Javier Tamayo Jaramillo
Introduction
This article synthesizes my contribution to the Robbins Collection symposium, “Judicial Independence and Accountability in Latin America,” held at the University of California, Berkeley School of Law on December 8, 2017. The theme of the debate was the independence of justice in the countries of Latin America, and as a Colombian, I had to refer to the state of the matter in Colombian law.
As a good part of the debate was related to the independence of the constitutional courts in Latin America, my premise from the outset was that the Colombian Constitutional Court, for reasons that I will indicate later, somehow holds sovereignty in Colombia. It dominates, without control, the political and legal spectrum of our country[1]. In order to demonstrate the above, I think it necessary to set some premises and clarifications that avoid diverting the substance of the debate.
I believe that constitutional courts are necessary to guarantee the rule of law and the protection of fundamental rights. The Colombian Court has been a pioneer in guaranteeing the latter, but I must also note that in other fields it has exceeded its powers.
On the other hand, I believe that the tutela or amparo action, enshrined in the Colombian constitution, is an indispensable element of democracy. But in Colombia, all conflict has ended up being solved by these two means, a situation which has led to the corruption of justice at all levels, and to the detriment of this exceptional mechanism.
In Colombia, in ideological matters, the jurists who defend the principle of legality, especially the one that states there must be respect for constitutional texts, are identified as reactionaries by the judicial and doctrinal left. I wish to affirm my adherence to the principles of Social Democracy and related ideologies, even if these principles are strongly attacked today by the rise of the political left and right populisms. Advocates for respect towards constitutional texts are Dworkin[2], Habermas[3] and Duncan Kennedy[4], and nobody would dare to affirm that these are reactionary philosophers.
Outline
I will refer initially to the causes of the supremacy of the Constitutional Court in Colombia, as opposed to the other branches of public power; then I will analyze the consequences derived from that supremacy; finally, I will refer to the judgments of constitutionality that endorsed the laws relating to peace agreements with the FARC.
Causes of the supremacy of the constitutional court over the other branches of power
As I said, the Colombian Constitutional Court is sovereign and uncontrolled, aspects which put the principles of legality, legal security and the division of powers at risk. In several rulings[5], the Constitutional Court—to justify the defense of the so-called stone clauses—has ignored the formal Constitution and applied the so-called material Constitution. It has had no difficulty expressly supporting the ideas of Karl Schmitt, ideologist of national socialism. The causes of this supremacy of the Constitutional Court over other branches of public power in Colombia are the following:
- Unlimited and uncontrolled judicial activism of its decisions.[6]
- Undue politicization as a result of the nomination and election mechanisms of magistrates.
- The obligatory nature of the judicial precedent of the Court itself, in flagrant contradiction of Article 230 of the Political Charter.[7]
- The acceptance of the tutela mechanism against rulings,[8] which has led to the biggest corruption scandals among magistrates and ex-magistrates.
These four facts mean that the Court is not totally unbiased in the rulings regarding constitutional matters that have to do with its ideological position, ideas that may benefit or harm the executive, or in matters in which some individuals or congressmen who are the readers of rulings have an interest. It is humiliating and outraging to see how candidates for high courts attend all kinds of social events to get the vote of the congressmen, thereby compromising their impartiality.
But the most important cause of all the previous ones, is uncontrolled judicial activism. Since the enactment of the 1991 Constitution, the Constitutional Court, following doctrinal values and anti-semantic doctrines, assumed the risk of ignoring clear constitutional and legal norms, with the pretext of guaranteeing the efficacy of rights and fundamental principles enshrined in the political Constitution[9]. Although it does not expressly recognize it, the Court thus applies the neo-Marxist doctrine of the alternative use of law,[10] originated in Italy, which proclaims judicial function as one of the many forms of struggle of the proletariat. Other times it accepts and applies the so-called evolutionary interpretation[11]. And as if that were not enough, as we saw (supra No. 6) it accepts the Nazi ideas of Karl Schmitt, to justify its ignorance of the formal Constitution and thus the application of the so-called material Constitution, which undermines the rule of law.
Based on these theories, and under the pretext of protecting the weak and applying the constitutionalizing of private law, the Court ignores the various dogmatic codes and the Political Constitution, recognizing social rights[12] without considering that they must be previously developed by the legislator and that they are only enforceable if they are possible factually and legally speaking.[13] This way the Court interferes in the planning of the budget and the administration of State in several judgments[14]. Unfortunately, with the voracity in guaranteeing social rights without considering the lack of economic resources,[15] the social security system has collapsed even for those who make large contributions.
I. Consequences of the judicial activism of the constitutional court
Now, as a result of this judicial activism, the Constitutional Court has become the real political power in Colombia, because both the executive and the legislator aware of their obligation to respect their rulings, have ended up submitting to the power of this Corporation. But the Court, despite the power obtained due to its judicial activism, has not known how to stay away from political power. In many cases, its rulings reflect its closeness or opposition to the executive power in command. Thus, judicial activism has become a lethal weapon to pay favors to those who nominate or elect these Judges. Therefore, the corruption of justice, of the executive, of the political class, and of public contractors is forged. In part, the control of constitutionality and the application of the tutela mechanism are shipwrecked. On the other hand, through the trial of amparo or tutela, the Court, as a closing institution, has been involved in corruption scandals because of the selection to review certain rulings that harm or benefit corrupt individuals. And through uncontrolled judicial activism, the Supreme Court through these rulings grants spurious benefits to white-collar criminals and people associated with corruption. Nowadays there is a process that involves four magistrates and ex-magistrates of the Supreme Court for the sale of tutela rulings that improperly favor people convicted in lower courts.
Besides all this, and with a great ignorance of jurisprudential coherence, mandatory judicial precedents are often changed by the same Court, without serious reasons or arguments that justify it, but favoring their own interests or ideologies.[16]
In contrast, the court accepted marriage between same-sex couples, despite the fact that according to the Constitution, this change is the responsibility of the Congress or the people, as established in Article 377 of the Constitution.[17] I am not opposed to same-sex couples getting married. What I claim is the fact that the constitutional norms that regulate the modification of it must be respected.[18]
Now, all these abuses against the Constitution and against the principle of legality, have only been possible because the Court expressly ignored Article 230 of the Charter, according to which jurisprudence is only an auxiliary criterion of application of the law understood in a broader sense (constitution, law, decrees, etc.), and judges must only abide to the rule law in their rulings.[19] However, under the mandate, according to which the interpretation of the law must be uniform in order to guarantee the principle of equality of all before the Law, the Court decided that the text of Article 230 is not applicable since its precedent is obligatory and equivalent to the Law.[20]
In addition, Article 377 establishes that by referendum, citizens can change the Constitution. However, the Court ignored this text, and affirmed that the people can only change the Constitution through a constituent assembly,[21] whose draft must be reviewed and endorsed by the Court itself.
And in the legislative acts of the Congress, the Court claiming all powers, affirms that there are constitutional norms that are irreplaceable in this way,[22] but refuses to establish a priori what those norms are. Consequently, each legislative act generates great uncertainty, because the constitutionality ruling does not depend on previous precepts, but on the political arena and the interests of the Judges.[23]
For example, a rule that took away from Congress the power to judge the most important officials of the State and the members of the Constitutional Court was voted. That change was made because in more than a century of existence of the accusations commission of the congress, only one person has been convicted. And the Court, currently immersed in a series of scandals, said recently that this reform was unconstitutional[24] and in that way it keeps its impunity and cannot be controlled. In turn, it became the judge of the congressmen who make up the commission of accusations.
- The rules relating to peace agreements
The Court, called to decide on the constitutionality of laws related to the implementation of peace agreements with the FARC, has decided that such laws are enforceable,[25] going beyond constitutional norms that regulate this process, under the pretext that peace is a superior precept that must not be submitted to the demands of the Constitution.
With respect to that violation, I would like to make a few observations:
- At present, I do not adhere to any party or political leader, nor do I have any relationship with any branch of the government, given the degree of corruption that today invades our institutions and the political class.
- I also consider that judges must have a margin of creativity, but they must respect the core of the constitutional norms, applying to the extent of needs the teleological method of the norms or of the institutions. I also believe that in cases of normative gaps the judge can create norms but in accordance with the principles that govern the legislations which contain these gaps.
- The Constitutional Court lacks competence to revoke clear constitutional norms, because that competence corresponds to the Congress or the people.
All this explained, let’s return to the peace process in Colombia.
- The difficulties that the peace process currently suffers from lie in the fact that neither party considered the need for a large consensus within the people and institutions they claimed to represent. As it is, FARC only represented twenty percent of the country’s insurgency, at the most. But what is more serious: the negotiating leaders of the agreement did not achieve a consensus within their forces and today there is a desertion that ranges between twenty and fifty-five percent, according to the experts. And the government, which has a popular acceptance that in the past five years has oscillated between eighteen and thirty percent, and lost a referendum in which it sought to legitimize the peace process, gave itself sweetly to the claws of subversion, making concessions that are not of its competence. What is more serious, concessions that allow refounding the country on all fronts, without taking into account that many of them are unconstitutional, and that their approval must go through Congress, by the political parties, and by the Constitutional Court.
- That lack of consensus, in the two peace negotiations, means that this has become a time bomb because the country is flooded with drug trafficking—a product of government concessions to the FARC, of their dissidence, of the criminal bands of the paramilitaries, and of the ELN, that today covers the zones and businesses that were left by the FARC. Between four and five thousand rifles of the FARC were silenced, but another 20,000 continue to shoot and take over all the businesses and violence of that subversive group. To this fact, it must be added that the government has broken most of the commitments to the FARC, and that is why many guerrillas are deserting and becoming mercenaries in other ranks.
- Consequently, in the face of this dark outlook, I think that while no agreement is made among all the political parties and institutions that represent the great majority and while a minimum welfare for everyone is guaranteed, there will be no democracy.
- As far as peace is concerned, I have no doubt that in almost all of society there was and still is a spirit of achieving it. This society as a whole, except for fundamentalists of the left and the right, would be willing to forgive all violent people on the condition that there is total peace, and not simply an agreement with twenty percent of the subversives, so that their spaces are not covered by the remaining eighty percent of subversives of all currents, such as has happened in practice.
- The first great error of the government consisted in carrying out a multi-year agreement, in the midst of a virulent controversy with those who, without being enemies of an agreement, understood that there were institutions, such as the Constitution, that could not be compromised without being accepted by the vast majority of society.
- The error was huge and split in two the affection of Colombians amongst themselves, because the government and the leftist intellectuals in their service became part of the Manichaeism of the friend-enemy dialectic, and then, they enrolled the critics, not of peace, but of the process, as enemies of peace, friends of war, or as Christians.
- Suddenly, the most harmful thing for the country’s institutions was that the government committed itself to the FARC to carry out a series of changes that according to the Constitution, should be first approved by the legislator and then go through the control of the Constitutional Court. And since the peace agreements were signed, the government, having no legal resources in its favor, bribed congressmen and their political allies, and controlled the election of several magistrates of the Constitutional Court to ensure the constitutionality of the decrees, laws, and acts the legislatures that regulated the process.
Conclusion
As a conclusion to all the above, it can be affirmed that judicial activism and the power of judges have permeated the entire legal and administrative spectrum of our country, all to the detriment of legal security and the legislative power as the Court has assumed a good part of the power to legislate. Now even if judicial activism is basically oriented by the Colombian neo-Marxist left, the fact is that the violent forces of the extreme left and the extreme right are so polarized and have so much power, that neither of the two extremes offer an alternative for governing. And if the extreme left or the extreme right are installed as a government, violence escalates even more. I get the feeling that every day institutionalism is blurred, that every day we are more violent, and that the legal norms in force, even if they are clear, do not indicate patterns of behavior because there is no coherent jurisprudence. We must be ready for judicial or administrative decisions contrary to what the law establishes. Anyone who wants to ignore the current law invokes the violation of a fundamental right and through the tutela mechanism, seeks the protection of judges. Consequently, only the return to respect for the rule of law interpreted teleologically can reorient our path towards a civilized society. Judges who are owners of values and enemies of the laws only generate insecurity and violence.
[1] On this subject you can consult my work, La decisión judicial, 2 vols., ed. Diké (2011).
[2] Hábermas, Facticidad y validez, TROTTA, 4th ed., 354 (2005).
[3] Dworkin, The Empire of Justice, GEDISA, 281 (2005), s.s.
[4] Kennedy D., Freedom and Restriction in the Judicial Decision, ed. Uniandes, 97 (2002), s.s.
[5] In this sense, see C-551 of 2003, commented by Tamayo Jaramillo, 1 La decisión judicial, 1517 (2011)., s.s.
[6] See judgment T-406-92, comments by Tamayo Jaramillo, op. cit., vol. 1, p. 1318, s.s.
[7] See C-836 of 2001. My opinion on this ruling in my participation in “The judicial precedent in Colombia,” ed. U. Javeriana and Editorial Ibañez, 11 (2012), s.s.
[8] See SU-047-99, cited and commented by Tamayo Jaramillo, 1 La decisión judicial, 1836 (2011), s.s.
[9] See T-406-92, commented by Tamayo Jaramillo, op. cit., vol. 1, p. 1325.
[10] See analysis of this doctrine by De Souza Lourdes, cited and commented by Tamayo Jaramillo, op. cit., vol. 1, p. 488, s.s.
[11] See T- 406-92, commented by Tamayo Jaramillo, op. cit., vol. 2, p. 337.
[12] See T-406-92, commented by Tamayo Jaramillo, op. cit., vol. 2, p. 1325.
[13] In that sense Alexy R., Theory of fundamental rights, 86 (1993). The fiscal rule was approved by legislative act, in Colombia, in order to rationalize public spending, but the Court (C 132 of 2012), although it declared the rule to be enforceable, decided that it did not apply for the recognition of social rights, which ended up collapsing the state coffers.
[14] T-406-92, n. 19
[15] See T-153-98, commented by Tamayo Jaramillo, op. cit., vol. 2, p. 1366
[16] S.U. 047, n. 7, commented by Tamayo Jaramillo, op. cit., vol. 2, p.1845 s.s.
[17] Constitutional Court, Judgment SU 214 of April 28, 2016. Judge Alberto Rojas Ríos.
[18] Alexy, consulted on the subject, accepted marriage between same-sex couples, but as long as people approved it by referendum. In that sense, see my article, ” Thank you Professor Alexy and Elster for the clarification,” LEGAL FIELD (2012). http: // https://www.ambitojuridico.com/noticias/columnista-impreso/educacion-y-cultura/gracias-profesores-alexy-y-elster-por-la-aclaracion /
[19] C-836-01, n. 3.2., commented by Tamayo Jaramillo, op. cit., vol. 2, p. 1635 s.s.
[20] C. 836, n.11, commented by Tamayo Jaramillo, op. cit., vol. 2, p.1668 s.s.
[21] In that sense, C-551-03, n. 40, commented by Tamayo Jaramillo, ob. cit., vol. 2, p. 1531
[22] C-1040-05, commented by Tamayo Jaramillo, op. cit., vol. 2, p.1536 s.s.
[23] C-1040, n. 7-10-1, commented by Tamayo Jaramillo, op. cit., vol. 2, p. 1538 s.s.
[24] Constitutional Court, Judgment C 285 of June 1st, 2016. Judge Luis Guillermo Guerrero Pérez.
[25] Constitutional Court, judgment C 699 of December 13, 2016. Judge María Victoria Calle Correa.