Álvaro Pereira
On December 2017, the Robbins Collection hosted a symposium on “Judicial Independence and Accountability in Latin America.” As a reaction to the thoughtful discussions that it propitiated, in this short text I reflect on the Colombian judiciary, tracing the origins of its weaknesses and strengths. I find that, through history and due to identifiable circumstances, the judiciary has been perceived as neither independent nor accountable.
The 1991 Colombian Constitution introduced legal innovations to change this pattern–notably, a legal action specifically tailored to protect constitutional rights (the tutela), and a Constitutional Court. Although both successfully increased the protection of rights, particularly for those in vulnerable communities, judges have struggled to find the borders of their powers. Tensions among high courts have debilitated public trust, as well as their relation with the executive and legislative branch. Still, an agreement between the leaders of the judiciary could bring an unprecedented improvement in the rule of law, which should be enough to remain hopeful in the future of Colombian democracy.
- From the wars of independence to the Republic
In Latin America, the successful wars of independence left leaders with the major task of deciding how to control and organize power. It is not a minor anecdote. After centuries of colonization, suddenly, one day, the rule of the colonizer was no longer binding; a situation that could easily lead to greater instability or even chaos.[1] Simón Bolivar and the other founding fathers of what is today’s Republic of Colombia decided to address this concern. [2] Inspired by the French and North American revolutions, they build the grounds for a new nation over one fundamental principle: sovereignty emanates from the people and never from one person.[3] The question, then, was how should the people exercise such power.
The founding fathers had at least two difficulties to address this question. The first is their lack of experience in self-government.[4] The second is the need to resist the Spanish efforts to regain control over territories and to prevent the spread of separatist movements. Consequently, they adopted a system of ‘legislative supremacy,’ under which judges have restricted powers.[5] In fact, the organization of the judiciary was a secondary concern among the main debates on whether to establish a federal state or a unitary republic. Despite the various institutional arrangements implemented in different Constitutions through the 19th Century, in practice, the executive branch frequently exercised legislative powers, invoking a state of emergency.[6] The tradition of a strong executive and a weak judiciary emerged.
Since the first years of independence, the executive enjoyed wide popular support, due to the fact that it was led by the heroes that granted independence, some of which fought to defend their victory from separatist movements and repeal further attempts of invasion. In contrast, the new judiciary inherited a generalized popular distrust. The institutions in charge of resolving conflicts in the colonial period were corrupt, frequently favoring the interests of the Crown or local elites.[7] As a result, the establishment of a weak judicial branch did not receive significant resistance.
After multiple failed attempts of a lasting and unifying democratic agreement, the two major political forces enacted a Constitution in 1886. The instrument reaffirmed the tradition of a weak judiciary and a strong executive. The Supreme Court was neither independent nor accountable. The President had the authority to appoint judges from a list submitted by the Supreme Court, which already represented the two main political parties.[8] Hence, only relevant members of the parties were eligible. Judges were entrusted to advance a restricted interpretation of the rules, limiting the grounds for accountability and leaving it as a political matter, instead of a legal one.
The 1886 Constitution succeeded in maintaining unity and concluding a century of legal instability. Notwithstanding the multiple amendments it was subjected to, the system to appoint judges of the Supreme Court remained, as did the dominant view of restricted judicial interpretative powers.
- The Constitution of 1991: a new legal action, a new Court
In the 100th year anniversary of the Constitution, the judiciary suffered a direct attack from violent political movements. It is still an open wound for Colombia society. After the militias of the self-entitled M-19 took over the Supreme Court, the government ordered the military forces to reclaim control.[9] The country witnessed on live television a war scene, with tanks entering the building to force the rebels out. All judges were killed that night. In multiple cases, lack of evidence prevented the determination of liabilities.[10]
This incident enhanced a consensus on the need of profound reforms. In a movement led by university students, Colombian society expressed its consent to establish a new constitution, by approving a proposal included in the Congressional elections of 1990. A pluralistic Commission was established, integrating the two traditional political parties, the recently disarmed urban guerrilla, and representatives of the civil society. For the first time in the history of the country, representatives of indigenous communities were also integrated.
The Constitution of 1991 introduced significant changes to the organization of the judiciary. Two of those changes had a direct impact on judicial independence and accountability: a new legal action to enforce fundamental constitutional rights, known as tutela; and a Constitutional Court, separate from the Supreme Court and other high judicial bodies.
- Tutela
The incorporation of tutela was inspired by the experience of other Latin American countries, such as Mexico, where a legal action (amparo) allowed the immediate protection of fundamental constitutional rights with reduced legal requirements.[11] It was designed and quickly became the chief instrument to guarantee and protect constitutional rights.[12] Yet, some unintended or miscalculated impacts followed.
Article 86 of the Constitution provides the agreed provision in the following terms:
Every individual may claim… the immediate protection of his/her fundamental constitutional rights when the individual fears the latter may be jeopardized or threatened by the action or omission of any public authority…[13]
Given the broad scope of protection of tutela and that virtually any judge could decide on a request of that nature, a list of fundamental rights was included in Chapter 1 of the Constitution. Most of these rights have a clear mandate, such as the right to equality or freedom. However, the protection of other rights, such as labor or health, proved to be challenging. Should judges order the executive branch to take specific measures to ensure that citizens are employed and healthy? If they did, how should they do it? If they did not, would that be in violation of the Constitution?
Guided by the legal opinion of the newly created Constitutional Court, judges adopted a broad interpretation that supported detailed orders to the executive. According to the Court, the Constitution also imposes the obligation to protect non-fundamental rights in situations where there is an intimate connection between the right that is being threatened and a fundamental right.[14] In that sense, the state is potentially liable for failing to protect rights that are not classified as fundamental in the Constitution.
This interpretation is controversial. On one hand, it allows for the protection and judicial development of the content and scope of crucial rights—such as the right to health, which leads to saving thousands of lives and increasing the protection of individuals in a situation of vulnerability.[15] On the other hand, it generates new chains of obligations to the executive, which affects the budget, wealth distribution and eventually, the state’s ability to protect other rights of comparable importance.[16]
Tutela proved to be an instrument that increased judicial powers and independence. It expanded judges’ interpretative capacity, in open contrast with the existing tradition of a weak judiciary. It also authorized judges to review actions or omissions of the executive towards citizens, and order courses of action when there is a proved violation of fundamental rights.
Paradoxically, tutela might have also reduced judges’ accountability. The wide interpretative powers make it harder to determine when judges act ultra vires.[17] These changes had the potential of creating legal instability which in itself justifies the introduction of a Constitutional Court entrusted with the responsibility of unifying constitutional interpretation.
- The Constitutional Court
The creation of a Constitutional Court was mainly intended to assure the supremacy of the Constitution, which was not a prevalent aspect of Colombian legal tradition. The Court was granted specific and unprecedented powers.[18] It is entitled to determine the constitutionality of statutes before they are approved; and to review the constitutionality of binding legislation or regulation, either a fragment or the entire text, by request of any citizen. It also freely selects the revision of tutelas that have been decided by other judicial bodies.
The Court has taken relevant steps to strengthen its powers. During its early years of operation, the Court issued paradigmatic decisions that detailed the content of fundamental rights and the scope of protection granted by tutela. These decisions provided guidance to other judges, whose workload increased as more and more citizens made use of tutela. The Court also decided on its own powers—it affirmed its authority of judicial review and adopted controversial positions, expanding the scope of rights.[19]
The powers attributed to the Court are justified in the need for a unified understanding of the Constitution and an expanded protection of constitutional rights. However, in exercising them, the Court engaged in two polemic practices. The first is the revision of tutela petitions against decisions of other high courts. The second is the voluntary publication of press notes indicating the Court’s decision, before the full text was approved. [20]
According to the cited article 86 of the Constitution, tutela allows citizens to request the protection of their fundamental rights when they fear that said rights “may be jeopardized or threatened by the action or omission of any public authority.” Consequently, citizens can use tutela against acts or omissions of judges. In this context, tutela proved to be particularly useful to prevent violations of due process and accelerate proceedings.[21] Ironically, it also created an opportunity to further postpone the definite solution of legal disputes by allowing the parties to challenge decisions taken within the course of a judicial process. This issue became apparent and generated a heated ongoing controversy, when the Constitutional Court selected and reviewed a tutela against a decision of the Supreme Court.
A former employee of the Central Bank brought a legal action against it, requesting compensation for violation of labor rights that were not recognized when he was fired. The citizen’s claims succeeded in the first two instances, but the Supreme Court ruled in favor of the Bank. In turn, the Constitutional Court selected the case and ordered the Supreme Court to issue a new decision protecting the constitutional rights of the citizen. Despite the order, the Supreme Court confirmed its original decision, leaving the citizen with an unenforceable order.
The Constitutional Court has increased its efforts in clarifying and restricting the circumstances in which a judicial decision can be challenged.[22] However, it reserved its capacity to review Supreme Court decisions, which are supposed to be conclusive within the scope of its jurisdiction. The debate, known as choque de trenes, damaged the perception of the judiciary. Especially because the Supreme Court insists that tutelas ought to be decided by them within the judicial process, and not by the Constitutional Court, after the process concludes.[23] The debate was even acknowledged by the Interamerican Commission of Human Rights, which expressed high concern about the negative impact of this situation on the protection of constitutional rights.[24]
The Constitutional Court also adopted the controversial practice of issuing press communications of the decision before it was written. However, the actual decision, where the arguments are discussed, is usually released weeks or even months after, leading to a general discontent and distrust in the Court’s impartiality.[25]
Conclusion
As with most Latin American democracies, Colombia’s judiciary has not been perceived as independent or accountable. It inherited the popular distrust of colonial institutions for dispute resolution, which were designed and operated to protect the interests of the colonizers. After a century of strong executive powers and the influence of political parties in the nomination of judges of high courts, the 1991 Constitution provided legal innovations empowering both citizens and the judiciary.
Overall, the Constitution succeeded in increasing the protection of fundamental rights and improving the perception of judges, who continuously review and decide on sensitive requests. However, the chief innovation for the protection of fundamental rights, tutela, has been overused, provoking the extension of judicial proceedings and legal instability. The Constitutional Court has further complicated that situation by engaging in a debate with the Supreme Court, and reserving for itself the right to review judicial decisions. In this context, it is reasonable to conclude that the lack of unity in the judiciary has prevented it from using its powers to evolve. If that is the case, an agreement between leaders of the judiciary could significantly improve the situation and there is thus hope for a stronger democracy in Colombia.
[1] Stability and the rule of law are elusive goals in the years that follow independence. The recent history of post-colonial Africa is an example of the pervasive challenges. See: Crawford Young, The End of the Post-Colonial State in Africa? Reflections on Changing African Political Dynamics, 103 AFRICAN AFFAIRS, 410, pp. 23-49, (2004).
[2] In the interest of brevity and clarity, I will not comment on all the Constitutions that governed what today is the Republic of Colombia, nor will I distinguish the different names that the country adopted in the years following independence. It is important to acknowledge, however, that there were multiple constitutions and self-proclaimed nations after the war of independence.
[3] This was acknowledged in a historical statement made by Simón Bolivar after Congreso de Angostura in 1819, when the Spanish had regained control over certain parts of the territory, and reaffirm in the 1921 Constitution of Cucuta, which ruled the country for almost a decade. See: Luz Estella Nagle-Ortiz, Evolution of the Colombian Judiciary and the Constitutional Court 6 INDIANA INTERNATIONAL AND COMPARATIVE LAW REVIEW, pp. 5-90 (1995).
[4] It is crucial to stress that one of the engines of independence was the lack of representation of both natives and Spanish descendants born in the Americas. This contrasts to the experience in North America, where “[o]ver the 100 year prior to 1763, the British came to accept local political freedom in exchange for the colonists acceptance of British control over the empire, including trading restrictions on the colonists.” Douglass C. North, William Summerhill, and Barry Weingast, Order, disorder and economic change: Latin America vs. North America, 19 GOVERNING FOR PROSPERITY, 1-54 (2000).
[5] Some contend that ‘legislative supremacy’ is part of a broader tendency in the 19th Century among civil law countries. For an analysis on its incidence and evolution in Latin America, see: Maria Luisa Murillo, The Evolution of Codification in the Civil Law Legal Systems: Towards Decodification and Recodification, 11 J. TRANSNAT’L L. & POL’Y., 1, pp. 163-182 (2001).
[6] Marie-Laure Basilien-Gainche, La constitucionalidad de contienda: la promoción jurídica de la guerra civil en la Colombia del siglo XIX, 35 HISTORIA CRÍTICA, pp. 130-149 (2008).
[7] Luis Eduardo Fajardo, La Corrupción Heredada: Pasado Colonial, Sistema Legal Y Desarrollo Económico En Colombia, 12 REVISTA DE ESTUDIOS SOCIALES, pp. 22-30 (2002).
[8] Luz Estella Nagle-Ortiz. “Evolution of the Colombian Judiciary and the Constitutional Court.”
[9] According to the official historical account, as soon as he was informed of the situation, President Belisario Betancur instructed the Ministry of Defense and the Director of the Police to “…reestablish the Constitution, with the precaution of protecting the hostages and the guerrillas” Jorge Anibal Gómez Gallego, José Roberto Herrera Vergara, and Nilson Pinilla Pinilla (2010) “INFORME FINAL: Comisión de la Verdad sobre los hechos del Palacio de Justicia,” Universidad del Rosario, at 119 (own translation).
[10] The bodies of dozens of victims disappeared after the incident. The location of some of them is still uncertain and others were found several years after. The most recent, in 2017. See: Tomás Betín, Identifican restos de Bernardo Beltrán, desaparecido del Palacio de Justicia, EL HERALDO, September 2, 2017; and Vanguardia, Medicina Legal entregó restos de víctima de la toma del Palacio de Justicia, November 4, 2017.
[11] Liliana Carrera Silva, The Action of Guardianship in Colombia, 5 REVISTA IUS, 27, pp. 72-94 (2011).
[12] Id.
[13] Constitute, Colombia’s Constitution of 1991 with Amendments through 2005, transl. by Marcia W. Coward, Peter B. Heller, Anna I. Vellve Torras, and Max Planck Institute, p. 21 (2005).
[14] In view of the Constitutional Court, rights excluded from Chapter 1 could be considered fundamentals by their own nature. A detailed review of the early case-law of the Court is commented by one of its members in: Eduardo Cifuentes Muñoz, La Acción De Tutela En Colombia, 9 IUS ET PRAXIS p. 3 (1997).
[15] Colombia has the highest rates of internal displacement and the Court order the central government to implement a special program to protect them. See: Corte Constitucional, Sentencia T-025 of 2004.
[16] These and arguments justified a constitutional amendment establishing a cap on spending. For an analysis of the economic rationale of the amendment, see: Roberto Steiner, Regla Fiscal y el Principio de Sostenibilidad Fiscal en Colombia, FOCO ECONÓMICO, May 11, 2011, available at: http://focoeconomico.org/2011/05/10/regla-fiscal-y-el-principio-de-sostenibilidad-fiscal-en-colombia-2/
[17] Some even contend that criminal judges are taking conclusive decisions of tutela requests that concern labor rights. The lack of training (not of authority) allegedly results in deficient decisions. See: Carolina Porras, La acción de tutela, OPINIÓN, October 24, 2017.
[18] See: Colombian Constitution, articles 86, 153, and 241.
[19] Luz Estella Nagle-Ortiz, “Evolution of the Colombian Judiciary and the Constitutional Court.”
[20] A third practice that I will not mention here is the emission of decisions that are tantamount to legislation, which originated what is known as judicial activism. See: Rocío Díaz Vásquez, El activismo judicial de la jurisdicción constitucional en el marco de la democracia 11 JUSTICIA JURIS, 2, pp. 50-57 (2015).
[21] Id.
[22] See, Sentencia C-590, 2005 and Sentencia SU-297, 2015.
[23] Former President of the Supreme Court, Yesid Ramirez Bastidas, famously stated that the country needed to “stop impunity” and that the Constitutional Court’s practice “stimulated corruption.” ‘Choque de Trenes’ entre las altas Cortes por fallos de tutela en famosos casos de corrupción, CARACOL RADIO, March 23, 2006.
[24] CIDH regaña a Colombia por ‘choque de trenes,’ EL TIEMPO, October 23, 2007.
[25] The controversy was so heated that the Council of State of Colombia had to clarify that press releases have no binding character. See: Ambito Jurídico, “Comunicados de prensa de la Corte Constitucional no producen efectos jurídicos,” April 13, 2006.