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The Bernard and Audre Rapoport Center for Human Rights and Justice

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Roberto Gargarella: Judicial Impact on the Democratic Process


By Kate Hull, Rapoport Center Undergraduate Intern, Fall 2008

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In a unique opportunity where UT law students are able to meet directly with human rights law practitioners and scholars, guest speaker Roberto Gargarella meets with Bridgett Mayeux and the other Human Rights Scholars.

During the Rapoport Center Human Rights Happy Hour on October 20th, Roberto Gargarella described possible ways in which the judiciary can help to further democratic values through inclusive lawmaking. Gargarella is a professor of constitutional theory and political philosophy at the Universidad de Buenos Aires and the Universidad Torcuato Di Tella in Argentina.

Gargarella has authored or edited more than 25 books in English and Spanish on constitutional theory, political philosophy, and democracy, often focusing on economic and social rights. In recent years, his work has focused on the law's relationship to inequality.

“For the past two years, I have been working on issues at the crossroad between criminal justice and social justice,” Gargarella said. “The main question is whether one can use force for the enforcement of legal rules in very unequal societies when one has the suspicion that the law begins to reflect the interests of few.”

Gargarella presented a draft of a paper considering the democratic foundations of law and seeking a greater understanding of the judiciary's appropriate role in the democratic process. His theoretical approach is grounded in the recent legal history of amnesty laws in Latin America in the context of gross human rights violations.

He believes that the legitimacy of law is proportionate to the degree of inclusive and collective participation by groups of people who are subject to the law. Gargarella asserts that courts owe more deference to laws formed by inclusive and communicative democratic process than to laws that are made without public consideration and full popular participation.

“The only law that can be justified and that can be considered valid is the law that is the product of an inclusive and collective right. In unequal societies, those [laws which] are too imperfect because of the [lack] of social inclusion should make us suspicious of the law in general,” he said.

In his paper, Gargarella examines two specific cases, Barrios Altos [Inter-American Court of Human Rights] and Simón [Argentine Supreme Court] . B oth analyze amnesty laws preventing the prosecution of massive human rights violations.

The Barrios Altos case involved a massacre in Peru by a death squad affiliated with former President Alberto Fujimori's government. Trials concerning the massacre were put on hold when an amnesty law was passed. But in 2001, the Inter-American Court ruled that the amnesty law was invalid because it violated various rights enshrined in the American Convention on Human Rights, namely Articles 8 (right to a fair trial) and 25 (judicial protection).

The Simón case has to do with the treatment of amnesty laws in Argentina. After the country's transition to democracy in 1983, the Argentine Congress declared a military self-amnesty law void. Within a couple of years, however, the government decreed another pair of amnesty laws, due in part to pressure from the military. Initially, these laws were considered constitutional. But the Court was able to revisit its validity during a case involving police officer Simón, who killed José Liborio Poblete and his wife Marta Hlaczik and kidnapped their daughter, claiming her as his own. The lower court decided that such instances of torture to a minor were not protected under the amnesty law and Simón was tried. In upholding the conviction, the Argentine Supreme Court invalidated the amnesty laws entirely.

“How are we, as a society, supposed to deal with these dramatic cases involving gross violations of human rights? In these extreme examples of back-and-fourth rulings [referring to Simón ], the Court should not be specifically following whatever the political power is doing, they should help us to go back to certain aspects and help us as a society to discuss more carefully those issues, instead of going from one side to another,” he said. “That is not respect for democratic rule.”

According to Gargarella, judges act under a very strong assumption of validity when a law is passed by a legislature and receives a majority vote. The presumption of validity by the courts further marginalizes minority voices that were not heard or not given proper representation during the law-making process.

“If the critical voices are not heard because the majority prevented [the minority] from criticizing the law, this affects its validity,” he said.

Download Gargarella's paper: "The Philosophy of Punishment, Human Rights, and International Criminal Law" (pdf)

Listen to audio of Gargarella's lecture (Windows Media Player)