. Still, these bureaucracies operate with a democratic deficit similar to that of the judicial branch, inasmuch as their staff is not directly accountable to the electorate or the government. Like the judiciary, they must derive their legitimacy partly from the reasonableness and the prudence of their performance, but principally from the constitutional structure, which establishes the guaranties at bar and commands the participation of these bodies in the enforcement.


At this juncture, skeptics could radicalize their position and censure the incorporation of second- and third-generation rights into the constitution. Nonetheless, they would ultimately lack a compelling argument to demand that the citizenry refrain from exercising this constitutional option. They could hardly condemn a community that enthusiastically embraced positive entitlements and reasonably entrusted the judiciary to play a supportive part in the realization stage.


A full discussion of these issues would require a whole new article. Beyond an elaboration on the themes already mentioned, it would demand a detailed analysis of the inner workings of adjudication. It would have to evolve into an elucidation of how tribunals ineluctably and rightly move, without necessarily encroaching upon the province of the legislature or the executive, from mere application to creation of legal norms, as well as from deliberation on principles to assessment of policies.


This subsection need not march all the way down such an argumentative path; it solely purports to suggest the overall plausibility of judicial vindication of positive entitlements.  The underlying effort consists of fathoming an emerging Iberian American trend towards a robust endorsement of these guaranties and in advocating the intensification of this development Once again, this piece does not identify the conception of rights in the region with the present praxis, but instead with the potential for the future, and proceeds more normatively, than descriptively.

IV. Procedural Claims: Beauty and the Beast

A harmonia secreta da desarmonia. Quero não o que está feito, mas o que tortuosamente ainda se faz.⁹³


Up to this point, this article has focused on substantive law. As a result, it has failed to explain fully the institutional implementation of the rights in question and has sounded, rather opaque. To address this problem, one must descend to procedure, namely, to what the civil law tradition denominates “adjectival” or “formal” law. These terms call for an interpretation that tracks their Latin roots. The adjective (adiectum), accordingly, does not subserviently describe, but rather adds to or complements, the substantive. The form (forma), in turn, does not entail superficiality; it instead constitutes the shape and the beauty of the content.


Hence, a full account of the rights regimes south of the border requires an examination of procedural entitlements. Upon considering these guaranties, one immediately perceives strong convergence and significant uniqueness in Latin America. Furthermore, one realizes that substantive entitlements are intricately intertwined with their procedural counterparts and that one cannot fully understand the former without at least a most elementary grasp of the latter.


Exclusively substantive analyses of rights inevitably operate at an abstract level. They become more concrete when they also focus on procedure. This additional step makes it possible to examine a given entitlement in action and to reveal what it is all about. Such an examination may even show that the right in question, in fact, differs radically from its similarly labeled counterparts in other jurisdictions. Though by the same name, the rose may not smell as sweet.⁹⁴


For example, when scholars simply declare that the citizenry enjoys free speech, they are not passing on much information. To add specificity to their account, they must explain how a particular individual may vindicate this guarantee. May such a person draw on state-owned means of dissemination, or subsidies, to transmit her message or to obtain data that she needs? What restrictions may the government legitimately impose? May the citizen in question, under certain circumstances, compel the private media to assist her? If the authorities or non-governmental actors fail to assist her as required by law or even thwart her attempts at communication, does she have recourse? Must she turn to an administrative agency first or may she immediately take to the courts? How does she formulate her claim? What kind of relief may she obtain? How may she enforce the remedy? By entertaining these procedural questions, legal analysts flesh out the idea of liberty of expression.


This piece deploys the concept of procedure in a broad sense. It does not focus merely on judicial, administrative or arbitrative proceedings, but also on transactions prior to any formal or informal dispute resolution. In any case, an analysis of rights that excluded the latter would be too general and, ultimately, incomplete, even if it included the former. Hence, the basic point applies to both implementation phases. In the end, the very line that separates substance from procedure becomes tenuous. The two realms interfuse intensely in practice.


This section considers several procedural mechanisms for the implementation of the previously discussed guaranties, illuminating the substance of those entitlements by showing how they actually come to life within the legal order. As previously noted, this turn to procedure demonstrates both the similarities and the differences between Latin American rights schemes. It specifically leads to three institutions that represent momentous steps forward and that hopefully will continue to flourish all over the region.

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A. The Writ of Protection or Security

Comovo-me com esta América Latina, quando lhe consulto seus enredos salpicados de tristeza, de generosidade, de exuberância.⁹⁵


The discussion begins with the amparo, or writ of protection.  This special procedure developed in Mexico in the nineteenth century to enable individuals and groups to vindicate their legal entitlements. It has gradually and steadily taken hold in other Iberian American legal systems and is now available throughout the continent, from Tijuana to Tierra del Fuego.


Most countries, like Mexico, denominate this action amparo, a word that means protection or shelter. The Colombian Constitution uses instead the term tutela,⁹⁶ which translates into guardianship or defense, while the Chilean charter opts for the concept recurso de protección, or (literally) “protection recourse.”⁹⁷ The Brazilian Constitution, in turn, speaks of a mandado de segurança, i.e., “security mandate.”⁹⁸


Even when the name varies, the underlying procedure remains essentially the same. It enables claimants summarily to vindicate constitutional and other entitlements. The court must give priority to these cases and apply a special set of procedural rules.


Moreover, the decision typically binds only the litigants. For instance, when the judge holds the challenged act or law unconstitutional, he does not establish a precedent. Another individual subsequently facing a similar situation would have to re-litigate the issue. She may naturally cite the preceding opinion as a source of persuasive reasons, but not as a binding norm.


Of course, the details vary enormously from one country to the next.  In Argentina and Brazil, for instance, the proceeding unfolds strictly summarily and allows exclusively documentary proof.⁹⁹ The tribunal basically treats the request for the writ as a motion for summary judgment. In Mexico and most other jurisdictions, the parties may introduce all kinds of evidence, including testimonial. Furthermore, Latin American systems diverge on issues such as whether the suit lies only against state action, whether it applies only to constitutional rights, and whether it allows challenges to judicial decisions. Finally, Argentina and Paraguay, unlike the totality of their regional neighbors, authorize judges generally to invalidate unconstitutional statutes in these causes.¹⁰⁰


Nonetheless, Iberian American legal systems converge broadly in their conception of the writ of protection, thus distancing themselves from their counterpart north of the border. In the United States, plaintiffs typically bring constitutional claims through an ordinary action under the rules of civil procedure. In Latin America, they file for a writ of protection or security, which resembles the German constitutional complaint (Verfassungsbeschwerde)¹⁰¹ in that it involves a special, extraordinary proceeding. In many Iberian American countries, unlike in the United States, a specialized constitutional tribunal, whether a Constitutional Court or the Constitutional Chamber of the Supreme Court, hears final appeals in these cases. To some extent, these tribunals resemble the German Constitutional Court and the French Constitutional Council. As already mentioned, most Latin American courts, unlike their U.S. counterparts, do not have the power, when deciding these suits, to declare statutes unconstitutional with general or erga omnes effect.


A brief examination of the Mexican writ of protection, which constitutes the original and most complex variant, makes it possible to acquire a general sense of how this institution operates. The experience of other countries in the region derives either directly or indirectly from that of Mexico. Nonetheless, the particularities of the procedure differ significantly from one jurisdiction to the next.


The writ of protection is one of the crowning achievements of the Mexican legal order. It emerged in the nineteenth century, first appearing in the 1841 Yucatán Constitution. It entered Mexico’s national law as part of the 1847 Reform Act, which modified the 1824 Federal Constitution. It represents an attempt to incorporate judicial review, as formulated by the U.S. Supreme Court in Marbury v. Madison,¹⁰² into the Mexican constitutional universe. It also, however, bears the mark of Spanish, French, and prior Mexican law.¹⁰³


Classically, when a person in Mexico feels that the authorities have infringed upon her rights, she does not file an ordinary complaint, but rather requests a writ of protection. She thus sets in motion an extraordinary process, which unfolds with exceptional speed and simplicity. If she prevails, the court orders the state to stop the violation.


In Mexico, Articles 103 to 107 of the Constitution broadly govern the writ of protection. The Writ of Protection Act addresses the details. Constitutional Article 103(I), which grants federal courts jurisdiction over protection suits, authorizes the vindication of all individual rights. The writ of protection has a similarly broad scope in Argentina, Bolivia, Brazil, Guatemala, and Paraguay.¹⁰⁴ In most other Latin American countries, however, the action lies only when constitutional or fundamental entitlements are at stake.¹⁰⁵


Under Article 107(II) of the Mexican Constitution, as well as Article 76 of the Writ of Protection Act, the judicial decision in a protection suit usually does not have general or erga omnes effect.¹⁰⁶ In other words, the court makes a determination on the illegality of the challenged official action not per se, but only with respect to the parties in the concrete dispute under consideration. Subsequent petitioners do not have a precedent on which they can rely to make their cases. They must instead argue anew, as if there had been no prior judicial decision. They may cite that preceding opinion as a source of persuasive reasons, but not as a binding norm.


Mexican scholars denominate this “principle of relativity”¹⁰⁷ the “Otero formula” because jurist and politician Mariano Otero introduced it in the 1847 Reform Act.¹⁰⁸ The precept reflects Mexico’s characteristically civil law concern about excessive judicial power. It does not preclude judges from setting aside unconstitutional laws, but limits the reach of the invalidation to the case at hand. It thus makes a compromise between two alternatives:  full-fledged judicial review and absolute deference to legislative enactments. As explained earlier, other Iberian American jurisdictions, with the exception of Argentina and Paraguay, take a similar approach.


The Mexican Writ of Protection Act itself establishes a curious exception to this general ban on stare decisis. The Supreme Court and circuit courts may posit case law binding on lower tribunals, so long as they meet the following strict conditions. Supreme Court holdings “constitute case law if supported by five consecutive, uninterrupted decisions, which at least eight [out of eleven] justices of the Plenum or four [out of five] justices of the competent Chamber have approved.”¹⁰⁹ Circuit court panel holdings, in turn, “constitute case law if supported by five consecutive, uninterrupted, and unanimous decisions.”¹¹⁰


A few other Latin American jurisdictions also empower their highest tribunal to issue case law only under limited circumstances. For instance, Article 43 of the Guatemala’s Writ of Protection, Habeas Corpus, and Constitutionality Act establishes the following: “The Constitutional Court’s interpretation of constitutional and legal norms in three consecutive decisions establishes legal doctrine that other tribunals must respect.”¹¹¹ Similarly, two-thirds of the Brazilian Supreme Court may issue a binding holding “after reiterated prior decisions on point” whenever lower courts are divided and there is a situation of “serious legal uncertainty.”¹¹² Hence, the Brazilian Constitution simply calls for “reiterated” decisions, not for a specific number. In any event, it takes an additional step away from the civil-law bias against judicial review without giving up the prejudice altogether.


Some Iberian American high courts have unrestricted authority to establish precedents. In Costa Rica and Venezuela, the decisions of the Constitutional Chamber of the Supreme Court bind all other chambers and tribunals; yet they do not oblige the Constitutional Chamber itself.¹¹³ Under the influence of the United States, the Puerto Rican Supreme Court has long adhered to the doctrine of stare decisis and therefore binds itself as well as other tribunals.¹¹⁴ Nonetheless, Puerto Rico’s legal order, like that of Cuba and unlike all others in the region, does not provide for a writ of protection.


Mexico’s writ of protection, in its traditional form, simply enables individuals to secure their fundamental rights. Nevertheless, it has developed and expanded enormously. Presently, it is possible, in the words of Mexican jurist Héctor Fix-Zamudio, “to challenge any action, resolution or precept in [the Mexican] legal system.”¹¹⁵ Accordingly, this institution has given rise to a family of related, but distinct procedural institutions.


Fix-Zamudio breaks the suit down into the following categories: habeas corpus, the writ against laws, cassation, as well as administrative and agrarian actions.¹¹⁶ There are probably as many ways to categorize this institution as there are to skin a cat.  One way of explaining the writ most clearly, however, is to focus on the kind of act it purports to contest.


The paradigmatic protection suit challenges a public official’s actions that allegedly impinge upon the claimant’s rights. For instance, a plaintiff may seek the writ against a policeman who fines her for delivering a subversive speech in a public square. Of course, if she ended up in jail as a consequence, her action would function as a habeas corpus petition.


More generally, individuals may oppose the conduct of anyone working within the state’s administrative apparatus, so long as they have no recourse to judicial review within the relevant agency.¹¹⁷ They must exhaust administrative remedies, unless the prerequisites for a stay of the challenged determination exceed those imposed by the Writ of Protection Act.¹¹⁸


The importance of the writ of protection against administrative acts has diminished with the expansion of administrative tribunals, at both the federal and the state level.¹¹⁹ If the law provides for such a forum, complainants must first litigate there.¹²⁰ They may thereafter contest the decisions through a protection suit against adjudicative acts, as described infra.


Litigants may bring a protection action against administrative acts performed by the judiciary or the legislature. For example, if a court arbitrarily refuses to allow an attorney to litigate within its jurisdiction, the lawyer may file for this administrative writ. An individual may similarly proceed against lawmakers if they illegitimately deny her access to key legislative documents.


The writ of protection against laws is most clearly of U.S. inspiration. It covers not only statutes, but also executive decrees and administrative regulations. It diverges from its U.S. analogue in that it usually does not have general or erga omnes effect. In other words, when Mexican judges declare the challenged legal provision unconstitutional, they typically void it only with respect to the parties. The law ordinarily remains applicable to other individuals.


In these actions, individuals sue the institution responsible for the law’s adoption, such as the legislature, the executive branch, or an administrative agency. They must, like all other protection plaintiffs, demonstrate an actual injury to their legal interests.¹²¹ In particular, they may not challenge a law that is not self-executing, i.e., that requires an additional legislative or administrative act to become effective.¹²²


If a judge violates an individual’s rights in the course of deciding a case, the affected person may seek a writ of protection against the decision. For instance, if a court unjustifiably exonerates an employer who discriminates against a female employee, the latter may bring this kind of action. If the judicial determination rests on a law, the affected party may rely on this writ to invalidate the application of the legal provision in question. Once again, the declaration of unconstitutionality only benefits the parties before the tribunal.


Normally, litigants must wait not only until the end of their trial, but also of their appeals before initiating a protection suit.¹²³ They may file their claim immediately after the original proceeding, only if they risk irreparable harm.¹²⁴ In general, they may contest judgments by administrative as well as ordinary tribunals. Furthermore, they may seek the invalidation of statutes, decrees, and regulations.


This kind of petition ultimately grants litigants an additional level of appellate review.  Plaintiffs must file the suit with the competent circuit panel, rather than a district court.¹²⁵ Ordinarily, they may not appeal the panel’s decision. Nonetheless, Article 107(IX) of the Mexican Constitution authorizes the Supreme Court to review these cases when a “law’s constitutionality or the direct interpretation of a constitutional precept is at stake” and the appeal raises “important and transcendent issues.”¹²⁶ In Mexican Sugar Workers Union v. Abel Hernández Rivera, for instance, Mexico’s highest tribunal allowed the defendants to appeal a circuit court’s grant of a writ of protection against a labor tribunal’s judgment under Articles 395 and 413 of the Federal Labor Act.¹²⁷


Curiously, the appellate protection action enables individuals to challenge any judicial decision, not just those that undermine specific rights. It rests on the controversial idea that any misapplication of the law constitutes a violation of the legality principle set forth in constitutional Articles 14 and 16 and of the corresponding individual rights. Accordingly, the tribunal corrects errors in the application of the law, somewhat like the French Supreme Court, namely, the Cour de Cassation. In fact, this suit against mistaken legal determinations was influenced by, and ultimately replaced, the Mexican cassation procedure, which had arrived from France via Spain.¹²⁸


A couple of Latin American jurisdictions have instituted the writ of protection not by constitutional or statutory amendment, but rather by judicial determination. In Argentina, for instance, the Supreme Court created the action in the 1950s in two cases that Argentine lawyers still cite and refer to using the English term “leading cases.”¹²⁹ In Ángel Siri v. Police Commissioner, District of Mercedes, the tribunal issued the writ in favor of a publisher whose newspaper was arbitrarily closed down by the police.¹³⁰ The plaintiff had originally sought a writ of habeas corpus and lost at trial because he had failed to show any impairment to his physical liberty.¹³¹ Finding a “clear infringement upon . . . freedom of the press and the right to work established in Articles 14, 17, and 18 of the Constitution,” the appellate justices decided to provide a remedy.¹³² They rejected “traditional doctrine relegating to ordinary proceedings (administrative or judicial) the protection of prerogatives not strictly included in habeas corpus” and established the writ of protection for such cases.¹³³


In Samuel Kot, L.L.C., v. Arón Fistein, the “owner of a textile plant” filed a protection suit against a group of employees who had taken over the premises upon the dismissal of two union officials in the aftermath of a strike.¹³⁴ The Supreme Court expressed considerable consternation about the workers taking the law into their own hands, but much less concern about the employer’s violation of labor laws. After all, the employees seized the factory in response to the firing of two union officials in the aftermath of the strike.


Citing the right to an effective remedy under Article 8 of the Universal Declaration of Human Rights, the Argentine justices reiterated their support for the writ of protection.¹³⁵ Furthermore, they described the role of the role of the judiciary in the following terms

Judges must use the expeditious writ of protection to redress all clearly illegal restrictions on any of the basic human rights whenever relying on the ordinary judicial or administrative procedures would result in a serious and irreparable harm. Of course, judges must act deliberately and prudently—as they regularly do when carrying out many of their other preeminent duties—so as to avoid deploying this extremely summary constitutional procedure to decide questions calling for extensive debate and for resolution through ordinary proceedings.¹³⁶

Significantly, the brethren established the availability of the writ against private parties and thus started a trend that most Iberian American countries have followed.¹³⁷ Nonetheless a significant number of jurisdictions in the region still impose a state action requirement.¹³⁸


In 1966, the Argentine Congress passed Law 16986, codifying the writ of protection and regulating its procedural details.  The statute incorporates the basic principles that the leading cases, Siri and Kot, established. Thus, the statutory writ of protection covers rights that fall outside the writ of habeas corpus, operates when other legal means would not suffice to address the alleged violation, and involves a summary proceeding.¹³⁹


Still, Law 16986 also deviates from the case law in certain significant respects: it authorizes the writ only against state officials,¹⁴⁰ and it merely protects rights “that the Constitution recognizes explicitly or implicitly.”¹⁴¹ The Congress eliminated the former restriction in 1967 when it amended the Code of Civil and Commercial Procedure to allow the writ against private parties.  Article 321(1) provides specifically for an “extra summary procedure . . . against acts or omissions of private parties that presently or imminently impair, restrict, alter, or threaten in an arbitrary or illegal manner the rights established by the Constitution.”¹⁴²


In 1994, Argentina radically transformed its Constitution and, inter alia, constitutionalized the writ of protection, thus precluding elimination or substantial alteration of the writ through ordinary legislation.¹⁴³ Law 16986 remains in force to the extent that it does not contradict the constitutional text. Constitutional Article 43 now reads, in part:

Any person may commence an expeditious procedure to obtain a writ of protection against acts or omissions of public authorities or private parties that arbitrarily or illegally impair, restrict, alter, or threaten the rights established by this Constitution, a treaty, or a law. The writ will be available only if there is no other more appropriate procedure. The judge may declare unconstitutional the norm upon which the infringing actions or omissions are based.¹⁴⁴

This provision leaves no doubt that plaintiffs may sue private parties and vindicate conventional and statutory entitlements, as well as constitutional prerogatives.


Moreover, the constitutional precept underscores the subsidiary nature of the action, reiterating that the writ is available only “if there is no other more appropriate procedure.”¹⁴⁵ In this regard, the Argentine legal system takes a position similar to that of other Latin American jurisdictions.¹⁴⁶ Of course, Article 43 of the Argentine Constitution uniquely insists that the alternative procedure must be “more” and not just equally “appropriate” in order to preclude the writ of protection.


Towards the close of the twentieth century, the Dominican Republic remained one of the few Iberian American countries whose legal system did not provide for a writ of protection. The Dominican Supreme Court changed this situation quite dramatically in 1999 when it declared the protection suit a right under the American Convention of Human Rights and, therefore, automatically part of Dominican positive law.¹⁴⁷


In Productos Avon, Inc., v. Second Chamber of the Labor Court of the National District, plaintiffs filed a protection suit alleging that the Second Chamber violated due process in an action for illegal dismissal of two of their employees.¹⁴⁸ They cited, inter alia, conventional Article 25(1): “[e]veryone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention . . .”¹⁴⁹


In holding for the complaintants, the Dominican high tribunal declared: “There should be a special mechanism to enforce rights. This Supreme Court has the power to establish an adequate procedure if the legislature has failed to do so.”¹⁵⁰ It proceeded to delineate procedural parameters for protection suits.

The plaintiff must request the writ within fifteen days of the occurrence of the conduct at issue. The hearing must take place within three days of the filing of the complaint. If the suit clearly lacks any merit whatsoever, the judge must state so in the record and shelve the complaint. Under these circumstances, the petitioner does not have a right to appeal. Upon completing his consideration of matter, the judge must produce a judgment within five days. The parties must appeal before the competent appellate court within three days of the judgment. They must meet the same deadlines that we have established for the trial, as well as for the decision. The protection proceeding will entail no court costs.¹⁵¹

On the basis of the language of Article 25(1), the Court concluded that protection plaintiffs may challenge the actions of judges, as well as those of private individuals.¹⁵² While many Iberian American jurisdictions ban the latter kind of suit, several disallow the former.¹⁵³ The Dominican justices, therefore, took an expansive position in the transcontinental debate on the scope of the writ of protection.


The protection suit has evolved into a characteristically Latin American institution, as well as into a fundamental part of the rights culture throughout the continent. It has attained universal resonance not only because of the importance of legal entitlements everywhere, but also because of the inefficiency and unreliability of ordinary process in many areas of the region. The writ has principally compensated for these dysfunctions inof the law, though it has occasionally compounded them. The final section of this article explores these matters further.


The discussion in this subsection makes it possible to grasp the sense in which substantive and procedural claims interact most intensely. Referring back to the previous example, the liberty in question, viz. free speech, will take on a specific character in a jurisdiction that recognizes the writ of protection. It will normally be enforceable against private parties, through a special procedure, and with relative speed. Significantly, individuals will ordinarily have a right to demand not that the government realize freedom of expression generally, but simply that it refrain from interfering with their discrete attempts to express themselves freely.


All in all, the writ of protection represents a major accomplishment. It has enabled Iberian American legal orders not only to compensate for their overall inefficacy, but also to move away from a rigid civil- law model that banned all judicial review. The main drawback is that this procedural device usually does not allow the judiciary to enunciate a precedent that other litigants may subsequently invoke. The natural tendency of judges to consistency and to follow decisions of higher courts counteracts this shortcoming only minimally. As explained in the next two subsections, unconstitutionality suits, along with collective actions, have often helped to offset this deficiency in a more substantial manner. In any case, Iberian American societies would be well-advised to follow the lead of Argentina and Paraguay and grant erga omnes effect to judicial determinations in protection or security cases.

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B. Unconstitutionality Actions

Voy a seguir la huella
sobre el mar de una estrella
que se perdió¹⁵⁴


Unconstitutionality actions, through which courts may conduct abstract judicial review, exist virtually everywhere in Latin America and contribute crucially to the protection of rights.¹⁵⁵ They traveled from Continental Europe to the New World, though the imported grape ended up producing a different wine when exposed to a new soil and climate.


In many jurisdictions, this kind of constitutional challenge may take place only once, either before or after enactment of the law in question. For instance, the French constitutional council must scrutinize legislative projects under the National Assembly’s consideration prior to their final approval.¹⁵⁶ Similarly, the Chilean Constitution empowers the Constitutional Court to assess the constitutionality of “organic constitutional laws” solely before congressional passage.¹⁵⁷ Other Latin American countries allow such review shortly after promulgation. Mexico requires this constitutional monitoring to occur within thirty days, while Nicaragua imposes a sixty-day limit.¹⁵⁸ Peru recently extended the deadline from six months to six years.¹⁵⁹ Most nations in the region, however, follow the German model, inasmuch as they do not establish a deadline.¹⁶⁰ Article 551 of the Paraguayan Code of Civil Procedure explicitly declares that constitutionality challenges are not subject to any statute of limitations.¹⁶¹


Tribunals do not, of course, initiate this type of review. They must wait for a party to file a complaint. Both the French and the German constitutions grant standing exclusively to high-profile individuals or institutions, such as the head of the executive branch or a delegation of lawmakers.¹⁶² Similarly, Bolivia, Brazil, Chile, Costa Rica, Ecuador, Guatemala, Mexico, and Peru permit only select parties to contest national laws generally.¹⁶³


Some of these countries, however, open up the process to a wider range of plaintiffs under certain circumstances. Costa Rica’s Constitutional Adjudication Act allows any person to sue, so long as “the case involves either matters that by nature do not lead to individual and direct injury or the defense of interests that are general or pertain to the collectivity as a whole.”¹⁶⁴ Ecuador allows a group of one thousand citizens to file this kind of complaint, while Peru posits five thousand as the threshold number.¹⁶⁵ Finally, Guatemala allows any person to bring suit so long as she has the assistance of at least three attorneys.¹⁶⁶


A plurality of Latin American jurisdictions confers standing in these actions rather liberally. In the Dominican Republic, Honduras, Paraguay, Uruguay, and Venezuela, any interested party may commence this kind of litigation.¹⁶⁷ The Colombian, Salvadoran, Nicaraguan, and Panamanian constitutions, in turn, empower any citizen to do so.¹⁶⁸ In particular, they do not require plaintiffs to show individual harm in order to proceed. Hence, the unconstitutionality action has generally and uniquely evolved into a broadly available mechanism to redress violations of constitutional principles.


The Colombian Constitution authorizes the Constitutional Court to “decide unconstitutionality suits filed by citizens against laws” or executive decrees.¹⁶⁹ It allows the tribunal to decide in these cases whether substantive and procedural violations of the Constitution have taken place.¹⁷⁰ The Procurator General must intervene in these controversies and file a brief within thirty days.¹⁷¹ The tribunal, in turn, ordinarily has sixty additional days to issue its opinion.¹⁷²


A justice of the Constitutional Court serves as rapporteur and must first decide, within ten days, whether the complaint meets all formal requirements.¹⁷³ Upon a finding of admissibility, any citizen may present arguments in favor of, or against, the constitutionality of the challenged statute within ten days.¹⁷⁴ When constitutional rights are at stake, the Public Defender may also take a position on the matter.¹⁷⁵ The Court must notify the President or the Congress, depending on whether the plaintiff is challenging a decree or a statute.¹⁷⁶ It may also alert the state institutions that participated in the elaboration or enactment of the challenged precept,¹⁷⁷ and it must grant them ten days to argue for the constitutionality of the law.¹⁷⁸


The rapporteur may examine any relevant evidence within ten days.¹⁷⁹ Alternatively, the Court may delegate this function to another justice.¹⁸⁰ Following this evidentiary phase, the rapporteur prepares a draft opinion, upon which her colleagues must deliberate for at least five days, except in cases of national emergency.¹⁸¹ The tribunal may decide by a majority to hold a public hearing in which the litigants have a “brief but reasonable amount of time” to clarify and expound on their written arguments.¹⁸² The Procurator General may also partake in this proceeding¹⁸³ along with organizations and experts on the issue.¹⁸⁴


The Constitutional Court decides by majority and dissenters may file a separate opinion.¹⁸⁵ If a majority rejects the rapporteur‘s position, the Chief Justice may call upon another justice to draft an opinion for the tribunal.¹⁸⁶ The final decision appears, along with any concurrences or dissents, in the Constitutional Court’s Gazette.¹⁸⁷


The Court’s judgment is obligatory, as well as unappealable, and constitutes res judicata; its reasoning binds all other tribunals.¹⁸⁸ Nonetheless, individuals may secure a writ of protection subsequent to a declaration of constitutionality by showing that the norm in question is unconstitutional as applied to them or that it violates a constitutional right not considered by the justices.¹⁸⁹ In these cases, the trial judge may request the Constitutional Court to clarify its original holding.¹⁹⁰


The Court has played an extremely energetic and progressive role in protecting a wide variety of constitutional rights in Colombia. It has relied mostly on the writ of protection, but also considerably on the unconstitutionality suit. It has, for instance, combated sexism in civil law by declaring various articles in the Code unconstitutional. In 1999 and 2001, respectively, it struck down the Civil Code’s Article 140(7), which nullified marriages between “an adulterous woman and her accomplice,” and Article 173, which forbade the immediate remarriage of women who were pregnant at the time of their divorce.¹⁹¹


The Colombian Constitutional Court has confronted in this way even seemingly harmless discrimination. In Yolima Milena González Bernal v. Civil Code, Article 126,¹⁹² the tribunal invalidated the challenged provision, which establishes the following: “Marriages shall take place before the municipal judge of the woman’s vicinity in the presence of two witnesses under oath.”¹⁹³ The justices held that inasmuch as they could find no constitutionally acceptable and compelling rationale for “the preference for the prospective wife’s domicile,” this provision encroached upon the principle of sexual equality of Articles 13 and 43 of the Colombian Constitution. They basically rewrote the statute when they declared that the responsible official must be the municipal judge of the vicinity of either of the spouses.¹⁹⁴


In González Bernal, the Constitutional Court struck down, sua sponte, interrelated Article 131 of the Civil Code, which reads:

If the prospective spouses live in different districts or if one of them has lived at the current common residence for less than six months, the judge of the woman’s vicinity shall demand that the judge of the man’s vicinity, first, issue the edict mentioned in the previous Article and, in due course, send it over and confirm that it was posted for fifteen consecutive days .  .  .¹⁹⁵

“This provision,” according to the tribunal, “presents the same constitutional defect . . . identified with respect to Article 126: It presumes that the marriage will be performed in the future wife’s domicile.”¹⁹⁶ The justices, once again, did not hesitate to draft a constitutionally acceptable alternative.

Hence, we shall eradicate the words “the woman’s” with the understanding that the judge in question is that of the vicinity of the individual whose domicile the couple chose for the wedding. By the same token, we shall efface the term “the man’s,” stipulating that the judge in question is from the other prospective spouse’s vicinity.¹⁹⁷

The Court expressed discomfort with its quasi-legislative role. It additionally stated that, under certain circumstances, it would not discard an unconstitutional statute.

If the unconstitutional precept’s subsistence does not momentously undermine superior values and the legislature has many regulatory options, then it is advisable to grant Congress a fair period of time to address the unconstitutionality. Under these circumstances, a substitutive judgment would disproportionately undercut democratic principles. Art. 3, Constitution (Colombia) (1991). The Constitutional Court would be limiting the legislature’s decision-making prerogatives. The length of the time granted lawmakers should respond to similar considerations. For instance, the more severe the impact on constitutional values is, the shorter the deadline should be. . . .¹⁹⁸

Nonetheless, the justices refused to take this approach in the case at hand.  hey concluded that “the Constitution [called] for a clear solution” and that “keeping the contested provision in place would ineluctably visit substantial damage upon [the society’s] constitutional ideals.”¹⁹⁹


Similarly, in José Eurípides Parra Parra v. Civil Code, Article 140(6), the Colombian Constitutional Court invalidated the provision in question:

A marriage shall be null and void if . . . the woman has not freely acquiesced because she has been violently robbed, unless she consents when she no longer finds herself under her abductor’s power.²⁰⁰

The justices could find “no justification for the contested norm.”²⁰¹ They observed that it was “by no means clear why the law should treat men and women differently when it authorizes the validation of a marriage that follows an act of abduction or, more precisely, kidnapping.”²⁰² They therefore held the deprivation of “kidnapped grooms of the option of remedying the insufficiency of their consent [to be] discriminatory and, hence, unconstitutional.”²⁰³


Instead of simply annulling or redrafting, the Court declared “the contested provision conditionally unconstitutional.”²⁰⁴ It left “the challenged phrase in place with the understanding that, as required by the principle of sexual equality, either spouse may call for the annulment of the marriage or the repair of the deficiency under Article 140(6) of the Civil Code.”²⁰⁵ The tribunal thus offered lawmakers the opportunity to rewrite the statute themselves in a non-discriminatory manner.


José Eurípides Parra Parra, who brought the preceding unconstitutionality action, has made challenging laws before the Colombian Constitutional Court a way of life. He has appeared as the named plaintiff in at least nine cases decided by that tribunal.²⁰⁶ The Colombian juridical order has thus demonstrated that, like many of its counterparts in the region, it grants citizens more than ample access to the courts.


Several Latin American legal systems explicitly empower writ of protection petitioners to request a separate declaration of unconstitutionality.²⁰⁷ In jurisdictions that grant ordinary individuals standing in unconstitutionality actions, any plaintiff may institute such a suit as part of, parallel to, or subsequent to the original proceeding. As a consequence, individuals in most Iberian American countries may now request a tribunal to set aside, with erga omnes effect, any statute that infringes upon their constitutional rights.²⁰⁸ They may thus overcome a basic restriction that they used to face when filing for a writ of protection. This development represents a paradigm shift, displacing in practice the notion that Latin American courts lack the power permanently to invalidate unconstitutional laws upon individual complaints.


Once again, understanding substantive entitlements south of the border demands a basic grasp of the unconstitutionality action, along with other procedural mechanisms. For instance, the repeatedly mentioned freedom of expression assumes a very peculiar form when its enforcement may take place not only through the writ of protection, but also through a universally available unconstitutionality suit. More generally, it tends to operate quite differently within a legal structure that insists on a tangible and personalized injury than within a system that imposes no such requirement. The latter arrangement, as opposed to the former, invites people to regard free speech as a public guaranty, rather than as a private prerogative. It empowers individuals, groups, and especially procurators not only to oppose discrete violations, but also to scrutinize legislative and regulatory action, as well as inaction, on the basis of the constitution’s global aspirations.  For instance, these parties may readily oppose a statute that effectively reduces diversity in or otherwise impoverishes social debate, even if the law does not directly infringe upon their own expressive liberties. The same kind of challenge could conceivably ride on individualized complaints; yet it would inevitably entail substantial procedural complications.


In stark contrast, the Constitution of the United States does not allow federal courts to pass on the constitutionality of particular statutes in the abstract, but rather requires a concrete case or controversy.²⁰⁹ It thus differs significantly from most of its Iberian American counterparts, which not only permit tribunals to probe into unapplied laws, but also allow any person to proceed as a plaintiff in these actions. By institutionalizing unconstitutionality suits along these lines, Latin American jurisdictions have underscored their difference with respect to the U.S. legal system, while showing their independence vis-à-vis the Continental European model.


The unconstitutionality action plays a key role in compensating for the limitations of the writ of protection, as well as in safeguarding fundamental guaranties and in policing the constitutional order. Iberian American legal systems should continue to evolve towards granting standing to the ordinary citizen in order to democratize the suit and to enhance its impact. To prevent frivolous litigation and abuse, however, they should also require a genuine interest in the dispute and impose other reasonable procedural prerequisites.


This kind of action expediently complements ordinary judicial review, by enabling a tribunal to confront unconstitutional laws head-on and before they have caused any harm upon application. The Latin American trend towards broad access represents an overall improvement, so long as courts have the capacity and the commitment to set clear bounds. Naturally, a full defense of these contentions would call for considerable elaboration. This subsection aspires simply to show the appeal of this regional development and to invite further reflection on the matter.


The Iberian American experience may actually fuel a discussion on expanding these suits in Continental Europe, as well as on introducing them in the United States. Taking either of these steps, however, would require an enormous and unlikely transformation in the underlying constitutional frameworks and cultures. In any case, the contemplated sea change, along with the antecedent debate, would be immensely beneficial for these North-Atlantic societies.

C. Collective Suits

Nos cruzamos en noche de ventisca;
en las mismas posadas estuvimos,
ciegos dormidos y ciegos despiertos.²¹⁰


Recently, Iberian American legal systems have been opening up to collective litigation, often along parallel lines.²¹¹ These lawsuits affect the rights of a multiplicity of individuals, who, for the most part, never actually appear in court. In fact, these absent parties are often unaware that the proceedings are even taking place.


Unlike the writ of protection, this kind of action did not originate indigenously. Instead, it emerged mostly abroad and eventually migrated to Latin America, where it ultimately underwent an idiosyncratic development. In this sense, it resembles the unconstitutionality suit; yet the latter stemmed mainly from Continental Europe, while the former derived principally from the United States.


Several Latin American jurisdictions have embraced the popular action.²¹² The actio popularis, a creature of Roman law, enables citizens to protect public goods through the courts. U.S. law contains similar procedures. For instance, some federal statutes authorize citizen suits, which enable personally affected plaintiffs to assert the public’s interest through litigation.²¹³ Similarly, qui tam actions empower individuals to challenge conduct that injures society in general, such as the embezzlement of state monies.²¹⁴ Latin American litigants, unlike their neighbors up north, generally do not face strict standing requirements when bringing these complaints.


Brazilian law additionally allows the Public Ministry “a permanent institution, essential to the state’s judicial function [and charged with defending] the legal order, the democratic system, and all inalienable social and individual interests,”²¹⁵ to bring public civil actions on behalf of numerous citizens. These suits purport “to address moral and pecuniary injuries to (I) the environment; (II) consumers; (III) the urban order (IV) goods of artistic, aesthetic, historical, tourism, and landscape value; (V) other comprehensive or collective interests; [and] (VI) the economic order or the popular economy.”²¹⁶ Certain state entities and private associations may also file the complaint; yet individuals may not.²¹⁷ When the legislature enacted the statute in 1985, it drew on existing local institutions, such as the popular action, and foreign concepts, especially the U.S. class action.²¹⁸ Moreover, the 1988 Constitution endorses this procedure in defining the duties of the Public Ministry.²¹⁹


In U.S. class actions, the judge must make a finding of adequate representation prior to certification.²²⁰ While some scholars have argued that Brazilian courts should similarly probe into adequacy of the representation,²²¹ Brazil’s public civil action law, like its counterpart on popular actions, calls for no such determination.²²² In any case, Article 5(1) of the statute requires the Public Ministry, whenever it does not itself file the claim, to intervene and represent the public interest.²²³ This provision generally guarantees the presence of competent attorneys in the proceedings, but not a steadfast defense of the common good as perceived by the people affected.


Interestingly, Article 13 of the Public Civil Action Act calls for a fund into which defeated defendants must pay damages, including any moral reparation.²²⁴ It demands that the Public Ministry and community delegates take part in the administration of the monies.²²⁵ This arrangement reflects the aspiration that such compensation accrue not to individual plaintiffs as a windfall, but rather to the collectivity as a whole.


Brazilian judges have broad injunctive powers in these cases. In fact, they must grant prevailing plaintiffs an injunction unless compliance would be impossible.²²⁶ In contrast, Federal courts in the United States must refuse a request for injunctive relief whenever damages would adequately compensate the complainants.²²⁷ The Brazilian approach reveals a civil law bias in favor of specific performance. It demands considerable engagement on the part of the judiciary, which must ordinarily issue an injunction in these cases, as well as guarantee compliance.


In São Paulo Public Ministry v. Notre Dame Association, the Brazilian Supreme Court defined the contours of this procedural institution.²²⁸ The “São Paulo Public Ministry . . . filed a public civil action [seeking] a preliminary injunction against respondent, Notre Dame Association for Education and Culture, a school in São Vicente, São Paulo,” to adjust tuition within the “limits established by the State Education Council.”²²⁹ The high tribunal unanimously agreed with the plaintiff on the merits: “Respondent undoubtedly violated the law when it authorized the tuition hike.”²³⁰ The justices further rejected “the contention that the Public Ministry [lacked] standing to defend the interests of the collectivity.”²³¹ “In this concrete case,” the Court stated, “the Ministry clearly [had] standing to bring a public civil action in order to protect collective interests in such an extremely delicate and socially significant terrain, which the state must police with utmost care.”²³²


In his concurrence, Justice Celso de Mello agreed “that the Public Ministry [had] standing to file public civil actions to challenge the increase in monthly school fees.”²³³ He declared further that:

The Brazilian legal system appreciates the singularity and importance of certain social values and calls on the state to safeguard them. Accordingly, it has tended, along with its counterparts elsewhere, to collectivize procedural instruments. In particular, it has created an agile means for an effective protection in court of meta-individual interests.²³⁴

From this standpoint, de Mello concluded that the Ministry “may certainly file a complaint to defend the collective interests of private school parents and students, as well as to impede an arbitrary increase in tuition.”²³⁵


In public civil actions, according to the relevant statute, the “judgment shall [generally] “constitute res judicata, erga omnes, within the jurisdictional limits of the issuing court.”²³⁷ In Notre Dame, any one of the parents or the students could have demanded that the school comply with the injunction and started an execution proceeding in case of noncompliance. Under a complex set of res judicata rules, however, an adverse decision in these cases does not preclude subsequent individual suits.  This arrangement provides an incentive for potential beneficiaries not to seek intervention in the original action, so as to be able to take a second bite at the apple in case of defeat.


Peru and Uruguay have already incorporated this kind of action into their legal order,²³⁸ while other Iberian American nations are presently considering following suit. In both the Peruvian and the Uruguayan legislative schemes, however, the final collective decision bars prior individual complaints.²³⁹ The public civil action will undoubtedly continue to diverge from the Brazilian model as it expands to other countries in the region. Nonetheless, it has the potential to follow in the course that the writ of protection underwent in the twentieth century and become a universally available procedure throughout Iberian America.

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Beyond popular and public civil actions, many Latin American jurisdictions have established a collective writ of protection or security. They have accordingly entitled a group to request such a writ in order to protect the rights of its membership. In Brazil, for example, political parties, unions, and organizations have a constitutional right to initiate such a suit.²⁴⁰ Argentina’s 1994 Constitution empowers not only “individuals affected,” but also the “People’s Defender”²⁴¹ to file these actions. It thus creates the equivalent of a U.S. class action and a Brazilian public civil action, respectively. In other words, a group of representatives, as well as an independent public organ,²⁴² may set in motion a collective “defense of environment, competition, and consumer rights, as well as collective rights more generally.”²⁴³ Of course, both Argentine and Brazilian plaintiffs must make their case on the basis of mostly documentary evidence, inasmuch as they are pursuing, respectively, a writ of protection and a writ of security.²⁴⁴ In most other Iberian American jurisdictions, however, complainants may additionally rely on other means of proof.


Not surprisingly, Latin American organizations have taken advantage of this enforcement mechanism and have forced the judiciary to detail the procedural parameters. For instance, in FEBRAC v. the President of the Republic, the Brazilian Federation of Syndicates and Associations of Maintenance and Conservation Companies (FEBRAC) sought a collective writ of security on behalf of its membership against the federal executive.²⁴⁵ It challenged “Law 8800 of May 27, 1994, and Provisory Measure 635 of September 27, 1994, [which established] the Program of Economic Stability, the National Monetary System, and the Institution of the Currency Real Unit of Value (RUV).”²⁴⁶ The plaintiff contended that the change of the official currency from cruzeiros to reais under these provisions violated the contractual rights of its constituents,²⁷ and essentially that the value of the underlying contracts decreased as a consequence of the conversion statute.²⁴⁸


The Brazilian justices dismissed the suit, accusing the complainant of illegitimately purporting to use the writ of security against a law in the abstract. They explained that this kind of challenge had to take place through an unconstitutionality action.²⁴⁹ Thus, the tribunal not only construed the writ of security very narrowly, but also left the petitioners with no options. The statute of limitations for an unconstitutionality complaint had probably already run and, in any case, the plaintiff did not fall within the limited category of parties that may file such a suit. Article 103 of Brazil’s Constitution authorizes only the president, the legislature, state governors, the procurator general, the Brazilian Bar Association, political parties, and national unions abstractly to challenge the constitutionality of norms in the abstract.²⁵⁰


Prior to the settlement of the merits along these lines, the justices first had to decide whether the plaintiff had standing to appear on behalf of its membership rather thaning for itself. In particular, the association purported to defend its members’ collective, rather than individual interests. Under the Constitution, it apparently only had to be “legally organized and in operation for at least one year,”²⁵¹ in order to proceed.


The summary of the opinion in FEBRAC states that: “Unions, classes, and associations have extraordinary standing to request a [collective] writ of security.”²⁵² The Court specifically held that these entities did not need “express authorization” from their membership and that “procedural substitution [took] place.”²⁵³ Accordingly, it entitled the plaintiff to represent its members’ collective interests, to stand in for them procedurally, and to bind them without explicitly consulting them.


A collective security suit, therefore, differs from an ordinary organizational action, in which the decision for or against the association usually does not bind the members, unless they have previously agreed to appear as co-plaintiffs. Of course, in the latter kind of proceeding, as in the former, the judgment normally has an impact on subsequent litigation.  For instance, if FEBRAC had lost in an ordinary suit instead of a collective security action, the President could have invoked this judicial determination at least as a source of persuasive reasons, though not as res judicata, against any complaint filed thereafter by particular maintenance companies. As the litigation actually unfolded, he prevailed against the organization’s petition for a collective writ and therefore would have been able to preclude any subsequent individual suits.


Coincidentally, Article 5 (XXI) of Brazil’s Constitution creates an associational action that similarly binds members of the plaintiff organization so long as they expressly authorize the litigation.²⁵⁴ In AJURIS v. State of Rio Grande do Sul, the Supreme Court allowed the Association of Judges of Rio Grande do Sul (AJURIS) to file such a suit on behalf of the entire membership after the group secured approval by a majority in an extraordinary meeting.²⁵⁵ The tribunal rejected the State’s argument that the complainant, which was seeking a cost-of-living adjustment on overdue judicial salaries, could only represent those judges who had explicitly and individually consented to the action.²⁵⁶ As a consequence, any member of AJURIS could have subsequently demanded enforcement of the decision as res judicata.


This kind of associational action actually occupies a middle point between the collective writ of security and an ordinary suit in terms of its binding force. It differs from the former, which has an automatic preclusive effect on the plaintiff’s membership, as well as from the latter, which requires individual consent in order to bind the members. As just explained, the associates must authorize the litigation filed under Article 5 (XXI) not individually, but rather collectively by majority vote, in order to have a piece of the action.


Collective suits, like protection and unconstitutionality actions, have had a peculiar development and have played a key role in the vindication of legal entitlements in Latin America. Naturally, they surfaced more recently than these two other procedural devices, are still basically under construction, and therefore have yet to take a mature form. Over the next several years, a clearer picture will likely emerge of how group litigation is finally shaping up and affecting the rights culture throughout the continent.


Collective actions also underscore the interconnection between substance and procedure. In terms of this section’s recurrent example, free speech profoundly transforms itself whenever its enforcement takes place collectively. It offers new procedural possibilities and, most significantly, it expands beyond protecting personal expressions of ideas to facilitating group and even societal self-determination. A class suit in this area often entails much more than an aggregation of numerous ordinary actions. It frequently enables people not only to speak their minds, but also to coalesce into an organized movement. For instance, the right of state employees to use their native tongue in informal settings transmutes intensely when asserted by a collectivity—such as the Aymaras in Bolivia or Latino/as in the United States—instead of an isolated individual. The interface between material and adjectival law in this context, as well as in others, certainly deserves additional attention and analysis.


Group litigation has found broad appeal in Iberian America partly as a way to make up for people’s longstanding lack of access to justice and to address large-scale violations of rights. It generally enables tribunals to process mass injuries efficiently and to advance the underlying public values directly. Latin America should continue to upgrade collective suits, minding experiences abroad, as well as local conditions. The rest of the world should take notice of the remarkable developments in the region on this front.

V. International Guaranties: Local and Global Action

Cantemos, sí, cantemos, que al cantarle al silencio,
a la sorda derrota y a la impar soledad,
venceremos la muerte, venceremos la nada,
y a la cumbre del tiempo nuestras almas irán.²⁵⁷


An account of rights in Latin America requires at least a rudimentary examination of how international entitlements operate in the region. Iberian American nations have joined numerous transnational conventions,²⁵⁸ which civil society has been invoking ever more often, both at home and abroad, in its quest for social justice.²⁵⁹ The symbiosis between domestic and international guaranties will continue to intensify not only in Latin America, but all over the world—even in the United States, where legal isolationism will eventually lose its appeal. Under these circumstances, one ineluctably misrepresents the rights praxis if one focuses exclusively on the national legal order.


International law has, in fact, enhanced Iberian America’s substantive and procedural convergence on rights. Constitutions throughout the continent generally enunciate a strong commitment to international law, as well as to regional integration.²⁶⁰ They overwhelmingly declare ratified treaties to be part of the supreme law of the land, without requiring implementing legislation.²⁶¹ In fact, international law often has priority over domestic statutes.²⁶²


Many of the constitutions in the region specifically and enthusiastically embrace international human rights, from civil and political to economic, social, and cultural rights.²⁶³ They frequently express support for transnational forums and adjudication.²⁶⁴ The Bolivian and the Peruvian constitutions specifically call on the national judiciary to interpret the domestic bill of rights in accordance with international human rights law.²⁶⁵ The atrocities perpetrated by Latin American dictatorships in the 1970s and 1980s, as well as the struggle for democracy in the 1990s, have undoubtedly fueled this transcontinental engagement in favor of human rights.


Virtually all Latin American countries have signed and ratified the 1969 American Convention on Human Rights.²⁶⁶ The only exceptions are Cuba and Puerto Rico, which are not full members of the sponsoring Organization of American States. Moreover, all signatory Latin American nations have accepted the compulsory jurisdiction of the Inter-American Court of Human Rights. In contrast, the United States has neither ratified the treaty nor recognized the tribunal’s binding authority.


The American Convention is evolving into the functional equivalent of a constitution for the entire region. The individual provisions often operate not merely as international law, but also as part of the domestic legal order. By the same token, the Inter-American Court of Human Rights, somewhat like its European counterpart, is gradually becoming a supranational constitutional tribunal. It has taken an increasingly progressive,²⁶⁷ as well as assertive,²⁶⁸ role and has impressively developed its prestige over the last decades. The Inter-American Commission on Human Rights, which considers individual as well as state complaints, monitors human rights generally, and refers cases to the Court,²⁶⁹ has also contributed to the critical process of consolidating and harmonizing human rights in Latin America.²⁷⁰ This article will not provide a full account of these phenomena; yet it will point to the way in which they bear upon the struggle for fundamental entitlements south of the border.


As already noted, the Inter-American system has played a critical role in the campaign to force Latin American governments to take the HIV/AIDS crisis seriously and in the development of the writ of protection. It has similarly supported the battle against codified sexism in the region. In the previously referenced Colombian cases, the plaintiffs invoked international treaties, even though the Constitutional Court ultimately decided on the basis of the domestic law.²⁷¹ In other Iberian American countries, international law has featured more prominently in this struggle.


In Guatemala, for instance, the Human Rights Procurator and the Center for Justice and International Law challenged Articles 109, 110, 113, 114, 115, 131, 133, 255, and 317 of the Civil Code, which discriminate against women on matters of marriage and childcare.²⁷² In 1993, the Guatemalan Constitutional Court dismissed the action.²⁷³ Thereafter, María Eugenia Morales Aceña de Sierra, who had litigated the case as Deputy Procurator for Human Rights, and the Center for Justice and International Law petitioned the Inter-American Commission on Human Rights.²⁷⁴


In 1998, the Commission issued an initial report “finding that the State of Guatemala was responsible for having violated the rights of María Eugenia