The Latin American Casebook

Courts, Constitutions, and Rights

Juan F. Gonzalez-Bertomeu, Roberto Gargarella, Juan F. Gonzalez-Bertomeu, Roberto Gargarella

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317026198
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Traditionally relegated because of political pressure and public expectations, courts in Latin America are increasingly asserting a stronger role in public and political discussions. This casebook takes account of this phenomenon, by offering a rigorous and up-to-date discussion of constitutional adjudication in Latin America in recent decades. Bringing to the forefront the development of constitutional law by Latin American courts in various subject matters, the volume aims to highlight a host of creative arguments and solutions that judges in the region have offered.

The authors review and discuss innovative case law in light of the countries' social, political and legal context. Each chapter is devoted to a discussion of a particular area of judicial review, from freedom of expression to social and economic rights, from the internalization of human rights law to judicial checks on the economy, from gender and reproductive rights to transitional justice. The book thus provides a very useful tool to scholars, students and litigants alike.

1 Equal protection

Laura Clérico, Liliana Ronconi, and Martín Aldao

Introduction

A large number of academic studies and reports by international human rights organizations, non-governmental organizations, and community-based organizations deliver the same diagnosis: Latin America exhibits profound traces of social, economic, and political inequality, which can be construed in terms of redistribution, as well as a lack of recognition. This inequality lingers in spite of all efforts (large or small) made through public policies addressing the more severe forms of inequality. As two social scientists have stated,

[t]he available data show that development has been erratic and has not reached the expected parameters, and that the jobs created have not been sufficient or of good enough quality to have the expected social impact. In this context, neither has poverty been diminished in a structural form, nor has social vulnerability been tackled by social security programs, nor has the social exclusion to which indigenous people and afro-descendants have been historically subjugated been significantly reduced.¹

Several current scenarios of inequality in Latin America evidence structural problems that cannot be resolved on a case-by-case basis but rather require affirmative action measures aimed at providing a remedy or transforming reality. Therefore the application of the principle of formal equality, or even the principle of non-arbitrary discrimination under strict scrutiny, has proven unsuccessful in guaranteeing actual equal conditions for the exercise of legal rights and has begun to be supplemented by the notion of equality in terms of anti-subordination, construed as redistribution and recognition. The aim of this chapter² is to explore how the decisions of the superior courts and constitutional courts of the region may be constructed to trace the level of acknowledgment of the structural inequality perspective.

The chapter begins by presenting to the reader some general themes concerning the equality test (the concept of formal and substantive equality in terms of anti-subordination and the perspectives of redistribution and recognition). It then reviews decisions from a number of Latin American countries’ high courts, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights³ related to discrimination based on nationality, age, disability, and sexual orientation. Analyzing the cases will contribute to determine the concept of equality that prevails in each decision (as evidenced in the grounds provided by the court, as well as in the remedies awarded). Finally, we attempt to draw some conclusions as to the prevailing regional trend concerning equality.

Models of equality

The principle of equality was originally designed to prevent arbitrary acts by authorities. Over time it acquired a restorative function against long-lasting and far-reaching social inequality, which was profoundly connected, first, to the development of social rights and then to economic, social, and cultural rights. This involved the need to extend the restricted model of formal analysis of inequality, which responded to a liberal conception of society, towards a material analysis that could account for a more egalitarian idea of democracy.

The formal equality model is limited to verifying that all those who belong in the same classification made by the legislator are treated in the same way. This is the weakest version of the test for equality since it does not examine the grounds for classification or how the individuals must be treated under certain circumstances.

The inadequacy of this form of equality has led to the development of the formula of substantive legal equality, which considers the legitimacy of the classification criteria, and the reasoning behind the selection made by the legislator. Accordingly, the principle of equality is fulfilled “as long as all individuals who are under the same circumstances are treated in the same manner.” As the Inter-American Court has repeatedly stated, a difference in treatment is only discriminatory “when it has no objective and reasonable justification.”⁴

The regional trend shows that the justification test is connected to the proportionality test.⁵ A more elaborate version is the integrated test, which combines the principle of proportionality used by European case law with the American courts’ approach of a higher or lower intensity of control (scrutiny tests: mere rationality test, intermediate scrutiny test, and strict scrutiny test which applies to suspect classifications). This integrated test analyzes suitability, necessity, and proportionality in its narrow sense, while including the intensity of control addresses the reasoning behind the classification, and weighs up the importance of the grounds on which the challenged laws or regulations were approved.

Despite the fact that substantive legal equality has developed elements of strict scrutiny, these are far from being useful argumentative tools powerful enough to challenge a status quo of inequality. The anti-discriminatory principle operates in specific cases of discrimination but has failed to overcome inequality that responds to a systematic practice of domination, which is firmly rooted in the colonial origin of the countries in the region. This inequality is not spontaneous; it emerges from a given social structure and strikes at disadvantaged groups. In order for these disadvantaged groups to be able to exercise their rights under equal conditions, the state should not only refrain from taking action that could increase the marginalization of these groups, but also take affirmative action measures.⁶ These measures involve, under certain conditions, the redistribution of economic and social assets, with the purpose of breaking the vicious circle by which those who have less access to material resources have fewer chances to question the distribution of those assets. Under different circumstances, these measures also entail recognition. In this respect, inequality should not be understood (solely) as the gap between the rich and the poor, but rather as the gap between dominant and dominated identities.⁷ This form of discrimination, practiced historically over women, afro-descendants, indigenous people, migrants, and members of the LGBT community, among other groups, demands positive action that entails recognizing the existence of these diverse identities—which are altogether invisible to the dominant perspective of society. No form of the equality principle may be validly achieved, within a democratic context, without the involvement of those who are in actual situations of disparity.

The role of courts

Even if some of the most common forms of discrimination in the Latin American region are specifically analyzed throughout this chapter, it is worth pointing out that, in a large number of cases, discrimination does not arise in relation to a single feature, but rather from a plurality of factors.⁸ As stated by the Children’s Rights International Network: “Most people have multiple identities; for example, a child may also be a boy with a disability who is gay. Multiple—or ‘intersectional’—discrimination describes discrimination that occurs as a result of how these different identities or circumstances interact.”⁹ The Yean and Bosico case¹⁰ clearly illustrates the idea of multiple discrimination—like most children, these two girls were discriminated against: because of their age, because they were immigrants, and because they were poor.

Hence, “[a] single ground approach to addressing discrimination confines people’s identity to this one ground and fails to see people as multi-faceted.”¹¹ In this way, the discriminated person suffers a complex situation encumbering different angles of her life (social, educational, and working areas, among others), which are not likely to be reverted by unidirectional public policies (those that only address a single cause of discrimination). Therefore, integrated public policies are required if the goal is to eradicate all forms of inequality.

Case law analysis shows that, in a large number of cases requiring structural remedies, the group concerned suffered from extreme poverty, and this situation was worsened by one or several situations of discrimination. Thus, poverty becomes a transversal source of discrimination aggravating other forms of discrimination. The Constitutional Court of Colombia set an example by issuing Decision T-025/04, in which the category of “unconstitutional state of affairs” was used to describe the living conditions of more than 3 million internally displaced people because of violence in Colombia:

… there is a need for the state to intervene and confront structural inequality because … unless the restrictions and circumstances of inequality that ordinary individuals face daily are effectively fought by means of positive and focused action taken by the authorities, freedom and equality amongst human beings shall remain an abstract utopian concept. For this reason, in many cases, it has been settled that freedom and equality require the adoption of measures and the provision of services and benefits that individuals are unable to secure by themselves.¹²

The court held that the state’s lack of ability to prevent the massive, generalized, and systematic violation of rights entailed a situation of domination contrary to the standards of a democratic state under the rule of law. The court not only dismissed the notion of formal equality, but also analyzed the actual conditions required to allow an individual to lead a dignified life.

Scrutinizing classifications based on national origin: some examples and questions

Latin America shows a variety of scenarios in relation to the migration of individuals through the territory of the different countries—foreigners,” or “migrating” people. At the end of the nineteenth century and the dawn of the twentieth century, Argentina, Uruguay, Brazil, and the United States of America received massive immigration and, in the exercise of their sovereignty, passed laws that restricted the rights of foreign individuals who resided in their territory.¹³ In this context especially, claims were raised by aliens involved in discrimination disputes. In Argentina, the traditional jurisprudence of the Supreme Court of Justice concerning the status of aliens residing in the country, set forth by the precedents in Repetto,¹⁴ Calvo y Pesini,¹⁵ Gottschau,¹⁶ and Hooft,¹⁷ analyzes norms which contain classifications that are detrimental to the rights of aliens. The court resorted, to different degrees, to the strict scrutiny test in order to establish the unconstitutionality of the challenged norms.

Nonetheless, since the complainants mostly belonged to the upper classes, the court did not address, in any of these cases, the most relevant issues behind the status of the migrants res...