INTRODUCTION

The purpose of this chapter is to investigate how military dictatorships that concentrate formerly separated and shared powers affect the activity of regular courts that survive from a prior, formally constitutional regime0. Specifically, I explore two dictatorships, the Argentine (1976–1983) and the Chilean (1973–1990), to examine whether courts can conceivably uphold rights and liberties, as warranted by the constitutional definition of their powers, out of context; that is, once dictatorship has displaced the regular constitutional-institutional framework. This study thus points to the limits on courts in authoritarian regimes and to the limits of what might be called “partial constitutionalism” – the idea that a judiciary, as structured by a given constitution, ought to uphold and defend another part of the constitution, its guarantees of rights, even after the core institutions of that constitution – elected legislative and executive institutions – have been suppressed and displaced by an autocratic centralization of power.

This formulation may appear peculiar, but it is noteworthy that such expectations regarding the potentialities of courts in authoritarian regimes are implicit in many critical accounts of the judiciary under dictatorship. Such expectations are even to be found in the final official reports issued by the truth commissions formed in the aftermath of military rule to clarify the worst violations of rights in Argentina and Chile, the Comisión Nacional sobre la Desaparición de Personas (hereafter CONADEP) and the Comisión Nacional de Verdad y Reconciliación's (hereafter Comisión Rettig), respectively.