Claiming individual legal rights through a good constitutional judge: The fresh illustration of gays in the Costa Rica

* Affiliate teacher out-of political technology, College away from Central Fl, and you will guest researcher at the Chr. Michelsen Institute, Bergen, Norway. That is a revised type of a newspaper exhibited in the “Process of law and the Marginalized: Relative Enjoy” working area during the Universidad Diego Portales, Santiago, Chile, . Mcdougal would like to give thanks to Juan Carlos Rodriguez Cordero, Roberto Gargarella, Siri Gloppen, Rachel Sieder, Kerstin Hamann, and the I•Fraud reviewers and trouver des femmes MontГ©nГ©gro you can writers. Email:

Cite

Bruce Yards. Wilson, Stating personal liberties using a good constitutional legal: This new illustration of gays in the Costa Rica, All over the world Log from Constitutional Legislation, Regularity 5, Procedure dos, , Profiles 242–257, Navbar Research Filter Cellular Enter keyword Browse Navbar Look Filter out Go into keyword Research

Conceptual

Into the 1989, a newly composed Constitutional Legal (Sala IV) instantaneously turned an incredibly energetic judge, stop over 160 years of Costa Rican judicial inactivity. Brand new magistrates’ actions breathed new lease of life on the Constitution, ended judicial deference so you can decided on officials, and consequently turned Costa Rican political existence. As well, the brand new Sala IV magistrates thought new role away from guardians from constitutional legal rights, giving go up about what is usually referred to as a liberties revolution. The article sheds light on the abrupt advantages of the forty-year-old Constitutional document as a consequence of a study of this new organization laws and you may procedures less than that the the new Courtroom works, also it explores the achievements and you may failures of 1 of one’s country’s really marginalized organizations in trying to coverage of the constitutional rights from the Judge.

Introduction

Inside the 1999, Costa Ricans recognized its Constitution’s fiftieth wedding. step one The latest benefits of Constitution within these fifty decades are on a regular basis divided in to a couple distinct attacks, pre and post the newest 1989 production of good constitutional chamber from the fresh new Ultimate Courtroom (Sala Constitucional otherwise Sala IV). dos Before 1989, brand new constitutionality from lawmakers’ methods was hardly confronted, and you may political leaders thought their “ability to legislate is pure,” permitting them to consistently forget constitutional constraints on the powers. step three However, the newest thorough private and you will public legal rights conditions of your own Constitution had been seldom handled by Supreme Courtroom. cuatro Those things off Sala IV magistrates keeps breathed new lease of life into Structure and you can switched Costa Rican politics, 5 since the Sala IV has actually regularly heard and you will favorably felt like private legal rights claims. It is widely consented one to, as 1989, Costa Rica has had an official trend- more particularly, good “rights” revolution-who may have advised people and you may groups out-of nearly all industry out of people to show to your Court for redress. six

Once the magistrates of one’s Ultimate Court before deferred towards popular branches off government, it now act as energetic guardians of Structure. As one Sala IV magistrate, Eduardo Sancho, place it: “It is necessary knowing this new Sala IV much less an enthusiastic organization intended to getting at provider of the executive part, however, slightly the reverse: to protect the fresh new liberties of people.” seven The brand new magistrates features frequently and decisively ruled when you look at the cases of individual liberties says, appear to and only politically poor and you may socially ines Sala IV choices to the circumstances registered by probably the most weakly structured, politically and socially marginalized members of Costa Rican people. Just before this, they covers the brand new judicial institutional structure both before and after this new design off Sala IV to describe the brand new root of one’s Court’s heightened judicial activism and, particularly, the new revived significance presumed by the constitutional provisions because the new chamber was in process.

1. Away from official laziness to help you official activism

For the first 160 many years of liberty, Costa Rica’s Finest Courtroom behaved like other other Latin american process of law, operating on the assumption the procedures of one’s well-known twigs out-of government had been constitutional unless of course they were egregiously and you may of course if not. 8 Such as remainder of the region, Costa Rica’s constitutions included bills regarding liberties that have been mostly neglected and, more often, just “parchment barriers, useless facing governmental power.” 9 For decades there is certainly considerable argument one of several twigs away from bodies regarding judicial opinion. It wasn’t up to 1938 the Supreme Court established the “official supremacy inside constitutional things.” 10 However,, like in much of the remainder of Latin America, new constitutional guarantees off individual legal rights provided nothing cover up against the caprices from political professionals, particularly for marginalized individuals. 11