Javier Velasco
Analyzing the divergent trajectories of the Chilean and Colombian Constitutional Courts in the development of Reproductive Rights in their respective countries, this article highlights the relevance of indigenous influx in the outcome of legal translations.[1] This article states that despite the differences between both institutions, the public reception to their rulings shows how their role and institutional design are in tension with the expectations circulating in the public arena.
Considering the experience of both processes and the discussion in the workshop, this article advocates for listening to the frictional whispers of the socio-legal environment to produce more sustainable institutional designs. This article seeks to understand that legal translations and accountability mechanisms have to take into account the substantial criteria derived from the interactions of the informed and globalized communities that will be involved in the application of the rules.
I. The Garden of Forking Paths
Chile and Colombia faced parallel processes regarding the role of their Constitutional Courts in the development of reproductive rights during the last decades. This historical liaison is much broader than this specific milestone. Chile and Colombia are both post-colonial republics that became independent from the Spanish Empire at the beginning of the 19th century. Also, these countries share a Catholic heritage and the civil law system from the Conquistadors but interlaced with the legacy of instability and economic dependence derived from North American intervention after World War II.
Institutionally, both republics share the civil law system and moreover, their civil codes—remnants from the Bolivarian dream of a unified Hispanic America. Andrés Bello, one of the most important South American intellectuals of the 19th century, was born in Venezuela and made his academic career mostly in Chile, where he founded the University of Chile and wrote the Chilean Civil Code, subsequently adapted to several countries of the region. The Code is ruling almost intact to this day in diverse socio-legal environments such as Chile, Ecuador, and Colombia.
But the Chilean Constitution of 1980 and the Colombian Constitution of 1991 are completely different texts. As Professor Roberto Gargarella states, “A way to begin an examination of the content of the new Latin American Constitutions, is to ask what is the main question that they asked or, more directly, what is the main evil that they want to remedy.”[2] It is possible to state that it is precisely the purpose of the institutional reforms of the last decades that makes the difference between recent Chilean and Colombian processes.
The Chilean Constitution of 1980 was meant to work as a padlock to protect the authoritarian legacy of the dictatorship, sheltering the neoliberal regime against any possible disruption.[3] The Colombian Constitution of 1991 was created to cure the evil of corruption by expanding political participation. During the election of 1990 that resulted in the presidency of César Gaviria and following the social movement La Séptima Papeleta, Colombian society extra-officially voted for a Constituent Assembly, forcing the Supreme Court to recognize the preference and allow the election of the commissioners.[4]
While the Chilean Constitution was born as an authoritarian device to exclude popular participation, the development of Colombian Constitution can be seen as the translation of the expectations of a society increasingly eager to participate in the political process. Consequently, both socio-legal environments took forking paths, as their respective Constitutional Courts applied mechanisms for constitutional adjudication consistent with the original purposes of each country’s constitution which resulted in rulings that ignited opposite outcomes.
After abortion was banned in 1989, in one of the last movements of the Chilean dictatorship, lack of political commitment prevented the reversion of this authoritarian throwback until recent days. But on September 23, 2017, Congress promulgated Law 21.030 of the Ministry of Health, allowing abortion in three cases, and triggering an immediate reaction from right-wing politicians and interest groups, which challenged the law’s constitutionality in the Constitutional Court. Even though the Constitutional Court upheld the new law, the court extended the concept of “Conscientious Objection”[5] to allow not only individuals but health institutions to refuse practicing abortions[6], opening the gate to a massive withdrawal of conservative providers.[7]
In the Colombian case, the first time the Constitutional Court ruled on abortion was in 2006, after a tutela (direct constitutional challenge by a citizen) presented by attorney and feminist activist Mónica Roa, on behalf of Martha Solay, arguing that unsafe abortion was a health crisis in Colombia. The Court allowed the decriminalization of abortion in three cases,[8] defending its decision from the constant pressure from conservative groups. On May 24th, 2017, the Court ruled against a tutela seeking to narrow abortion rights by introducing a maximum amount of days to perform the interruption, which reinforced reproductive rights in the country.[9]
The effects of both rulings could be seen as opposites: While the Colombian Court served as a catalyzer of social demands, the Chilean served as a handbrake for socio-legal improvement. In this way, we can see that the institutional translation of the European device called “Constitutional Court” produced two different organs due the influx of the native socio-legal environment. The outcomes are directly linked to the mechanisms of constitutional adjudication of both Courts: The Colombian system allows citizens to present tutelas directly to the Court to challenge the constitutionality of norms,[10] and the Court’s rulings have erga omnes effect. The Chilean system requires a complicated three-stage process commonly reserved to those actors with the unique conditions to litigate at a Constitutional level.[11]
II. The Pursuer
The Chilean Constitution was created to ensure the survival of the institutional legacy of the military regime. Consequently, the mechanism of constitutional adjudication of its Constitutional Court is especially deterrent of constitutional litigation. Conversely, the Colombian mechanism of adjudication is much more convenient to the citizens, following the orientation of its Constitution. This difference highlights the relevance of the domestic legal to design as expressed by a particular institution.
But what brings both courts together is the negative reception of their performance, which takes us to the second consideration of this article. While in Chile the critics surrounding the Constitutional Court focus on its role as a gatekeeper that takes a stand for conservative minorities, in Colombia the apparent problem is that the Court has pushed for social reforms in a way that out-performed the rest of the system.
Regarding the last rulings of the Chilean Court, Atria and Salgado state that: “A Constitutional Court is justified, according to Kelsen, precisely when it does not have substantial competence (or these competences were marginal). If it has substantial competence, Kelsen says, it will be an organ whose power will be ‘simply unbearable’”. Moreover, Atria and Salgado posits that “This ‘unbearable power’ would accomplish the function of augmenting the strength of the right wing, by ensuring that whatever the right wing loses in the two chambers of Congress, it can be won in the third”[12]
During the Robbins Collection’s symposium, Former Justice of the Civil Chamber of the Supreme Court of Colombia Javier Tamayo stated that the Colombian Court had become not just independent, but sovereign, being practically unaccountable. Justice Tamayo indicated that the process that transformed the Colombian Constitutional Court into a potential threat to the Constitutional order is linked to the practice of unlimited judicial activism. He stated that it can also be related to the decision of the Court to make its ratio decidendi universally binding, but also to the excessive use of habeas corpus in order to regulate the provision of social rights, and the establishment of irreplaceable constitutional clauses under the control of the Court. Moreover, the politicization of the integration of the Court seems to be a shared issue between Colombian and Chile.
Both opinions deal with a common challenge: how to define the policy criteria to hold accountable a Constitutional Court in the context of a civil law country. Contrary to the role of judges in common law jurisdictions, civil law judges just apply rules previously developed in Congress to concrete cases. Both legally-translated institutions (the Constitutional Courts) introduce a disruption in their civil law environments, challenging the roles of judges and the historic boundaries derived from separation of powers in Continental system.
Chile and Colombia are facing the challenge of redefining the role of Constitutional Courts in a civil law system, in a scenario with overlapping tensions: between conservatism and progressivism, localism and globalism, and also, by the often-tenuous limits between civil and common law systems[13]. Facing the opportunity to make an institutional upgrade, it is rational to expect that policymakers and political activists take into account the resources they receive from external sources, even if they come from a diverse legal environment or challenge the traditional institutional designs, as the right-wing did in Chile and progressivism in Colombia.
Following the rhythm of socio-legal interactions, institutional environments have to adapt to shifting expectations. Chile and Colombia need to regulate their Constitutional Courts in different ways but pointing to a common goal: to make them accountable and representative of the interests of the majority of the population, understanding that judicial activism is already an incorporated resource for socio-legal transformations. To imagine accountability considering these objectives, from scratch or relapsing into legal translations, Colombian and Chilean policymakers have to take into account the lessons from the interaction between their Courts and citizens.
Colombian and Chilean cases lead us to suggest that the necessary transformations in both Constitutional Courts are in order to regulate activism and reinforce independence. Both actions would de-politicize the composition of the Tribunals and restrict their substantial competences, avoiding their transformation into “third chambers” of Congress, and regulating the binding force of their ratio decidendi.
Facing an increasingly globalized circulation of cultural devices that includes institutional expectations, a flexible approach seems to be more advisable than a rigid defense of the margins of the civil and common law systems. Allowing constitutional litigation through Constitutional Courts in a globalized socio-legal environment seems to necessarily disrupt the margins of civil and common law systems to some extent. This institutional operation could be seen as nothing more than a consequence of a process of globalization in development, which calls into question the sustainability of any impervious environment.
Finally, an alternative approach to the expectation of popular intervention in civil law countries is to improve mechanisms of population-led legislative initiatives. This solution could be more suitable in civil law environments that are less receptive to foreign interactions, but it does not ensure that the Constitutional Court ceases to be seen as a resource for enforce fundamental rights. What seems to be truly relevant when facing the growing expectation of popular participation is to avoid at all costs that the protection of traditional boundaries interferes in the receptivity of social demands.
As the Chilean and Colombian experiences surrounding the development of reproductive rights has shown, these public interest issues are in a continuous dispute. The struggle for reproductive rights, as part of the broad demand for social rights in these evolving societies, is far from over. It seems that the future depends on our collective ability to integrate the evolution of our socio-legal communities and collective expectations into the design of our future institutions.
[1] See Langer, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45.1 HARV. INT’L L.J., (2004)
[2] Gargarella, El Nuevo Constitucionalismo Latinoamericano: Promesas e interrogantes, CONICET/CMI 9 (2009). (Translation is responsibility of the author of this article).
[3] See Atria, La Constitución Tramposa, LOM (2013)
[4] See Garzón, La génesis de la Constitución Política de Colombia de 1991 a la luz de la discusión sobre el Mito Político, 29:1 DESAFÍOS, (2017).
[5] Current regulation, incorporated in the Sanitary Code states that:
“Article 119. With the will of the woman, the interruption of pregnancy must be authorized by a surgeon, when:
- The women’s life is in danger, in a way that the interruption of pregnancy is a threat to his life.
- The embryo or fetus has a congenital sickness, obtained or genetical, not-compatible with independent extrauterine life, in which case is lethal.
- Is the result of a rape, if there are no more than twelve weeks between of gestation. In case of girls with 14 years old or less, the interruption of pregnancy could be conducted if there are no more than fourteen weeks of gestation.” (Translation is responsibility of the author of this article.)
[6] Current article 119b states that: “Conscientious objection is personal and may be invoked by an institution” (Translation is responsibility of the author of this article). See Constitutional Court of Chile. Sentence 3729/2017 (2017), available Online.
[7] Approximately the 35% of the doctors declared being an objector. See “La dispar postura de los médicos frente al aborto y la objeción de consciencia,” LA TERCERA, (2018), available Online.
[8] Current regulation states that “(…) the crime of abortion is not committed when with the will of the women, the interruption of pregnancy happen under the following circumstances: (I) When the continuation of pregnancy constitutes a danger for the life or physical or mental health of the woman, certified by a doctor; (II) When there is an important malformation of the fetus that made their existence unviable, certified by a doctor; and (III) When the pregnancy was the result of a conduct legally denounced, consistent in penetration or sexual acts without consent, abusive or of artificial insemination or fertilized egg transplant without consent, or incest” (Translation is responsibility of the author of this article). See Constitutional Court of Colombia, Sentence C-355/06 (2006), available Online.
[9] See El derecho al aborto sigue firme en Colombia, EL ESPECTADOR, (2017), available Online.
[10] See Nagle, Evolution of the Colombian Judiciary and the Constitutional Court, INDIANA INTERNATIONAL & COMPARATIVE LAW, (1995).
[11] See Figueroa, Constitutional Review in Chile Revisited: A Revolution in the Making, 51 DUQ. L. REV., (2013).
[12] See Atria and Salgado, El Tribunal Constitucional desatado (1): Un poder insoportable, EL MOSTRADOR, (2018) available Online (Translation is responsibility of the author of this article).
[13] See Langer (2004).