Saying private legal rights using good constitutional court: The new exemplory case of gays in Costa Rica

* Member teacher away from governmental research, School from Central Florida, and invitees specialist at Chr. Michelsen Institute, Bergen, Norway. This really is a changed sorts of a newsprint showed at the “Process of law in addition to Marginalized: Comparative Experiences” working area at Universidad Diego Portales, Santiago, Chile, . The author wants to give thanks to Juan Carlos Rodriguez Cordero, Roberto Gargarella, Siri Gloppen, Rachel Sieder, Kerstin Hamann, plus the I•Swindle reviewers and you may writers. Email:


Bruce M. Wilson, Claiming individual liberties due to an excellent constitutional judge: The fresh instance of gays during the Costa Rica, Global Log off Constitutional Rules, Volume 5, Topic dos, , Pages 242–257, Navbar Browse Filter Mobile Go into keywords Search Navbar Browse Filter out Get into keyword Research


During the 1989, a newly written Constitutional Court (Sala IV) instantly became a highly energetic legal, stop over 160 several years of Costa Rican judicial laziness. The latest magistrates’ tips breathed new lease of life into the Constitution, ended official deference to help you opted for authorities, and consequently transformed Costa Rican governmental lifetime. Additionally, this new Sala IV magistrates assumed the latest character of guardians out-of constitutional liberties, providing rise as to the is sometimes referred to as a liberties wave. The content sheds white toward sudden relevance of one’s 40-year-old Constitutional file using an examination of the new institutional legislation and tips under that the latest Courtroom works, therefore explores this new accomplishments and you may failures of a single of your country’s very marginalized teams during the seeking to security of the constitutional liberties on the Judge.


In 1999, Costa Ricans notable its Constitution’s fiftieth anniversary. 1 Brand new relevance of your Constitution on these fifty years is actually continuously split into one or two line of episodes, pre and post brand new 1989 production of a great constitutional chamber regarding the fresh Best Legal (Sala Constitucional otherwise Sala IV). dos Before 1989, the new constitutionality of lawmakers’ procedures is hardly challenged, and political figures experienced their “ability to legislate is sheer,” allowing them to routinely skip constitutional restrictions on the powers. step 3 Yet not, the extensive individual and you may personal legal rights conditions of your own Structure were seldom handled of the Supreme Courtroom. 4 What from Sala IV magistrates provides breathed new life to the Structure and you may switched Costa Rican government, 5 because Sala IV has consistently read and you will absolutely decided personal liberties says. It is widely consented you to, while the 1989, Costa Rica has already established a judicial revolution- even more especially, an effective “rights” revolution-who has recommended individuals and you can groups from just about any sector away from society to turn on Judge to own redress. 6

Given that magistrates of your Best Legal previously deferred to the popular twigs off bodies, it today work as effective guardians of Constitution. As a whole Sala IV magistrate, Eduardo Sancho, place it: “It is important to understand this new Sala IV much less an enthusiastic institution created to become from the services of your professional branch, but somewhat the opposite: to safeguard the rights men and women.” 7 New magistrates has on a regular basis and decisively governed for the instances of individual liberties states, apparently in favor of politically weak and you may socially ines Sala IV decisions into cases registered by the a few of the most weakly planned, politically and you may socially marginalized people in Costa Rican people. Before this, they talks about the new judicial institutional construction pre and post the newest production away from Sala IV to explain the brand new roots of your own Court’s increased official activism and you will, specifically, this new renewed benefit assumed from the constitutional terms just like the the brand new chamber was in operation.

step one. Out of judicial inactivity in order to official activism

Toward basic 160 numerous years of versatility, Costa Rica’s Best Courtroom behaved like other almost every other Latin american process of law, running on the assumption the actions of the popular twigs off regulators had been constitutional until these were egregiously and definitely or even. 8 As in rest of the part, Costa Rica’s constitutions integrated expenses out-of liberties which were mainly forgotten and you can, more often, simply “parchment barriers, useless facing governmental power.” nine For decades there is certainly big disagreement one of several twigs out-of bodies about the official review. It wasn’t up until 1938 your Supreme Courtroom founded their “judicial supremacy in constitutional things.” ten However,, like in a lot of the remainder of Latin America, the latest constitutional pledges away from individual liberties afforded nothing safety against the caprices away from political managers, specifically for marginalized people. eleven

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