The politics of judicial review in Chile in the era of democratic transition, 1990–2002

Abstract

The study addresses the politics and effects of judicial review in Chile. It concludes that by and large the Chilean courts have refused to exercise their constitutional review powers in defence of individual rights. Although this suggests that Chile represents a ‘negative model’ of judicial review in transitional democracies, the author argues that such an understanding would be simplistic. The Chilean courts' reluctance to exercise their review powers represents the continuation of a long-held strategic stance of avoiding politically controversial cases. This in turn has contributed to the preservation of the autonomy and political independence that has historically allowed the Chilean judiciary to play a crucial role in the promotion and maintenance of the legality that characterises this country. Merging the insights of two academic fields that rarely communicate – democratization studies and public law and courts – the author proposes that prematurely introducing judicial review of the constitution in non-consolidated democracies could actually make things worse. This, because it introduces irresistible incentives for government intervention in the work of the courts, thus destroying a sine qua non of the rule of law: judicial independence.

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