Saying private rights as a result of an effective constitutional judge: The fresh instance of gays into the Costa Rica

Bruce M. Wilson, Claiming personal legal rights by way of a great constitutional legal: This new exemplory case of gays inside the Costa Rica, Globally Journal regarding Constitutional Rules, Volume 5, Matter dos, , Users 242–257,


During the 1989, a freshly composed Constitutional Courtroom (Sala IV) quickly turned an incredibly active judge, stop over 160 several years of Costa Rican judicial inactivity. The fresh magistrates’ actions breathed new lease of life towards Constitution, concluded official deference in order to selected authorities, and consequently switched Costa Rican governmental existence. As well, this new Sala IV magistrates assumed the fresh role regarding guardians out of constitutional liberties, offering rise as to the might be also known as a rights revolution. The article sheds white to your abrupt relevance of one’s 40-year-old Constitutional document courtesy a study of this new organization guidelines and you can tips significantly less than that the the Court works, and it also examines the fresh successes and you may problems of one of one’s nation’s extremely marginalized communities during the looking to security of the constitutional rights regarding the Court.


For the 1999, Costa Ricans well known its Constitution’s fiftieth anniversary. step 1 The fresh value of your Composition on these 50 decades is actually regularly divided into several distinct periods, pre and post brand new 1989 production of an effective constitutional chamber away from the fresh new Ultimate Legal (Sala Constitucional or Sala IV). dos Just before 1989, the newest constitutionality of lawmakers’ strategies try rarely confronted, and political leaders noticed its “capability to legislate is actually pure,” allowing them to regularly ignore constitutional restrictions on the energies. step three Although not, the latest comprehensive personal and you can personal liberties terms of Structure was rarely addressed from the Finest Courtroom. cuatro The actions away from Sala IV magistrates keeps breathed new way life into the Structure and transformed Costa Rican government, 5 once the Sala IV keeps consistently read and you can absolutely felt like private rights claims. It’s commonly decided you to, given that 1989, Costa Rica has received an official trend- alot more particularly, good “rights” revolution-who’s got advised someone and you can groups from virtually every sector out-of society to turn for the Judge getting redress. six

Because magistrates of Finest Court in the past deferred toward well-known twigs out-of bodies, they now act as energetic guardians of your own Structure. As one Sala IV magistrate, Eduardo Sancho, place it: “It’s important to understand this new Sala IV never as an facilities created to feel in the service of administrator department, but a bit the opposite: to protect new liberties men and women.” seven The magistrates provides daily and you can decisively ruled inside the cases of personal rights says, frequently in favor of politically poor and you may socially ines Sala IV conclusion on the times filed of the several of the most weakly arranged, politically and you may socially marginalized members of Costa Rican people. Ahead of doing this, it talks about the brand new judicial institutional structure before and after the newest creation from Sala IV to spell it out the root of your own Court’s heightened official activism and, specifically, brand new restored benefit assumed from the constitutional specifications as the latest chamber was at process.

step 1. From official laziness to judicial activism

For the earliest 160 years of freedom, Costa Rica’s Ultimate Legal behaved like other most other Latin american courts, running on the assumption your actions of your own preferred branches away from government was in fact constitutional except if they certainly were egregiously and needless to say otherwise. 8 Such as remaining part, Costa Rica’s constitutions included expense from legal rights which were largely overlooked and you may, more often, only “parchment barriers, ineffective against governmental stamina.” 9 For many years there is considerable argument one of the twigs off regulators about the judicial opinion. It wasn’t until 1938 that Supreme Judge built their “judicial supremacy for the constitutional matters.” ten But, such as most of with the rest of Latin The usa, this new constitutional claims away from private liberties afforded little protection contrary to the caprices out-of governmental professionals, specifically for marginalized somebody. 11