2008-07-10
(In)dependência do Tribunal Constitucional analisada por académicos
Judicial Independence and Party Politics in the Kelsenian Constitutional Courts:
The Case of Portugal
Autores:
The Case of Portugal
Autores:
SOFIA AMARAL GARCIA
University of Bologna - Faculty of Economics
NUNO GAROUPA
University of Illinois College of Law; IMDEA Ciencias Sociales; University of Manchester - School of Law; Centre for Economic Policy Research (CEPR)
VERONICA GREMBI
Facoltà di Economia, Università Cattolica di Milano; Istituto di Economia e Finanza, Facoltà di Giurisprudenza, University of Rome La Sapienza
University of Bologna - Faculty of Economics
NUNO GAROUPA
University of Illinois College of Law; IMDEA Ciencias Sociales; University of Manchester - School of Law; Centre for Economic Policy Research (CEPR)
VERONICA GREMBI
Facoltà di Economia, Università Cattolica di Milano; Istituto di Economia e Finanza, Facoltà di Giurisprudenza, University of Rome La Sapienza
Este estudo académico encontra-se publicado aqui, no Social Science Research Network.
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As conclusões, algo alarmantes, na medida em que revelam uma vitória da partidoracia sobre o Estado de Direito, são as seguintes:
This paper presents an empirical study about the Portuguese constitutional court with respect to judicial independence and judicial preventive constitutional review. We analyzed individual votes by constitutional judges from 1983 to 2007.
Our results indicate that party politics plays an important role in the Portuguese constitutional court. However, other variables also matter. The empirical evidence also suggests that peer pressure is very relevant for unanimous voting, with around 30% of the decisions concerning preventive review being unanimous.
We have shown that there is a strong association between being affiliated with a left-wing party(socialists and communists) and voting for unconstitutionality, whereas the association between the right-wing parties (conservatives and Christian-democrats) and voting for constitutionality is weak. These results are confirmed when we look at voting according to party interests, legislation that has also been endorsed by the party with which the constitutional judge is suppose to be affiliated.
The power in the government, of the constitutional judge’s party, seems to play an important role in both a judge’s decision to vote for constitutionality, and in his or her vote according to party interests. Our interpretation is that, not only does party affiliation matter in terms of aligned preferences, but some opportunism takes place. That is, party politics is more important when the stakes are higher. Therefore, we conclude that party conformity takes place frequently due to judicial preferences (albeit, ideologically biased), and occasionally due to direct political pressure (not necessarily active pressure).
We have also discovered that some other controlled variables are relevant in predicting judicial behavior.
Therefore, party politics and peer pressure are not the only relevant dimensions in the Portuguese Constitutional Court. For example, specific laws on labor regulation, or on social policy, seem to have a marginal impact on judicial behavior (albeit with different levels of robustness). It is also clear from the empirical results that the 1997 reform had no statistically significant effect on the voting behavior of judges. Nevertheless, data from more years to have enough data to settle this question in more satisfactory way.
Etiquetas: Acórdão do Tribunal Constitucional, Nuno Garoupa, Sofia Amaral Garcia, Veronica Grembi
