Do constitutions matter? Essays on the impact of constitutional provisions on de facto judicial independence in Latin American countries

How do constitutions affect the degree of independence courts and judges exercise? More specifically, do constitutional guarantees of judicial independence protect courts and judges against usurpations of their powers? Conventional wisdom holds that constitutional arrangements are automatically enforced, denoting that formal institutions, such as written constitutions, can shape the way others behave (Carey, 2000). This study examines the degree to which the level of judicial independence enjoyed by a country's judiciary is a function of constitutional provisions intended to safeguard its independence. This hypothesis is tested on 19 countries in Latin America. The findings show that constitutional provisions related to judicial independence affect courts' de facto level of independence. More specifically, I argue that nine provisions of judicial independence---the power of judicial review, length of judgeship, separation of power, selection and removal procedures, fiscal autonomy, qualifications, number of justices in the higher courts, and accessibility to the courts---works in unison to create independent courts. Moreover, the findings suggest that to create fully independent courts, two provisions---accessibility and removal procedures---are indispensible in the constitution. This study is intended not only to offer a general model for understanding judicial independence in developing countries but also to help explain under what conditions constitutional provisions are observed and enforced.