1. INTRODUCCIÓN

Over the last few decades, scholars have noticed the expansion of judicial power and the consequent judicialization of politics.1 Some studies even consider that many constitutional systems are heading “towards juristocracy”.2 As never before, countries are creating some form of judicial review or expanding the powers of the judicial branch (especially in constitutional or supreme courts) to pronounce what is (or is not) aligned with their Constitutions. The very definition of a constitutional question has been enlarged to embrace a wide variety of themes.

As the former proactive president of the Supreme Court of Israel once said, “nothing falls beyond the purview of judicial review; the world is filled with law, and anything and everything is justiciable”.3

The declared goal of this expansion, as Brinks and Blass point out, is “creating more independence, more rights protection, more rule of law, more democracy, or all of these combined”.4

Particularly in Latin America, since the 1970s, there have been constitutional, legal or jurisprudential reforms to insulate and strengthen the power of judges, making the judicial power and, especially, the constitutional or supreme courts more independent and powerful than ever before.5

Recently, scholars in comparative constitutional law have focused their attention on analyzing the causes and consequences of the expansion of judicial power in different constitutional systems,6 which is yielding interesting data to better compare and understand the phenomenon.7 There are still very few studies that examine what types of rights are actually being protected by the constitutional and supreme courts in practice, particularly from a comparative perspective. Some good exceptions are the studies organized by Gretchen Helmke and Julio Ríos-Figueroa in “Courts in Latin America”.8 However, as far as we know, there are no studies that compare the role played by constitutional or supreme courts in the defense of individual and social rights, specifically with regard to the link between the protection of rights and the extent to which social actors are granted standing to assert constitutional claims.

This paper intends to add some thoughts regarding this area by analyzing the relationship between the protection of rights and the extent to which plaintiffs are granted the right to file constitutional claims in Colombia and Brazil in the Colombian Constitutional Court (Corte Constitutional de Colombia) and to the Brazilian Supreme Court (Supremo Tribunal Federal), respectively.

The first section of this article we will briefly analyze the different main types of constitutional review systems. The second section, focusing in Latin America, will present the mixed system and characterize the Brazilian and the Colombian models. The third section will present the criteria of autonomy and authority for constitutional and supreme courts and the instruments used by the Colombian Constitutional Court and the Brazilian Federal Supreme Court. The fourth section will present data on the effective protection of social and individual rights by the Brazilian Supreme Court and Colombian Constitutional Court and on the relationship between the standing to bring constitutional lawsuits to constitutional and supreme courts and the protection of rights and how this relationship is seen in Colombia and Brazil.

2. THE MAIN TYPES OF CONSTITUTIONAL REVIEW SYSTEMS

Judicial review or constitutional review, which can be defined as “the formal power of a local court or a court-like body to set aside or strike legislation for incompatibility with the national constitution”,9 which once was “an American peculiarity”, as described by Alexis de Tocqueville,10 has spread throughout the globe. According to Ginsburg and Versteeg,11 83% of the world`s constitutions now include (explicitly or implicitly) some form of constitutional review.

The first system of constitutional review or judicial review was created in the United States of America and became famous after Marbury v. Madison, in 1803, when the Supreme Court of the US for the first time explicitly ruled that a federal law that is not in accordance with the constitution should be considered null and void.12

Although the US Constitution is not explicit about the power of federal courts to strike down statutes that are incompatible with it, many scholars13 believe that the founding fathers assumed that this role would be within the judicial power. Hamilton dedicated much of Federalist 78 to expressing the ideas that were put in practice by Marshall and the US Supreme Court in Marbury v. Madison.14

The American system of judicial review is known to be decentralized, concrete and with inter partes and ex tunc effects.15 Therefore, all judges and courts can declare a law unconstitutional (decentralized model); this declaration must occur in the judgment of a case or controversy (concrete review), and the ruling will affect only the parts (inter partes effect) with retroactive effects, which convey the idea of the invalidity of the law since its creation (ex tunc effects).16

Over the course of the development of the American system, some of its traditional characteristics have been altered or softened. Stare decisis, typical of common law systems, which states that judges should observe the rulings of higher courts, directly affects the inter partes effect and even the decentralization of the system. As judges and courts should observe the decisions of higher courts, the rulings of higher courts, especially those of the US Supreme Court affect the decisions of all judges and tribunals all over the country. Therefore, the decisions of the US Supreme Court affect all litigants, not only the parties of the particular case. The role played by this court is decisive in terms of pronouncing the last word on constitutional (and legal) interpretation, which does not change the power that all judges have to use judicial review but instills far greater importance in the rulings of the US Supreme Court as the center of the most binding and final decisions in the country.17

Over the course of its development, American judicial review has started to admit nonretroactive effects18 and, as pointed out by Sweet and Shapiro (2006),19 has begun to exercise some kind of “abstract review of legislation”.20 While the American system does not have a special “constitutional claim” proceeding, the writ of certiorari is currently the main legal instrument through which to access the US Supreme Court.21

In contrast, with the “American” model, there is another system - called the “European” or “Austrian” system of judicial review - in which a specialized constitutional court has constitutional review power, while the rest of the judiciary cannot void legislation. Due to this characteristic, this system is also named the “centralized” model because judicial review is centralized in one organ.22

The centralized model, or “European” model, was created by Hans Kelsen and applied in the Austrian Constitution of 1920 (Oktoberverfassung), which conceived of the first constitutional court - the Austrian Verfassungsgerichstshof. The early Austrian system is described as centralized, abstract and with erga omnes and ex nunc or prospective effects,23 which is the exact opposite of the American model in its early development.

In the original Austrian model, constitutional questions could only be addressed by the federal government or by the government of the “Länder” - equivalent to states in a federal system - through a specific action and would be analyzed, not in the context of a case or controversy but as an “abstract” question of constitutionality.24 The court could void a law when it was considered unconstitutional, which affected all branches and organs in the federation and all the citizens (erga omnes effects), but the effects could be postponed to the future - six months25 after the decision.26

Due to the great limitations of the early model, in 1929, Austrian centralized constitutional review was expanded through the Verfassungsnovelle27 to create a “concrete” review system, in addition to the “abstract” review, through which constitutional questions could arrive at the Constitutional Court from the higher courts in the Austrian judicial system - e.g., the Administrative Supreme Court (Verwaltungsgerichtshof) and the Austrian Supreme Court (Obstergerichtshof).28

The centralized system was adopted by a great number of countries, starting with Czechoslovakia (Const. art. 54.13 (1920)), Liechtenstein (Const. art. 104 (1921)), Iraq (Const. art. 83 (1925) and then by countries such as and Italy (1947) and Germany (1949).29 Ultimately, the system was adopted into the Basic Law of postwar Germany, which experimented with remarkable developments, especially the constitutional complaint (Verfassungsbeschwerd), an instrument that allows individuals to directly address constitutional questions to the court30.31 However, the German constitutional tradition was more closely connected to the ex tunc effects approach - which was a large difference from the Austrian model, which engaged in ex nunc (or prospective) effects32; German jurisdiction, in some cases, evolved to accept nonretroactive effects in its decisions.33

Later, “Kelsenian” type constitutional courts were adopted in many European countries such as Portugal (1976), Spain (1978) and the former Soviet bloc after the cold war.34

In addition to the “American” and the “European” (or “Austrian”) models of constitutional review there is another centralized model associated with the 1958 Constitution of France; this model was transported to many former French colonies that gained independence.35 The French Conseil Constitutionnel was a specialized court that was known to exercise an “a priori” judicial review, which can be understood as a preventive constitutional review because it was designed to hear challenges to legislation from a limited number of governmental actors before legislation was promulgated.36 Constitutional amendments in 2008 transformed the French system to include postpromulgation review, making it much more similar to the German model.37

3. THE MIXED JUDICIAL REVIEW SYSTEMS IN LATIN AMERICA AND THE MODELS APPLIED IN BRAZIL AND COLOMBIA

Inspired by the American experience, many countries in Latin America created constitutions, such as Brazil (Imperial Constitution of 1824), Mexico (1824) and Gran Colombia38 (1821, also called Cúcuta Constitution), etc. It was no surprise that the first model of judicial review adopted in certain countries in the region was the American model.39

After the emergence of the European model in 1920, some constitutions in Latin America started to practice “abstract” review in addition to the concrete review that continued to be used.40 There were countries that created specialized constitutional courts, such as Colombia. Others created special bodies inside their supreme courts to function as a “constitutional court”, such as “Sala Cuarta” in Costa Rica. Others countries enlarged the jurisdiction of their supreme court to include the exercise of “abstract” review, which occurs in the Brazilian Supremo Tribunal Federal.41

This Latin American blend of centralized and decentralized systems created what many scholars call hybrid or mixed judicial review systems.42

Jackson and Tushnet affirm that hybrid systems also exist, where all judgments and courts can refuse to apply unconstitutional laws, but there is also a special court with the specific function of exercising judicial review.43 Brewer-Carias gave special emphasis to the mixed model, calling it a “Latin American contribution” to judicial review and stating that Latin America “deserves the credit for having originated hybrid systems in the 19th century”.44 Louis Favoreau also understands that, in addition to the American and European models, there is a Latin American45 model of judicial review.46

In Brazil, judicial review of legislation started diffusely and, especially under the 1988 Constitution, amplified the role of Supremo Tribunal Federal of the Constitutional Court. However, the large volume of “recursos extraordinários” led the Brazilian Supreme Court into a serious crisis due to the risk of not only being unable to fulfill its constitutional role but also its failure as institution.47 With the “repercussão geral”48 requirement, the Brazilian Supreme Court attempted to deal with its enormous volume of cases, trying to diminish its dysfunctional character.

Regarding the types of constitutional adjudication, the Brazilian system can be considered a mixed or hybrid model. Judicial review can be exercised by all judges and tribunals along the entire judicial hierarchy of the nation, mainly in concrete review cases. The Federal Supreme Court plays a very special role, not only as the last court of appeal in the hierarchy of the nation but also as a constitutional court. Both concrete and abstract review are within the jurisdiction of the Supreme Court; however, abstract review is not open to everyone but only to few political actors, such as the federal and state governments, the prosecutor general, the heads of the senate and the house of representatives, represented political parties, the Brazilian Bar Association and confederations or national unions. Brazilian constitutional review can be characterized as an a posteriori system, as adjudication is conducted after the legislation is implemented.49

Colombia is a good example of “the mosaic”50 of constitutional adjudication that characterizes Latin America.

On one hand, similar to the Brazilian model, Colombia practices concrete, diffused, a posteriori review when an individual files a petition (for example, recurso de amparo or acción de tutela) at a lower level of the judicial hierarchy when he or she considers the law (or other decree) unconstitutional because it violates his or her constitutional rights.51 However, unlike what occurs in Brazil, in Colombia, as noted by Juan Carlos Rodríguez-Raga, “the Colombian Constitutional Court may choose to review any lower-court decision on a petition, having therefore, the ability to discretionally grant certiorari to a case and settings its own agenda”.52

On the other hand, the Colombian Constitutional Court practices abstract constitutional review. Such a review can be a priori or a posteriori,53 including the analysis of laws before or after promulgation. Such a review can address not only to laws but also international treaties, executive emergency decrees, and statutes. Unlike the Brazilian system, the Colombian Constitutional Court can act ex officio, without provocation, especially with regard to a priori reviews.

Regarding a posteriori abstract reviews in Colombia, the main procedural instrument is the API - Acción Pública de Inconstitucionalidad, which is Spanish for “public action of unconstitutionality”; this can be a claim against ordinary bills, executive ordinary (delegated) decrees, and constitutional amendments. However, again, unlike the Brazilian system, where standing to address abstract constitutional questions to the Supreme Court (STF) is closed to a specific list of political actors, the Colombian API can be filed by any citizen and with very few formalities.54 In fact, as noted by Cepeda, Colombia is famous as “the most open and accessible constitutional review system in the Western World”.55

Although abstract review plays a large role in the Colombian Constitutional Court system, a great number of cases in the court`s dockets are based on concrete review, especially the “tutelas”, which have become a major instrument for protecting citizen`s constitutional rights.

According to the information found in the Constitutional Court`s website,56 from 1992 to 2018, the court judged 25,182 cases, including 18,843 sentences on the procedure of acción de tutela (80.5%) and 6,339 decisions in abstract reviews (acción pública de inconstitucionalidad) (25%).

The numbers in Brazil are dramatically higher than those in Colombia. The Federal Supreme Court of Brazil, in 2018 alone (until sept. 2^nd), decided 84,950 cases, including 64,681 “recursos extraordinários” (extraordinary appeals) or related “agravos”.57 In less than one year, the Brazilian Supreme Court decided over three times the number of cases as the Colombian Constitutional Court in 26 years. The alarming number of cases that reach and are decided by the Supreme Court explains a large part of the dysfunctional character of the court.58

After this view of the Brazilian and Colombian jurisdictional systems, we will analyze the criteria of “autonomy” and “authority”, specifically with regard to the actual protection of rights and the role played by the Colombian Constitutional Court and the Brazilian Federal Supreme Court through their jurisdictional procedures.

4. THE CRITERIA OF AUTONOMY AND AUTHORITY OF CONSTITUTIONAL AND SUPREME COURTS AND THE INSTRUMENTS USED BY THE COLOMBIAN CONSTITUTIONAL COURT AND THE BRAZILIAN FEDERAL SUPREME COURT

Why can some supreme or constitutional courts protect social and individual rights in a more effective way than others?

There have been some institutional explanations from scholars in comparative constitutional law that are starting to be tested by empirical studies.59 Although there are still a small number of papers that examine the protection of rights by constitutional or supreme courts from a comparative perspective, such works are beginning to emerge, including studies on Latin America.60 These studies take into account two broad dimensions in measuring the role played by the court: autonomy (or independence) and authority (or power).61

The criterion of autonomy or independence can be understood as the “judge`s freedom to decide according to his or her own sense of what the law requires”62 or, in other words, “the ability and willingness of courts to decide cases in light of the law without undue regard to the views of other government actors”.63

Daniel Brinks and Abby Blass divide the criteria of autonomy into two different dimensions: ex ante and ex post autonomy. Ex ante autonomy “is concerned with pluralism in the process of appointing justices, and with the ability of a single outside actor to control appointments”. Ex post autonomy “measures the extent to which a single actor can shape and manipulate the incentives of sitting justices”.64

The criteria of ex ante and ex post autonomy are very important for the role played by the constitutional or supreme court (as an institution) and its members (individually), but the present article will focus specifically on another important aspect of the criterion of authority: the standing to file constitutional claims with the court.

As pointed out by Brinks and Blass, even “the most autonomous and unaccountable court in the world will not be an influential political force if it is difficult to access or lacks the tools to act decisively on a wide range of issues”.65 This perspective is the reason for the importance of the dimension of authority.

Authority or power is a dimension that “evaluates the court`s ability to intervene decisively on a broad range of politically relevant issues, on behalf of a broad range of actors”.66

This dimension can be seen in three domains: a court`s formal toolkit, its accessibility, and its decisive capacity.67

The first includes all the main elements that define the scope of the court`s jurisdiction, such as the nature and number of rights it adjudicates and other powers it might have beyond deciding cases (like impeaching presidents or supervising elections). The second involves the nature and number of actors that are entitled to bring cases before the court and the procedural instruments (mechanisms) used to access the court. The third and final aspect relates to the effect of the court`s judgments: whether the decisions have general binding effects (erga omnes) or just inter partes effects.68

The present article aims to examine the second abovementioned aspect of authority: the different types of procedural instruments used to access the Colombian Constitutional Court and the Brazilian Supreme Court and, in particular, the accessibility in each system (who can bring constitutional claims to the courts). The main purpose is to discuss the accessibility of the Colombian Constitutional Court and the Brazilian Federal Supreme Court and how this accessibility might affect the role performed by each court in terms of the protection of social and individual rights.

Thus, based on the classification proposed by Cappelletti69 and taking the range of models and institutions created throughout the development of constitutionality control70 we can distinguish four basic revision tools: (1) concrete and concentrated, a posteriori; (2) concrete and diffuse (decentralized), a posteriori; (3) abstract and concentrated (centralized), a priori; and (4) abstract and concentrated (centralized), a posteriori.71

(1) concrete-centralized-a posteriori

In concrete instruments of centralized a posteriori review, such as the Spanish amparo, the German Verfassungsbescwerde or the Mexican controversia constitutional, decisions can have either erga omnes or inter partes effects, or the instruments can be open to all citizens or restricted to public authorities.72 We do not see very clear procedural instruments of concrete-centralized-a posteriori review either in the Brazilian73 or the Colombian systems.

(2) concrete-decentralized-a posteriori

The second instrument, concrete-decentralized-a posteriori, corresponds to the Mexican amparo, the Colombian tutela, the Brazilian mandado de segurança, or the Anglo-Saxon habeas corpus. As a decentralized procedure, it can be heard by any judge, and the decisions, generally, have inter partes effects. Usually, instruments of this kind are open to every citizen. If the decisions are appealed and reach the supreme court or the instrument is presented directly to the supreme or constitutional court the judgments may acquire general effects.74

The Colombian tutela is an instrument that is open to all citizens, and despite the fact that it has inter partes effects, the ratio decidendi from the decision of the Constitutional Court is binding, affecting the whole society.75 Specifically, when the Court declares an “unconstitutional state of affairs” through the tutela, it gives “general validity to its rulings”.

Diffuse-concrete-a posteriori instruments under the jurisdiction of the Brazilian Supreme Court, such as mandado de segurança or habeas corpus, have inter partes effects. On the other hand, recursos extraordinários with recognized repercussão geral (general repercussion) have general effects. Recursos extraordinários (extraordinary appeals) and related Agravos constitute the greatest number of cases on the court`s docket, which led Justice Moreira Alves to pronounce that “the crisis of the Federal Supreme Court is the crisis of the extraordinary appeals”.76

(3) abstract-centralized-a priori

The classic decisions of the French Conseil Constitutionnel are the prototypical example of abstract-centralized-a priori instruments. These instruments must have erga omnes effects because the procedure focuses on quality control for the lawmaking process. Generally, instruments of this kind are not open to every citizen.77

However, it is interesting to point out that the Colombian API - Acción Pública can be “automatic”, functioning as an instrument to control the constitutionality of a law without the need for an action by a plaintiff.78 Therefore, this instrument plays a very similar role as the typical a priori French review system in this case.

In Brazil, there are no instruments of this kind.

(4) abstract- centralized-a posteriori

The fourth type of instrument, abstract-centralized-a posteriori, such as the Mexican acción de inconstitucionalidad, the Colombian acción pública de inconstitucionalidad, or the German abstraktes Normkontrollverfahren, is based on the Kelsenian classic79 model of judicial review.

The Brazilian system, currently, has several instruments of this kind: ação direta de inconstitucionalidade (direct action of unconstitutionality), ação declaratória deconstitucionalidade (declaratory action of constitutionality), arguição de descumprimento de preceito fundamental (action of noncompliance with basic precept) and ação de inconstitucionalidade por omissão (action of unconstitutionality for omission).

However, unlike the Colombian acción pública de inconstitucionalidad, which is open to all citizens, Brazilian abstract instruments of centralized constitutional review are only available to a few political or associated actors.80

5. THE EFFECTIVE PROTECTION OF SOCIAL AND INDIVIDUAL RIGHTS BY THE BRAZILIAN SUPREME COURT AND COLOMBIAN CONSTITUTIONAL COURT AND ITS RELATION TO THE STANDING TO BRING A CONSTITUTIONAL LAWSUIT TO THESE BODIES

Recent studies are beginning to provide data on the effective role played by constitutional or supreme courts around the world. In particular, in Latin America, there are amazing empirical studies that locally or regionally disclose which or whose rights are being protected.

Our paper aims to analyze the protection of social and individual rights in Brazil and Colombia by the Colombian Constitutional Court and Brazilian Supremo Tribunal Federal.

According to Adam Clinton and Mila Versteeg, “social rights are also individual rights. They are individual entitlements that are not typically enjoyed in groups”. The authors exemplify this statement using the right to education, which “entitles individuals to have access to schooling”, or the right to healthcare, which “grants individuals a right to access basic types of healthcare.81

A very broad study involving all Direct Actions of Unconstitutionality, decided by the Brazilian Supremo Tribunal Federal from 1988 to 2012, demonstrated that “more than protecting basic rights and guarantees, the centralized system of judicial review is an instrument for the protection of corporative interests, showing thereby a clear dissonance between the mainstream literature and the judicial practice”.82

Another study conducted by Juliano Benvindo of the University of Brasilia concluded that “acting as a Constitutional Court, the Court has done little in terms of guarding the Constitution or defending minorities, as proven here empirically”.83

Diana Kapiszewski, in her paper on the Brazilian Supreme Court, is emphatic that “case evidence suggests that the STF played a less active role in the rights realm: the sample under study contains a few important cases regarding emerging SE rights” and “the Court did not consistently enforce rights”.84

Daniel M. Brinks, analyzing the role played by the Brazilian STF, takes a more optimistic view of the court in terms of the protection of rights. The scholar thinks that the Brazilian Supreme Court is “moderately able” to protect rights and police the separation of powers (“ventilate separation of power disputes”). Brinks states that STF justices are “protective of settled constitutional structures and understandings, including notions of due process and basic first-generation rights” but “cautious in embracing positive rights claims”.85

Gretchen Helmke and Julio Ríos-Figueroa, comparing all 18 countries in Latin America, concludes that Colombian judges and, increasingly, Brazil`s magistrates “are among the major political players, capable or shaping the most important political issues of the day”.86 The main difference is that, unlike Colombia, Brazil`s judiciary, especially its Supreme Court, is much more willing to solve interbranch or federal disputes and protect corporate interests than it is to adjudicate social and individual rights.87

The Colombian Constitutional Court and Costa Rica`s Sala Cuarta, “have been willing and able to both to enforce rights and to arbitrate interbranch relations”.88

In a different way, the Brazilian STF and other courts, such as the Chilean and Mexican Supreme Courts, “staked their reputations on arbitrating interbranch disputes but have largely eschewed the role of rights protector”.89

Focusing specifically on the analyzes of the Colombian Constitutional Court, Juan Carlos Rodrígues-Raga concludes that “overall, from a comparative perspective, the Colombian Constitutional Court has earned a well-deserved reputation for its autonomy” and “occupies a central position in the Colombian political arena and plays a vital role for the protection of citizen rights”.90

In “Rethinking judicial empowerment: The new foundations of constitutional justice”, Daniel Brinks and Abby Blass apply the criteria of autonomy (ex ante and ex post) and authority to evaluate all the constitutional models in Latin America from 1975 to 2009.91

Regarding authority and, more specifically, the criteria of standing to present constitutional claims before the courts, the collected data review a particularly special role played by the Colombian Constitutional Court.

The research states that “Colombia, by most accounts the country with the most active and consequential court in the entire region, has the court with the highest degree of authority among the group, coupled with high levels of autonomy”.92

Brazil`s STF, in more recent years, has also been considered a “significant player” in the major policy disputes in the country,93 but as mentioned previously, it is better at resolving interbranch disputes than it is at enforcing social rights.

The Colombian Constitutional Court, like the Supreme Court of Costa Rica, “exhibits independence vis-à-vis the executive” and “tried to compensate for the predominance of the President and the deficit of political control by the Parliament, with a strong review of economic and social policies and programs”.94

According to Carlos Bernal-Pulido, the Colombian Constitutional Court began to play this role specifically “due to the existence of public standing of individuals to take economic and social rights cases to jurisdiction by means of writs, such as the Colombian Acción de Tutela”. 95

There is a large contrast between the many procedures of abstract review in Brazil and the sole abstract action available in the Colombian system. The difference in the number of instruments may give the initial idea that rights are better protected by the various Brazilian instruments.

However, when we observe that the access to using these procedures in Brazil is limited to political authorities,96 the national Bar Association and confederations or national unions and compare this situation to the open access to every Colombian citizen to file an acción púbica de inconstitucionalidad with the Colombian Constitutional Court,97 it becomes clear why we believe there is greater access to social and individual rights through the Colombian Constitutional Court and why these same rights are more effectively protected in Colombia.

As pointed out before in this paper, recent empirical research developed by the University of Brasilia Law School, which examined all the ADIs (ações diretas de inconstitucionalidade) decided by the Brazilian Supreme Court (STF) until 2012, came to the conclusion that the court, through abstract review, does not effectively protect individual or social rights.98

We do not yet have data on the protection of rights by the STF through concrete review procedures, but studies that do not distinguish between modes of constitutional review have stated that the Brazilian Supreme Court does not effectively protect social or individual rights.99

Costa and Benvindo`s research comes to a similar conclusions as those in other comparative constitutional law studies: abstract control of constitutionality is a good way to resolve political disputes but not to protect rights.100 On the other hand, according to these studies, instruments of concrete review are better suited to the defense of rights.101

Of course, this finding does not mean that all concrete procedures of judicial review, centralized or uncentralized, lead to good levels of protection of social and individual rights or that abstract procedures of judicial review are not able to protect rights. The issue is much more complex than that. However, the studies show a tendency, which has been observed in the various judicial review mechanisms - that concrete procedures tend to protect rights in a more effective way than abstract ones.

The explanation for this phenomenon may lie in the access to constitutional or the supreme courts. Concrete procedures could be seen as better instruments to protect individual or social rights because they allow individuals - as long as the mechanism is open to general citizens - to bring constitutional claims related to violations of their own rights.

The mixed system of instruments in the Colombian Constitutional Court, especially the tutelas (concrete instrument) and the acción pública de inconstitucionalidad (abstract instrument), makes the court capable of effectively protecting social and individual rights.

The Colombian Constitutional Court is known as one of the strongest tribunals in terms of the protection of fundamental rights, especially those related to individual and social rights. According to the court, there is an absolute minimum “below which each citizen has a constitutional right to enjoy the necessary means for a basic level of subsistence”.102

As observed by Carlos Bernal, “the minimum core is different from reasonableness”103. While reasonableness is based on the idea that only the executive and legislature are empowered to stablish the minimum amount and judges should be deferential to this determination unless it is unreasonable, the minimum core doctrine states that courts can “determine the minimum amount and quality of goods and services that political authorities should deliver to the individuals”.104

The Colombian Constitutional Court`s case law offers a great number of examples of the use of the minimum core doctrine (see, the judgments: SU-559/1997, T-068/1998, T-153/1998, SU-090/2000, T-068/2010, T-025/2004 and T-760/2008). For example, concerning the right to water, the court decided that every citizen should receive a minimum amount of clean water daily (see, the judgment T-740/2011). In the same sense, when applied to the right to health, the court determined that the government must guarantee a minimum schedule of products and services (medical services and medicines) to all individuals, regardless of their income level (T-760/2008).

The Colombian Constitutional Court has also has an important role as protector of social rights in structural cases concerning a variety of themes, such as the lack of compliance with the state`s duty to link public officials to the social security system (judgments SU-559/97, T-068/98, T-535/99, and SU-090/2000), prison overcrowding (Judgment T-153/98), too little protection granted to human rights advocates (judgment T-590/98), constitutional rights of internally displaced people (judgment T-025/2004) and the right to health care (judgment T-760/2008).

In some of these structural cases, the Colombian court declared the existence of an “unconstitutional state of affairs”, which means “a massive violation of human rights, which is cause buy a significant institutional blockage that must be overcome with the engagement of various state agencies”.105

In other cases, in addition to the declaration of “unconstitutional state of affairs”, the court delivered “orders to the legislative and the executive related to the design and performance of specific policies and programs” and “empowered itself with the competence to supervise the fulfilment of those orders in yearly public hearings”.106

Colombian justices of the Constitutional Court are considered defenders and expansionists of the welfare state, especially through decisions extending the benefits of social and economic rights to previously excluded groups.107

The Brazilian Supreme Court, Supremo Tribunal Federal (Federal Supreme Court), has also dealt with structural cases. In a decision on the violation of the constitutional rights of the inmates due to overcrowded prisons (judgment of 27 September 2015), the Brazilian Supreme Court, like its Colombian counterpart, declared the existence of “an unconstitutional state of affairs”.108

This declaration of the existence of an “unconstitutional state of affairs” means there is “a massive violation of human rights, which is cause buy a significant institutional blockage that must be overcome with the engagement of various state agencies”.109

However, from a comparative perspective, the Brazilian STF does not protect rights as effectively as the Colombian Constitutional Court. Based on Ran Hirschl`s theory on the “juristocracy”,110 we may construct explanations for this conclusion involving the social and political structures in Brazil and the interrelations between political and economic actors. According to Hirschl, “no theory of judicial review (…) is complete if it does not consider the political determinants of judicial empowerment and behavior, and the interplay between the political and judicial spheres”.111

To make this analysis even more challenging and more complete, there are some studies that demonstrated that the poorest members of societies face greater difficulty in having their rights protected by their main courts. One study on Brazil “notes that most judicial decisions enforcing social welfare rights involve the direct provision of goods towards litigants who can afford the court system, instead of broad distributional change for the poorest”.112 Even the well-regarded Constitutional Court of Colombia has had some difficulty with this matter. A study conducted by David Landau (2012) “shows (…) that judicial enforcement of social rights tends to direct resources towards higher income groups that can afford to go to court, while failing to improve the lives of the poorest citizens”.113

6. CONCLUSION

Although there are many factors that influence the role of a court with regard to the protection of rights (such as ex ante and ex post autonomy), one of the main aspects is the criterion of authority and, specifically, its second dimension (openness to access the court).

Based on the research of the scholars of the University of Brasilia Law School,114 Justice Luiz Roberto Barroso of the Brazilian Supreme Court, in a very recent decision, verified the “restrictiveness” of the Brazilian abstract judicial review system before the STF and interpreted the law to enlarge the criterion of “thematic relevance” (“pertinência temática”, in Portuguese) to grant access (standing) to a national gay association to defend its ideas in an abstract constitutional review procedure (ADPF n. 527).115

The express declaration of one of the justices of the STF regarding the restrictive aspect of the Brazilian constitutional review system shows that it is one of the points that need to be considered to improve the system. A more open system that controls the number and subjects of cases that reach the court and that focuses on effective social and individual rights protection can change Brazil`s “eschewed role”116 in rights adjudication.

After examining the data on the Colombian Constitutional Court`s case law, Rodríguez-Raga concluded that the court plays its “vital role for the protection of citizen rights, especially because of the openness of the country`s constitutional justice system”. In Colombia, “not only can any citizen present in front of a lower court but also, with very few formalities, any citizen can file a constitutional challenge to legislation (i.e., an abstract review case)”.117

The comparison between Brazil and Colombia presents relevant insights into how the dimension of authority and, specifically, standing to access the main courts in each system can make a large difference in the protection of social and individual rights.

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Notes

Author notes