The Rule of the Courts

THE ROLE OF THE COURTS IN THE PROTECTION OF FUNDAMENTAL RIGHTS AND IN GUARANTEEING THE RULE OF LAW Vasco Pereira da Silva | Adriana Ancona Faria Jörn Axel Kämmerer | Francisco Balaguer Callejón Claas Friedrich Germelmann | M. Akram Faizer

2026

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The Role of the Courts in the Protection of Fundamental Rights and in Guaranteeing the Rule of Law VASCO PEREIRA DA SILVA | ADRIANAANCONA DE FARIA JÖRN AXEL KÄMMERER | FRANCISCO BALAGUER CALLEJÓN CLAAS FRIEDRICH GERMELMANN | M. AKRAM FAIZER

Lisboa / 2026

Ficha Técnica Título: The Role of the Courts in the Protection of Fundamental Rights and in Guaranteeing the Rule of Law AAFDL Editora – 2026 Autores: Vasco Pereira da Silva Adriana Ancona de Faria Jörn Axel Kämmerer

Francisco Balaguer Callejón Claas Friedrich Germelmann M. Akram Faizer Edição: AAFDL Editora Alameda da Universidade – 1649-014 Lisboa ISBN: 978-989-9312-66-1 abril / 2026

CONFERENCE SUI IURIS + ELPIS + SIPE + SEALS

«The Role of the Courts in the Protection of Fundamental Rights and in Guaranteeing the Rule of Law»

XV Annual Meeting SUI IURIS, Asociación Iberoamericana de Facultades y Escuelas de Derecho Faculdade de Direito da Universidade de Lisboa / Law Faculty of the University of Lisbon 3-4 July 2025

Table of Contents

T ABLE OF C ONTENTS

Presentation .............................................................................................. 9

Courts and Rule of Law: Past, Present, and Future .............................. 13 V ASCO P EREIRA DA S ILVA

The Role of Courts in Guaranteeing Fundamental Rights: Contemporary Issues / The Brazilian Case ........................................... 31 A DRIANA A NCONA DE F ARIA

Making Constitutional Courts Resilient: The German Example ........... 39 J ÖRN A XEL K ÄMMERER

The algorithm that pronounces the words of the law. The evolution of the role of the courts in protecting rights and guaranteeing the rule of law up to the digital revolution ...................... 53 F RANCISCO B ALAGUER C ALLEJÓN The Role of the Courts in the Protection of the Rule of Law and of Fundamental Rights – A European Law Perspective ................. 77 C LAAS F RIEDRICH G ERMELMANN Adopting a Canadian Style Legislative Override to Reconcile American Judicial Review with Democratic Accountability and the Rule of Law ................................................................................ 97 M. A KRAM F AIZER

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P RESENTATION

Presentation

P RESENTATION

The XV Annual Meeting of the “SUI IURIS, Asociación Iberoamericana de Facultades y Escuelas de Derecho” (https://suiiurisasociacion.wordpress.com/) took place between the 3rd and 4th of July, 2025, at the Faculty of Law of the University of Lisbon. SUI IURIS is a network of Ibero-American Law Schools and Faculties aimed at promoting student mobilities and academic cooperation as well as sharing research between partner institutions. The Lisbon meeting also sought to be an opportunity to strengthen cooperation links between SUI IURIS and other similar institutions linked to legal research and teaching in Europe and North America, which were invited to participate in order to build “new bridges” between different “legal continents”. The meeting began on July 3rd, with an inaugural session chaired by the Director of the Lisbon Law Faculty, Professor Eduardo Vera-Cruz Pinto, and included interventions by Professor Vasco Pereira da Silva (Head of ELPIS, and Member of the Board of Directors of SUI IURIS and SIPE) and Professor Martin Hevia (President of SUI IURIS). In this session, the meeting was presented to the participants, explaining that the morning programme (Thursday and Friday) would follow the usual order of SUI IURIS meetings, with the discussion of internal issues of common interest, but that in the afternoon, following the model of last year’s meeting in Miami, there would be joint sessions aimed at promoting cooperation between SUI IURIS and other invited academic institutions from Europe and the United States, namely ELPIS (European Legal Practice Integrated Studies / http://www.elpisnetwork.eu/), SIPE (Societas Iuris Pubblici Europaei / https://sipe-online.eu/) and SEALS (Southeastern Association of Law Schools / https://www.sealslawschools.org/). This was followed by a discussion about Mental health and well-being of Law students, with interventions by Professor Maria Graciela Brantt

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The Role of the Courts in the Protection of Fundamental Rights...

Zumaran, Professor Raymundo Gama Leyva and Professor Manuel Gómez. Also, during the morning, a panel on online legal education and COILs programs in the post pandemic context took place, with the participation of Professor Naayeli E. Ramírez Espinosa and Professor Gilberto Guerrero Rocca. During the afternoon the pedagogical experience of the Global Law Classroom (SEALS and ELPIS initiative) was discussed, with contributions of Professor Melanie Reid, Professor Arndt Künnecke, Professor Marine Toullier and Professor Vasco Pereira da Silva, who moderated the session. On 4 July, the General Assembly of SUI IURIS was held. During the meeting, relevant issues concerning the present and future of the Association were discussed, and a new board of directors was unanimously elected, chaired by Professor Naayeli E. Ramírez Espinosa (Univ. Tec de Monterey, México). During the afternoon, a joint SUI IURIS session was held with the ELPIS, SIPE and SEALS networks, on the topic “The Role of the Courts in the Protection of Fundamental Rights and in Guaranteeing the Rule of Law”. Participating in this session were Professor Adriana Ancona de Faria (Sui Iuris), Professor Axel Kämmerer (President of SIPE), Professor Friedrich Germelmann (ELPIS and SIPE), Professor Rui Guerra da Fonseca (ELPIS and SIPE), Professor Francisco Balaguer Callejón (SIPE and ELPIS) and Professor Akram Faizer (SEALS), with the moderation of Professor Vasco Pereira da Silva (ELPIS, SIPE, SUI IURIS). The book now being presented is the written version of the lectures given at the joint conference on a topic as important and topical as the role of the courts in defending the rule of law and fundamental rights. The different perspectives adopted, as well as the analysis of different current political and legal situations from different continents, clearly show the importance of “scientific dialogue” and of building “bridges” between America and Europe, thus fully justifying the raison d’être of this book’s publication. The meeting ended on July 5th with a guided tour of the “Museu da Cidade”, followed by lunch at the Law Faculty, accompanied by music from the “Tuna Feminina” of the Faculty of Law.

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C OURTS AND R ULE OF L AW : P AST , P RESENT , AND F UTURE

Vasco Pereira da Silva

Professor Law Faculty of the University of Lisbon Head of ELPIS Member of the Board of SIPE Member of the Board of SUI IURIS

Vasco Pereira da Silva

C OURTS AND R ULE OF L AW : P AST , P RESENT , AND F UTURE

Vasco Pereira da Silva

The courts play a decisive role in the framework of the rule of law and the protection of fundamental rights. However, this very important role of the judiciary in state and constitutional theory is not always accompanied by the corresponding doctrinal recognition. In my opinion, this is a well known psychoanalytical problem, namely the separation between the ‘body’ and the ‘idea of the body’, i.e. the divergence between reality and its recog nition, or in this case, the lack of (full) recognition of the role of the courts in defending the rule of law. To understand this better, we need to engage in cultural psychoanalysis and analyse how the separation of powers was theorised in the context of political liberalism. The separation of powers can be seen in two different ways, depending on whether it is linked to the state, as in France, or does not require it, as in England, where the transition from medieval logic to political liberalism took place almost continuously and without disruption (apart from Cromwell’s “episodic” revolution), and therefore did not require the emergence of the idea of the state. Thus, in the logic of the French Revolution, what is at stake is the creation of a new model of state, and the separation of powers is seen as an essential element of this. On the other hand, it is curious to note how things turned out differently in England, which was, after all, the birthplace of political liberalism. In England, the idea of separation meant considering each of the powers as autonomous and independent, mutually limiting each other, but without this meaning their integration into any higher entity. It

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Courts and Rule of Law: Past, Present, and Future

is this reference, or lack thereof, to the state that explains ‘how the common root of political liberalism – the English political-constitutional experience – will give rise to two radically different historical experiences, involving different constitutional (material vs. formal constitution) and administrative (common law, hetero-enforcement of public decisions and common courts vs. administrative law, self-enforcement of public decisions and administrative courts) systems 1 . The ‘continental logic’ therefore derives from the concept of the state, ‘conceived by Machiavelli to solve the political problem of the dispersion of power, typical of the Middle Ages, through the creation of an entity that concentrated and unified all the powers of society in itself, and which was embodied in the person of the prince 2/3 . This state, in the image and likeness of the story of Robinson Crusoe, “presents two distinct moments, more logical than chronological, namely: upon arriving on the island, Robinson begins by fortifying himself, gathering all the weapons saved from the ship; only later, when he felt sufficiently secure, did he set out to explore the island, establishing relationships of freedom with things and people (since he eventually found another man, ‘Friday’)” 4 . Similarly, “in the ‘history’ of the state, there is a first moment of maximum concentration and unification of power, which corresponds to the theorisation of the absolute or dictatorial state (in this sense, see the conceptions of authors as diverse as MACHIAVELLI, BODIN, HOBBES and ROUSSEAU); and a second moment, in which the State already feels sufficiently “strong” to go in search of Man, to establish a political organisation that guarantees the freedom and individual rights of citizens, through the technical expedient 1 VASCO PEREIRA DA SILVA, “Em Busca do Ato Administrativo Perdido” (In Search of the Lost Administrative Act), Almedina, Coimbra, 1996, p. 16. See also VASCO PEREIRA SILVA, “Administrative Litigation on the Couch of Psychoanalysis – Essay on Actions in the New Administrative Process,” 2nd edition, Almedina, Coimbra, 2009, pp. 9-168. 2 NICOLAU MAQUIAVEL, The Prince, translation, Europa-América, 1972, p. 13. 3 VASCO PEREIRA DA SILVA, “In Search of the A. A. P.,” cit., p. 13. 4 VASCO PEREIRA DA SILVA, “Structures of Society: Freedom and Solidarity,” in “Gaudium et Spes,” Rei dos Livros, Lisbon, 1988, p. 127.

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of the separation of powers, which corresponds to liberal theorisation (and which finds its expression, among others, in the works of LOCKE and MONTESQUIEU 5 )” 6 . The “liberal state therefore emerges as the result of the combination of these two antagonistic visions, these ‘two moments in the history of the state’. Once again resorting to metaphor, one could say that it is the result of the theoretical contributions of authors who, ironically, we can refer to as the ‘four fathers of the state’ 7 , or, ‘better said, ‘two fathers’ (Hobbes and Rousseau, who represent the masculine element of state theory) and ‘two mothers’ (LOCKE and MONTESQUIEU, who represent the feminine element of the conception of the State)” 8 . Thus, “HOBBES and ROUSSEAU contributed to this model of the State with the theorisation of the democratic element”, “the idea of the social contract as the origin of power, which offered an immanent explanation of political power, basing the State on the will of the people who constitute society”; “for their part, LOCKE and MONTESQUIEU theorised the liberal element of the State, the idea of self-limitation of political power as a guarantee of individual freedom.” 9 The “theorisation of the democratic and liberal state thus presented an authoritarian ‘rib’, alongside a liberal ‘rib’, which explains the relationship of continuity between the absolute state and the liberal state, pointed out 5 See JEAN BODIN, Les Six Livres de la République (facsimile edition of the French publication of 1583), Scientia Aalen, Darmstadt, 1961; THOMAS HOBBES, Leviathan, translation, Imprensa Nacional Casa da Moeda, Lisbon, 1995; JEAN-JACQUES ROUSSEAU, The Social Contract, translation, Europa-América, 1974; JOHN LOCKE, Two Treatises of Government, Everyman’s Library, London, 1984 (reprint); MONTESQUIEU, De L’ Esprit des Lois, in MONTESQUIEU, Oeuvres Complètes, vol. 2, Éditions Gallimard, Paris, 1951. 8 VASCO PEREIRA DA SILVA, Para um Contencioso Administrativo dos Particulares dos – Esboço de uma Teoria Subjetivista do Recurso Direto de Anulação, Almedina, Coimbra, 1989, p. 14. 9 VASCO PEREIRA DA SILVA, ‘Em Busca do A. A. P.’ [In Search of A. A. P.], cit., pp. 15 and 16. 6 VASCO PEREIRA DA SILVA, ‘Em Busca do A. A. P.’, cit., p. 15. 7 VASCO PEREIRA DA SILVA, ‘Em Busca do A. A. P.’, cit., p. 15.

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by ALEXIS DE TOCQUEVILLE 10 . The liberal state, as it was to be imple mented on the European continent, was essentially the result of a compromise between liberal principles, in terms of the organisation of political power, and authoritarian principles, in terms of the functioning and control of the administration. This was a ‘practical’ compromise, which was not contradictory to the ‘theoretical’ matrix of the liberal state model (which, as we have seen, had both a democratic/authoritarian matrix and a liberal matrix), and which would emerge in all its fullness in the understanding of public admin istration 11 . The “theoretical compromise” present in the conception of the liberal democratic and state was now being realised on the European continent through a “practical compromise” in the organisation of state powers. The notion of the State also functions as a kind of “ideological cement” for a certain “French vision” of administration, which originated in the Ancien Régime and remained, in a reformulated form, after the Revolution. In fact, “the Ancien Régime had an administrative law, where concepts such as forms of exercising power and public service already had their place: we find manifestations of them in feudal institutions, then in bodies such as towns and communities, in the king’s councils and intendants, in police functions (including those relating to the economy), in aid to inhabitants, in public works (roads, canals) and urban planning (which facilitated the king’s rights over the territory), in the prohibition of Parliaments from hearing cases relating to the State, its administration and its government (Edict of Saint-Germain, 1641), and in the development of administrative litigation entrusted to specialised jurisdictions” (DELVOLVÉ) 12 . Hence, “the Revolution, if it destroyed everything (“si elle a tout renversé”), also began to rebuild everything, establishing new administrative structures, affirming the rule of law, confirming through texts still in force (law of 10 ALEXIS DE TOCQUEVILLE, ‘l’Ancien Régime et la Révolution’, Gallimard, Paris, 1967, maxime pp. 85-228. 11 VASCO PEREIRA DA SILVA, “Em Busca do A. A. P.” (In Search of A. A. P.), cit., p. 16. 12 PIERRE DELVOLVÉ, Le Droit Administratif, 3rd ed., Dalloz, Paris, pp. 2-3.

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16-24 August 1790, decree of 16 Frutidor, year III), the separation of judicial and administrative functions and the prohibition on judges “from ‘disrupting, in any way whatsoever, the operations of administrative bodies, from summoning administrators because of their functions, from hearing the acts of the Administration, whatever they may be’” (DELVOLVÉ). 13 Moreover, this “French conception” of the separation of powers is not unrelated to the influence of MONTESQUIEU who, based on his analysis of the British constitutional experience – which had also been theorised by LOCKE – analysed it with “continental eyes”, leading to a kind of “game of mirrors”, in which the reflection of the image, from the British experience to the work of MONTESQUIEU and from the work of MONTESQUIEU to the American Revolution, first, and then the French Revolution, then, leads to its progressive deformation and departure from the original model 14 . Let us take a closer look at Montesquieu’s theorisation of the separation of powers in his famous “De L’Esprit des Lois”, which begins by integrating the three public powers (legislative, executive and judicial) within the state, according to a very French logic 15 . At the same time, he also adopted a sociological view of this doctrine, considering that each power corresponded to a social class: legislative power to the bourgeoisie and executive power to the monarch and the aristocratic class. Thus, a “compromise” came into being between the bourgeois class (the “new ruling class”, to use traditional Marxist jargon), which retained legislative power in Parliament, elected by census suffrage, and the aristocratic class (and the monarch), which came from the Old Regime but was to remain integrated into the political system, to whom executive power was attributed 16 . It should be noted that, curiously, in stating this, MONTESQUIEU is “forgetting” to attribute judicial power to any social class, characterising 13 PIERRE DELVOLVÉ, Le Droit A., cit., p. 3. 14 VASCO PEREIRA DA SILVA, ‘Em Busca do A. A. P.’ [In Search of A. A. P.], cit., p. 17. 15 MONTESQUIEU, De L’ Esprit des Lois, in MONTESQUIEU, Oeuvres Complètes, vol. 2, p. 396. 16 MONTESQUIEU, ‘De L’esprit des L.’, cit. pp. 396-407.

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judges as “the mouths that pronounce the words of the law”, entities devoid of any power, since “not being linked to any state, they are invisible or null” 17 . This is because a careful analysis of the situation of justice in the French Ancien Régime should rather have led to the conclusion that judicial power was identified “with the nobility” and with the exercise of a “politically committed” activity, or even “ideological, in the sense of an estate’s claim to active participation in the concentrated power of the absolute king” (GARCÍA DE ENTERRÍA / FERNÁNDEZ) 18 . In denying the relevance of judicial power, Montesquieu was not speaking as a “scientist” but as a “politician”, since, in the case of “Monsieur Charles de Secondat, Baron de Montesquieu, himself president of the Parliament of Bordeaux”, “I dare to suspect that his considerations, which were anything but ‘naive’, about the neutral character of the power of judges (which would be the only one disconnected from any social class and, therefore, politically ‘invisible and null’) 19 , corresponded to a strategic intention to devalue the importance of judicial power, aimed at making the actions of judges more effective in this struggle against royal absolutism” 20 . As president of the Court of Bordeaux, MONTESQUIEU was well aware of the strength and power of the courts in the final phase of the Ancien Régime, when they confronted the absolutist power of Louis XIV, demanding the recording of the monarchs’ decisions (which would later be the seed of constitutional justice). Montesquieu, in stating that the power of the courts was “null” 21 , did so to prevent it from being neutralised. It was an “intellectual political trick” designed to preserve the power of judges, not a scientific observation. This was even more evident because MONTESQUIEU (President of the Court of Bordeaux, it should be noted once again) was aware of the 17 MONTESQUIEU, “De L’esprit des L.”, cit., p. 398. 18 EDUARDO GARCÍA DE ENTERRÍA / TOMÁS-RÁMON FERNÁNDEZ, “Curso de Derecho Administrativo” (Course on Administrative Law), vol. I, 6th ed., Civitas, Madrid, 1993, p. 511. 19 MONTESQUIEU, De L’Esprit des L., cit., p. 398. 20 VASCO PEREIRA DA SILVA, Em Busca do A. A. P., cit., pp. 22 and 23. 21 MONTESQUIEU, De L’Esprit des L., p. 401.

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important role played by the courts (“parliaments”) in the final phase of the Ancien Régime, which had played an important role in the struggle against the concentration of royal power. The main weapons they used in this “battle” were the institutions of the right of registration (“d’enregis trement”), a kind of veto by the court on royal decisions, and censures (“remontrances”), an instrument for controlling administrative decisions of very different scope (LEBRETON) 22 » 23 . These two instruments: the “register” and the “censures” applicable to the actions of the absolute monarch, were a kind of “avant la lettre” constitutional control of both the legislative and executive powers. Such was the “political” and “ 24 “importance of “parliaments” during this period that not only did people begin to talk about the existence of a true “government of judges” (“gouvernement des juges”), but also, even today, this expression is often used – always in French – to characterise the intervening role of the judiciary, in homage to its previous historical prominence. By “forgetting” the importance of these two legal instruments, MONTESQUIEU is seeking to downplay the importance of the judiciary so that it can continue to exist in the future, but in doing so this will also lead to a limitation of the judges’ actions, by removing the possibility of constitutional review, which was in its infancy. MONTESQUIEU also considers that the judiciary is “that through which the State ‘punishes crimes or judges disputes between individuals’ 25 ”, which meant that, for this author, the resolution of administrative disputes did not fall within the remit of the courts. Therefore, “by removing control 22 GILLES LEBRETON, “L’Origine des Cas d’Ouverture du Recours pour Excès de Pouvoir d’après les Remontrances des Parlements au XVIIIème. Siècle,” in “Revue de Droit Public et de la Science Politique en France et à l’Étranger,” no. 6, 1986, pp. 1066-1067. See also GILLES LEBRETON, ‘Droit Administratif Général’, 10th ed., 2019, pp. 4-16, 18 - 23. 23 VASCO PEREIRA DA SILVA, ‘Em Busca do A. A. P.’ [In Search of the A. A. P.], cit., pp. 22 and 23. 24 As ALEXIS DE TOCQUEVILLE writes, ‘the struggle of Parliaments against royal power (...) is almost always in the field of politics and not in that of administration’ (TOCQUEVILLE, ‘L’Ancien Régime et la Révolution’, Gallimard, Paris, 1967, p. 130). 25 MONTESQUIEU, De L’ Esprit des L., cit. p. 397.

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of the administration from the judiciary, the French revolutionaries could invoke the principle of separation of powers, finding ‘cover’ for this inter pretation in the thinking of MONTESQUIEU 26 “ 27 . The principle of separation of powers, as then understood, led to the creation of a ‘domestic judge’, to use NIGRO’s apt expression 28 , a ‘home judge’, as the administrative bodies were given the task of judging themselves. Thus, in the name of the separation of powers, what was established was a system based on the “confusion between the functions of administering and judging” (DEBBASCH / RICCI 29 ), on the promiscuity between admin istrative power and judicial power. And it was this model of administrative litigation that, through the actions of the respective bodies, developed Administrative Law. The “original sin” of Administrative Litigation, estab lished with the French Revolution, is the promiscuity between the tasks of administering and judging, since “administrative justice was born within the Administration” (DEBBASCH / RICCI) 30 . And this “original sin” of Administrative Litigation can also claim the “legacy” of MONTESQUIEU’s conception, with his thesis that the division of powers had to be understood within the framework of the State. Articles 7 of the Decree of 22 September 1789, 13 of Law 16-24 of August 1790, and Article 3 of the Constitution of 1789 prohibited the courts from interfering in the sphere of administration, stipulating that judges could not, “under penalty of forfeiture, disrupt in any way the operations 26 VASCO PEREIRA DA SILVA, “Em Busca do A. A. P.” (In Search of the A. A. P.), cit., p. 19. 27 In this sense, CHAPUS considers that, for MONTESQUIEU, “the adjudication of admin istrative disputes is (...) conceived only as going hand in hand with the act of administering and, consequently, as being included in the powers of the active administrative bodies themselves” (RENÉ CHAPUS, ‘Droit du Contentieux Administratif’, 11th ed., Montchrestien, Paris 2004, p. 42. 28 MARIO NIGRO, ‘Trasformazioni dell’ Amministrazioni e Tutela Giurisdizionale Differenziata’, in ‘Rivista di Diritto e Procedura Civile’, March 1980, No 1, pp. 20 and 21. 29 DEBBASCH / RICCI, Contentieux Administratif, 8th edition, Dalloz, Paris, 2001, p. 4. 30 DEBBASCH / RICCI, Contentieux A., cit., p. 50.

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of administrative bodies, nor summon administrators before them on account of their respective functions” 31 . To justify this prohibition, the French revo lutionaries invoked the principle of the separation of powers, but made a ‘heterodox interpretation’ of it (ENTERRÍA / FERNÁNDEZ) 32 , ‘erroneous’ (GILLES LEBRETON) 33 or ‘distorted’ 34 – later euphemistically referred to by doctrine as constituting the ‘French conception” or the “rigid conception” of the separation of powers 35 –, according to which, “instead of recognising that ‘judging the Administration is still judging’, it was preferred to consider that ‘judging the Administration is still administering’ and that ‘jurisdiction was the complement of administrative action’ (PORTALIS)” (PACTEAU) 36 . The “result of this situation is paradoxical: in the name of the separation of powers between the Administration and the Judiciary, what actually occurs is the blurring of the distinction between the functions of administering 31 See, for all, RENÉ CHAPUS, Droit du Contentieux A., 11th edition, cit., p. 41 et seq.; JACQUELINE MORAND-DEVILLER, ‘Judicial Protection of Administrative Legality and the Principle of Separation of Powers’, in MINISTRY OF JUSTICE, ‘Reforma do Contencioso Administrativo – Trabalhos Preparatórios – O Debate Universitário’, volume I, Lisbon, n.d., p. 425. 32 EDUARDO GARCÍA DE ENTERRÍA / TOMÁS-RÁMON FERNÁNDEZ, ‘Curso de Derecho Administrativo’, 12th edition, volume I, Thomson / Civitas, Madrid, 2004, page 510. 33 GILLES LEBRETON, ‘Droit Administratif Général’, 3rd edition, Armand Colin, Paris, 2004, pages 4 and 5. According to this author, it was deduced from the principle of separation of powers that administrative courts should be prevented from controlling the administration, as such control would be tantamount to interference by the judiciary in the domain of the executive power. This deduction was clearly wrong, since the ordinary courts could have controlled the administration without any danger to the executive power, if they had been confined to their mission, which is to judge, not to administer. Moreover, the United States understood this very well.” 34 VASCO PEREIRA DA SILVA, ‘Para um Contencioso A. dos P. – E. de uma T. S. do R. D. de A.’, cit., p. 19. 35 See, for all, GILLES LEBRETON, “Droit A. G.,” cit., pp. 3 et seq.; RENÉ CHAPUS, “Droit du C. A.,” cit., pp. 41 et seq.; J. MORAND-DEVILLER, ‘Tutela J. da L. A.A. e P. da S. de P.’, cit., in ‘Reforma do C. A. – T. P. – O D. U.’, cit., p. 425. 36 BERNARD PACTEAU, Contentieux Administratif, P.U.F., Paris, 1985, p. 16. This formulation, which in my opinion is very apt, was not repeated by the author in subsequent editions of the work (from the 7th edition, 2005).

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and judging” 37 . Thus, the “principle of separation of powers” of the French revolutionaries, “affirmed and defended by all, elevated to the status of liberal dogma and source of the creation of administrative justice, embodied in all (different) administrative litigation legislation, reaffirmed well beyond the liberal period to explain the peculiarities of administrative control, never existed as such. Because what was created in the name of the principle of separation between administrative and judicial authorities was not separation, but “confusion” between administrative and judicial power, what was established was a system in which the administrator was the judge and the judge was the administrator. The ‘original sin’ of administrative litigation was the creation of a ‘domestic’ or ‘home-grown’ judge 38 . Before MONTESQUIEU, a British philosopher, JOHN LOCKE presented a slightly different version of the separation of powers. For him, the powers (“legislative, executive and federative”) were autonomous and independent, without being integrated into any model of the State 39 . This did not mean, however, that the results did not lead to somewhat similar realities, as LOCKE made no mention of the possibility of control of the legislative power by judges, nor did he refer to the existence of any “excep tions” to the control of the Administration by the courts, whether this was carried out entirely by the “common courts” (as was the case in the 18th and 19th centuries) or as is currently the case with the emergence of the Administrative Court as a specialised court for the Administration, albeit only at first instance. With regard to public administration, at the turn of the 19th century, DICEY stated that the United Kingdom did not have administrative law, just as administrative entities did not have powers of self-regulation over their decisions, and there were no administrative courts. Regardless of the debate as to whether DICEY’s words were still accurate when they were 37 VASCO PEREIRA DA SILVA, ‘Para um Contencioso A. dos P. – E. de uma T. S. do R. D. de A.’, cit., p. 19. 38 VASCO PEREIRA DA SILVA, ‘Em Busca do A. A. P.’ [In Search of A. A. P.], cit., p. 21. 39 JOHN LOCKE, “Two Treatises on Government” (translation), Martins Fontes, São Paulo, 1998, pp. 514-536.

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uttered or whether they were already somewhat exaggerated 40 , what is clear is that they no longer correspond to the British reality resulting from the transition from Aggressive Administration to Service Administration. However, as “prejudices” and “stereotypes” are very difficult to dispel, it is curious to note how “DICEY’s denial of the existence of ‘droit administratif’ in England led many people to assume that there was no Administrative Law in the United Kingdom” (BRADLEY / EWING) 41 . The intervention of public authorities in economic, social and cultural life (which began in the late 19th century but intensified in the 20th century) led, also in Anglo-Saxon countries, to the emergence of rules regulating administrative activity, the recognition of certain administrative authorities (the “administrative tribunals”) with powers of self-regulation of their deci sions, and even the emergence of specific contentious issues, even with regard to the functioning of the courts, where sole jurisdiction does not preclude progressive specialisation 42/43 One could say, ironically, that, like MOLIÈRE’s famous character, who “wrote prose without knowing it”, the British public authorities also began to create and apply Administrative Law “without realising it”, as they began 40 In this regard, CASSESE considers that “DICEY, in contrasting these two models, forced positive law for ideological reasons,” evoking the author’s “Whig” militancy, as well as his “highly critical” judgement of French institutions and his conviction of the superiority of the English legal system. This position led him to ignore that, already in the 19th century, in England, there were authorities, called “inspectorates”, whose task was to exercise public functions with powers derogating from common law (for example, in matters of child labour protection, with powers of inspection and financial penalties)”. (SABINO CASSESE, ‘Le Basi Costituzionali’, in SABINO CASSESE, ‘Trattato di Diritto Amministrativo – Diritto Amministrativo Generale’, Giuffrè, Milan, 2000, vol. I, p. 208). 41 BRADLEY / EWING, Constitutional and Administrative Law, 12th edition (4th reprint), Longman, London / New York, 1998, page 700. 42 See the description of the main distinguishing features between the French system, or ‘executive administration’, and the British system, or ‘judicial administration’, as well as their evolution in FREITAS DO AMARAL, ‘Curso de D. A.’, vol. I, cit., pp. 95 et seq.; VASCO PEREIRA DA SILVA, ‘Para um Contencioso A. dos P.’, cit., pp. 36 et seq. and 52 et seq. 43 See VASCO PEREIRA DA SILVA, ‘O Contencioso Administrativo no Divã da Psicanálise’ (Chapter I), which compares the British and French systems, from which we are quoting some excerpts.

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Courts and Rule of Law: Past, Present, and Future

to intervene in society at the beginning of the 20th century. For, as BRADLEY / EWING write, “the explosion of government in the 20th century did not wait for British legal practitioners and academics to first understand what administrative law was. The first textbooks on the subject appeared in the late 1920s. Initially, a limited approach was taken to the subject, confining it to delegated legislation and the exercise of judicial powers by administrative authorities. It was only later that a broader definition of Administrative Law was adopted, encompassing all the powers and duties of the Administration, as well as its judicial control” (BRADLEY / EWING) 44 . It should also be noted that, contrary to another idea that is still widespread today, in the United Kingdom, Administrative Law (which, as we have seen, became established throughout the 20th century), in addition to its substantive and procedural aspects, also has its own contentious dimension. One need only look at the definitions in the main textbooks to see how different authors attach extraordinary importance to the necessary connection between law and administrative justice, which, at first glance, one would not expect to see emphasised in a system known as “judicial administration”. Thus, for example, WADE / FORSYTH characterise Administrative Law as that “which deals with the control of governmental power”, stating that “the primary objective of Administrative Law is (...) to keep the powers of government within their legal limits, as well as to protect citizens against their abuses” 45 . And it is precisely with regard to the link between law and administrative justice that the British system, which did not go through a “difficult childhood”, will present problems of “asserting personality”, generating serious “internal conflicts” caused by the distance between the “reality” actually experienced and what is “said” about it (or, in other words, between the “body” and the “image of the body”), which also require psychoanalytic analysis. In fact – theoretically – the control of the Administration by the ordinary courts,

44 BRADLEY / EWING, Constitutional and Administrative Law, 13th ed., Longmann, London / New York, 2003, pp. 702-703. 45 WADE / FORSYTH, Administrative Law, 9th ed., Oxford University Press, Oxford, 2004, pp. 4-5.

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Vasco Pereira da Silva

integrated into an independent judiciary (conceived “without a shadow of sin”, either before the administrative power or before the legislative power), and in which the judge enjoys full powers over the Administration – as is the “image of the body” in the British system – should be the most appropriate solution for the effective functioning of Administrative Justice. However, in a system where the judge could (in theory) enjoy full powers to control the Administration, in practice, he will never be able to use them, due to a set of constraints and limitations that call into question the fullness and effectiveness of the system or, in other words, once again, the “body” does not match its “image”. Among these limits and restrictions, the following are particularly noteworthy: a) the existence of genuine ‘immunities’ for the Administration in relation to specific procedural means (such as ‘prerogative orders’), which could not be used against the Crown as such, making it very difficult to control the actions of the Government and other higher administrative bodies 46 ; b) the self-restraint of British judges with regard to the assessment of discretionary powers, since the courts tend to adopt an overly broad understanding of discretion (even when compared to the continental system), making judicial control less effective; b) the existence of different procedural rules for administrative disputes, despite jurisdictional unity, since most administrative decisions could not be reviewed through generic procedural means (appeal), but only through specific means (prerogative orders). All things considered, I believe it is imperative to reformulate DICEY’s statement, since in today’s United Kingdom, after all, there is always Administrative Law; administrative authorities with powers of coercive enforcement under the law (e.g. ‘administrative tribunals’); and Administrative Justice, since not only is there a specialised administrative court to judge 46 This fact only became widely known when, in the 1980s and 1990s, the Court of Justice of the European Union issued successive rulings against English courts that granted immunity from prosecution to ‘acts of the Crown’, particularly in matters of interim relief. Ironically, one might say that the courts of the United Kingdom were condemned by the European Court of Justice for not being sufficiently ‘British’ (e.g. the ‘Factortame’ case). See VASCO PEREIRA DA SILVA, ‘O Contencioso Administrativo no Divã da C.’ [Administrative Litigation before the Court], cit., pp. 147 and 148.

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Courts and Rule of Law: Past, Present, and Future

the Administration (“Administrative Court”), but also specific administrative procedural means (“judicial review”). Thus, returning to the courts and adopting a comparative perspective, it can be seen that today, both in France and in the United Kingdom, there are specialised courts for adjudicating administrative disputes, as well as specific procedural rules for these proceedings, the only difference between the two systems being whether or not there are higher courts in administrative matters. This means that the real question to be asked, from a comparative law perspective, is no longer whether a given country has a single or dual juris diction, but rather what the scope, level (first instance or second instance) and extent of specialisation in administrative matters is in that particular system. It can be seen that today, in most countries, there is always some level of specialisation in administrative matters, whether at first instance (e.g. United Kingdom), at second instance (e.g. federal courts in the USA or Brazil), or at all instances (e.g. France and Portugal) 47 . Adopting comparative law from a ‘group therapy’ perspective, it can be seen that analysis of the different models of court organisation in admin istrative matters leads to an almost paradoxical result (given their historical origins). This is because, as a rule, it is the countries with greater specialisation in administrative justice that have judges who are more knowledgeable and effective in dealing with administrative power, and are therefore able to be more effective in controlling the administration and protecting the rights of individuals. At this point, it must be acknowledged that the limited doctrinal treatment given to the powers of judges, despite their relevance in the framework of the doctrine of separation of powers, explains the ‘childhood traumas’ of the powers of the courts, both ‘common’ and ‘administrative’, 47 VASCO PEREIRA DA SILVA, ‘Rally in favour of Administrative Justice’, in ELPIS v-Law Review No 8/2023, ‘Right to Culture through Time’ (http://www.elpisnetwork.eu/elpis v-law-review-8-2024-law-and-culture/); VASCO PEREIRA DA SILVA “In Defence of the Autonomy of Administrative and Fiscal Jurisdiction”, in “In Defence of the Autonomy of Administrative and Fiscal Jurisdiction”, CEDIPRE – Centre for Public Law and Regulation Studies, Coimbra, 2018, p. 85.

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as well as the delay in the emergence of constitutional control of legislation, which only came about with the creation of constitutional courts in the early 20th century and only became relevant with the acquisition of effec tiveness by constitutional jurisprudence after the Second World War. And we return to the initial psychoanalytic problem, the difference between the body and the idea of the body. For although political and legal doctrine tends to ‘distract’ (or pretend to distract) from the true importance of judicial power, in practice, any ‘sorcerer’s apprentice’ or authoritarian political regime knows that it must control the courts to prevent its power from being scrutinised. Thus, it can be said that MONTESQUIEU’s doctrinal “disguise” of pretending that the courts have no power, even when motivated solely by tactical and non-substantive reasons, does not work, or, in other words, that “crime never pays.” On the contrary, if it is known that any political power has a natural tendency to abuse, there is an urgent need to control it through the adoption of an appropriate doctrine and practice of separation of powers, or to revive the traditional expressions of the French and American systems: “pouvoir de statuer” and “pouvoir d’empêcher” 48 , or “checks and balances”. To conclude this theoretical approach with a practical case study, let us now turn our attention to the attempts by current populist regimes to control the courts, limiting our analysis to five countries: Hungary, Poland, Italy, Mexico and the United States. Attempts to control the judiciary can take many forms, from the systematic appointment of new judges to replace the old ones (see the cases of Poland, Mexico and the US), to limitations on the intervention of the courts, namely through the progressive removal of powers of “judicial review” (see what is happening with “judicial review” in the US), to attempts to completely reform the judicial system, creating a new organisation of justice that “corrects” the problems of the previous one (see the cases of Italy and Mexico). These and other measures, taken alternatively or cumulatively, always have the same effect of controlling the judiciary to prevent it from controlling political power.

48 MONTESQUIEU, ‘De l’Esprit des L.’, cit., in MONTESQUIEU, ‘Oeuvres C.’, cit., p. 401.

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Courts and Rule of Law: Past, Present, and Future

And when they fail to achieve their goals on the first attempt, they repeat everything again, and again, and again, as many times as necessary to achieve their aims. Take, for example, the case of President Trump’s appointments of Supreme Court judges during his first term in the US, which are now having an impact again in his current second term. In Poland, a friend of mine, who was a judge in a high court and was forced to leave office due to a drastic and selective reduction in age limits, told me after Tusk’s victory in the last legislative elections that it would take at least a generation to rebuild a true judiciary after the interference of the previous populists (the PIS party). And now, with the victory of the far-right president, in a situation of (not very peaceful) coexistence between presidential and governmental power, I would even dare to say that “two generations will not be enough”. But “fate” also has its ironies, and sometimes “the spell backfires on the sorcerer.” Take the case of France, where Madame Marine Le Pen fell victim to the judicial reform she herself proposed (imposed?) to prevent anyone convicted (in the first instance) of corruption from running for re-election. She even wanted such a ban on re-election to be lifelong, but it was the other French political parties that rejected this proposal in Parliament. What a pity and what a shame for her...

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T HE R OLE OF C OURTS IN G UARANTEEING F UNDAMENTAL R IGHTS : C ONTEMPORARY I SSUES / T HE B RAZILIAN C ASE

Adriana Ancona de Faria

Professor Law Faculty University Getúlio Vargas, São Paulo SUI IURIS Member

Adriana Ancona de Faria

T HE R OLE OF C OURTS IN G UARANTEEING F UNDAMENTAL R IGHTS – C ONTEMPORARY I SSUES / T HE B RAZILIAN C ASE

Adriana Ancona de Faria 1

The Brazilian constitutional order clearly positions itself in favor of judicial review as a mechanism for the protection of fundamental rights, whether in relation to laws or normative acts, as well as actions or omissions by public authorities. With respect to fundamental rights, there is an explicit understanding that the Judiciary may exercise constitutional control over their observance, including within the sphere of private relations. It should also be emphasized that, under the Brazilian Constitution, fundamental rights are understood as entrenched clauses ( cláusulas pétreas ), meaning that they cannot be reduced or abolished – even by parliamentary majority or popular will – so long as the constitutional order established in 1988 remains in force. This implies that the final word on fundamental rights lies with the Brazilian Judiciary, which is expected to act in a counterma joritarian manner in their protection and may even review constitutional amendments that seek to undermine entrenched provisions. Another important aspect is that, in Brazil, constitutional review is not restricted to the centralized model exercised by the Federal Supreme Court ( Supremo Tribunal Federal – STF ). It may also be conducted by all judicial instances through diffuse constitutional review, whereby a court may recognize an individual right based on the unconstitutionality of norms, conduct, or omissions. While erga omnes effects are limited to centralized

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1 Ph.D. in Constitutional Law from the Pontifical Catholic University of São Paulo, Brazil.

The Role of Courts in Guaranteeing Fundamental Rights

review carried out by the STF, decisions rendered under diffuse review have inter partes effects, though they may ultimately reach the STF through appeal. In short, the Brazilian constitutional framework has conferred significant protagonism upon the courts in the defense of fundamental rights. Throughout the process of democratic consolidation and the implementation of the constitutional provisions established by the 1988 Constitution, the Brazilian Judiciary issued numerous decisions that contributed to the creation, expansion, or consolidation of fundamental rights. Frequently, due to legislative inertia in addressing complex issues, the Judiciary defined rights through constitutional interpretation, even in the absence of specific implementing legislation. This context includes a series of important and controversial judicial decisions – particularly by the STF – which nonetheless underscore the Judiciary’s central role in the protection of fundamental rights in Brazil. Among many possible examples, the following decisions stand out: 1. The STF classified homophobia and transphobia as crimes equivalent to racism, holding that Congress had committed an unconstitutional omission by failing to enact legislation criminalizing such conduct. 2 2. The recognition of the right to terminate pregnancy in cases involving anencephalic fetuses. 3 3. The STF ruled that the Public Prosecutor’s Office may initiate criminal proceedings in domestic violence cases without the victim’s formal representation, thereby protecting women living under conditions of coercion and vulnerability. 4 4. The STF established that the so-called “legitimate defense of honor” thesis is unconstitutional. 5 5. The STF upheld the constitutionality of racial affirmative action policies in admissions to public universities. 6

2 Direct Action of Unconstitutionality due to Omission, n°26 and Writ of Injuction n°4733, 2019.

3 Declaratory Action of Fundamental Precept n° 54, 2012. 4 Direct Action of Unconstitutionality n° 4424, 2012. 5 Declaratory Action of Fundamental Precept n º779, 2022. 6 Declaratory Action of Fundamental Precept n°186, 2012.

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Adriana Ancona de Faria

6. The STF validated legislation reserving racial quotas in public service entrance examinations across all three branches of the federal government. 7 7. The STF recognized the existence of an “Unconstitutional State of Affairs” within the Brazilian prison system. 8 When examining the importance of STF decisions in the protection of fundamental rights, it appears that its institutional prominence initially strengthened the democratic aspirations of the social rule-of-law state envi sioned by the 1988 Constitution. For approximately two decades, this perception may have held true. Over time, however, legislative omission combined with judicial protagonism began to generate distortions that proved problematic for a democratic project of society. The first major criticism of judicial activism in Brazil concerned the Judiciary’s increasing role in shaping public policies through judicial decisions, thereby encroaching upon the mandate of the Executive Branch. This debate was particularly marked in cases involving the rights to life and health. Judicial orders compelling the provision of medications outside the official list of the Unified Health System ( Sistema Único de Saúde – SUS ) revealed an imbalance among the branches of government and raised concerns about distributive inequality in the protection of the right to health. After extensive public debate, the Judiciary gradually adopted a more restrained approach, affording greater deference to elected officials, who in turn were compelled to act more consistently and effectively in implementing constitutionally mandated public policies. A second moment of tension and criticism emerged from judicial inter vention in electoral matters. During this period, courts began to define institutional arrangements in opposition to the Legislature, often through casuistic and inconsistent reasoning, and – more critically – by claiming final authority over political and representative choices for which they lacked constitutional competence. Faced with the Legislature’s prolonged failure to address much-needed political reform, the Judiciary chose to intervene in a fragmented and disordered

7 Declaratory Action of Constitutionality n° 41, 2017. 8 Declaratory Action of Fundamental Precept n° 347, 2023.

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