Public Interest Litigation: a Form of Popular Legislative Initiative?

The widespread crisis of representative democracy seems to have led to at least two kind of innovations aiming at bringing back the citizens to the center of the decision-making process. On the one hand, constitutional and legislative reforms have been approved in many contemporary legal systems in order to introduce or strengthen some of the traditional direct democracy institutions such as referendum, petition and popular legislative initiative. On the other hand, some countries allowed people to find new, successful, ways of exerting their involvement in the democratic process. These are the systems that guarantee the right of each individual to initiate the process of judicial review of legislation (and sometimes even to file constitutional complaints against legislative omissions) in the form of actio popularis, that is regardless of their specific legal interest in the case in question. This peculiar way of accessing constitutional review can be found all over the world, both in common law and civil law countries, and it is often known as public interest litigation because the claimant is seen as the trustee of the public good. The paper intends to demonstrate that these individual complaints tend to serve as substitutes for popular legislative initiative, thus contributing to the realization of the so-called juridical democracy. Courts deciding such constitutional controversies usually prod the lawmakers into fulfilling their obligations, but they also tend to act as legislative bodies, especially when it comes to highly controversial issues, such as, for example, abortion, death penalty, gay marriage, euthanasia. The importance of this form of participatory democracy is particularly evident in India and in many Latin American systems where judicial activism seems to be a reaction to hung parliaments, weak coalition governments and, more generally, to the people’s lack of trust in their representatives.