The Jurisprudence of the Supreme Court of Uruguay

Maria Paula Garat Delgado and Anna Luisa Walter de Santana. Constitutional Reasoning in Latin America and the Caribbean. Oxford: Hart Publishing, 2024. 328-340.

The Indictment of Uruguay's System of Constitutional Review

This chapter provides a detailed examination of the jurisprudence and constitutional role of Uruguay’s Supreme Court, particularly its approach to constitutional review. The dramatic findings should encourage Uruguay to rethink its Constitutional and administrative legal system. One of the weaknesses Dr. Garat and Dr. Walter de Santana identified in the Uruguayan Supreme Court system is its procedural rigidity, particularly regarding standing requirements. These strict procedural rules often limit access to constitutional review, as claimants must demonstrate a direct, personal interest to bring cases before the Court. This restrictiveness has led to several critical constitutional issues being dismissed on procedural grounds without substantive judicial review.

Additionally, the Court has historically maintained a presumption of constitutionality, deferring significantly to the legislative branch, which has stifled its ability to challenge potentially unconstitutional laws. This cautious approach, coupled with the limited scope of its decisions, means that the Court's rulings do not have broader, binding effects beyond the specific case at hand, further limiting its impact on systemic legal and human rights issues. These procedural and institutional limitations hinder the Court's potential to be a more dynamic actor in advancing human rights and constitutional protections.

This should, I argue, be a “wake-up” call to Uruguay that formalism, legalism, and procedural rigidity, as well as outdated conceptions of natural law, place Uruguay at risk of becoming a Constitutional laggard in protecting human rights in the region. Let us examine whether this chapter supports or undermines my view and perhaps develop solutions to modernize Uruguayan Constitutional law.

The Content in Uruguayan Law and History

The Court’s political, institutional, and legal context is essential to understanding its cautious and restrained judicial philosophy. Since Uruguay’s Constitution, originally enacted in 1967 and subsequently modified, grants the Supreme Court exclusive authority to declare laws unconstitutional, the Court plays a critical role in maintaining the constitutional balance. The Court’s historical role has been marked by a presumption of constitutionality, which has only recently shifted toward a more assertive position in reviewing legislation.

The authors begin by situating the Supreme Court within the broader legal and political culture of Uruguay. The Constitution is highly respected, reflecting the State’s democratic aspirations and human rights commitments. Despite its formal authority to review laws, the Supreme Court has traditionally adopted a nonactivist posture. It has relied heavily on a presumption that laws passed by the legislature are constitutional, a premise reinforced through many of the Court’s judgments. This judicial self-restraint is common in jurisdictions where courts balance respect for legislative authority with their constitutional duties. However, a significant shift began around 2010, when the Court began to strike down laws more frequently, indicating a more robust judicial review function.

The chapter explores how procedural rules have further limited the Court’s willingness to engage in broad constitutional review. The Court’s restrictive standing requirements often prevent claimants from having their cases heard unless they can demonstrate a direct, personal interest. These procedural hurdles have served as a barrier to addressing broader constitutional questions, with several cases dismissed on standing grounds without ever reaching the substantive issues at stake.

Notwithstanding these limitations, the Court has maintained its independence, especially in the post-dictatorship period. The restoration of democracy in 1985 marked a return to judicial independence, as the Supreme Court was reconstituted following the illegitimate appointments made during the military regime. This independence has been safeguarded despite political pressures, particularly regarding appointing judges. Although appointing Supreme Court justices involves political negotiation, the judges have generally remained impartial once on the bench.

Formalism over Human Rights

The authors note that while the Court has traditionally relied on strictly legal and technical arguments, excluding political considerations, there has been an evolution in its constitutional reasoning over time. While Uruguayan Constitutional decisions include far fewer references to international legal standards than the surrounding Constitutional system, that has started to change. Since 2013, the Court has made more frequent references to international treaties and jurisprudence from bodies such as the Inter-American Court of Human Rights. This shift has been particularly noticeable in the wake of Uruguay’s adverse decision by the Inter-American Court in the Gelman v. Uruguay case, which dealt with crimes committed during the country’s military dictatorship.

Several legal principles have been central to the Supreme Court’s constitutional reasoning. The presumption of constitutionality remains a key aspect of its jurisprudence, with the Court often deferring to the legislature. However, the authors identify a notable change beginning in 2010, when the Court declared laws unconstitutional in 12 of the 21 cases reviewed, marking a significant departure from its prior deference. Another key principle is proportionality, which the Court has increasingly employed since 2015 to assess whether legislative actions that limit fundamental rights are justified. Equality has also played a crucial role in the Court’s decisions, particularly in cases where distinctions made by laws needed to be evaluated for their fairness and justifiability.

The chapter draws comparisons between Uruguay’s Supreme Court and other Latin American courts. Unlike the Constitutional Court of Colombia, known for its activism, the Uruguayan Supreme Court has been far more restrained. The authors suggest that this restraint is rooted in the Court’s adherence to formal legal rules and the procedural requirements of constitutional adjudication.

The chapter discusses several ongoing challenges and critiques of the Court’s jurisprudence. The Court’s continued deference to the legislature, coupled with its strict standing requirements, has prevented it from engaging in broader constitutional issues. In some cases, the Court’s reluctance to adopt contemporary interpretive tools, such as the proportionality test, has limited its ability to address complex legal and human rights questions. However, the authors acknowledge that there has been progress, especially in incorporating international human rights norms and the principle of proportionality.

The chapter highlights several key concepts that have shaped the Court’s constitutional reasoning. These include the rule of law, which the Court often links to the principle of legality; proportionality, which has been used more frequently in recent years; equality, particularly in evaluating legislative distinctions; and procedural guarantees related to due process. The authors argue that these concepts have evolved within the Court’s jurisprudence, reflecting a broader trend toward constitutionalization and the increasing influence of international law in Uruguay’s legal system.

A Gradual Shift and Possible Trajectory for Progress

In sum, the chapter thoroughly analyzes Uruguay’s Supreme Court, depicting an institution that has, at best, only gradually shifted from a restrained, deferential body to one more willing to engage with constitutional and human rights issues. The Court’s jurisprudence remains marked by caution and procedural limitations. Still, its evolving reliance on international human rights law and the principle of proportionality suggests a promising possible trajectory toward a more assertive judicial role in safeguarding fundamental rights.

Paula Garat Egresados de Facultad de Derecho UDELAR CIDH_IACHR Corte Interamericana de Derechos Humanos Corte IDH