The Rule of the Courts

Vasco Pereira da Silva

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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