Academic journal article Brazilian Political Science Review

The Judicialization of Territorial Politics in Brazil, Colombia and Spain*

Academic journal article Brazilian Political Science Review

The Judicialization of Territorial Politics in Brazil, Colombia and Spain*

Article excerpt

Introduction

Since the enactment of their most recent constitutions, Brazil, Colombia and Spain have undergone important processes of constitutional judicial review. This article assesses the patterns of judicial review of national legislative initiatives originating from the subnational level, taking into account the differences in the territorial organization and systems of government of these countries.

The ultimate goal here is to understand how intergovernmental relations relate to the process of judicial involvement in territorial affairs in different institutional settings. More specifically, the article intends to establish a relationship between constitutional judicial review and intergovernmental disputes in the selected countries. With this goal in mind, the article analyzes the instruments used by subnational politicians to challenge policies by the central government. The aim is to show the increasing displacement of conflict to the courts in matters concerning territorial governance. This article does not attempt to explain the decision-making process of judges.

In light of this goal, this article touches upon two pressing questions of territorial politics: how supreme courts have established themselves as pivotal institutions in dispute settlement concerning territorial politics, and how national and regional politicians attempt to use intergovernmental mechanisms to enhance their own interests through judicial review. Considering the differences between Brazil, Colombia and Spain, these questions will serve as a general guideline for understanding two aspects of the judicialization of politics: when plaintiffs bring territorial issues to courts, and how the structure of the judiciary shapes intergovernmental relations.

Judicial inroads into politics are receiving growing attention from scholars. Most analyses focus on the impact of the blurring of boundaries between political and judicial dynamics on democratic development. Analysts indicate that the more prominent role of the judiciary influences political dynamics in different ways: it affects the decision of voters to select political leaders (Fox and Stephenson, 2011); it impacts legislative decisions in a competitive political environment (Rogers, 2001); it has the potential to work as an insurance mechanism for policy continuity in situations of adverse electoral outcomes (Tridimas, 2010); and it fosters political centralization (Vaubel, 2009). Disputes related to the Legislative branch have been brought before constitutional courts, changing the way in which conflicts have been commonly resolved. Courts are increasingly involved in disputes between central and subnational governments, implying that in territorial politics, courts are having a determining role in conflict resolution.

In an attempt to show the judicialization of territorial governance, I will base the analysis on three countries with different territorial arrangements: federal Brazil, quasi-federal Spain, and unitary Colombia. Although the selected countries show important differences from each other that are not limited to territorial organization (e.g., systems of government, party system, modes of interaction between central and subnational governments, patterns of territorial conflict), they all have common mechanisms for intergovernmental dispute settlement to initiate a process of judicial review. More specifically, they all have in common some institutional features of judicial independence - e.g., autonomy of the judiciary and external appointment by one branch of government -, which has favored a growing involvement of the courts in territorial politics. However, they present varying structures of judicial review - e.g., constitutional arrangements, actors who can exercise the right of a plaintiff, scope of judicial power, etc. As a consequence, in Brazil, Colombia and Spain, a greater utilization of judicial review as an instrument of conflict resolution has produced different patterns of judicial review. …

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