One of the most extraordinary changes of the state since the Second World War is the spread of judicial review and the creation of Constitutional Courts in many countries.
The idea that norms and state actions should be according to the Constitution and that this accordance may be a matter for judicial review, has been extended to the remotest places in the world. One state after another has been meshed into the structure of a constitutional system at the top of which is the Constitutional Court.
Nowadays, judicial review is considered an essential institution for the Rule of Law and Democracy, not only in Europe and the United States, but also in Africa, Asia and Latin America. Its main function is to bind governments and parliamentary majorities to the mast of constitutional rights and the basic rules of the political game, and to avoid them succumbing to the siren songs of the political climate. Terrorism, financial crisis, and natural, political and social disasters can threaten the stability of any nation. In seeking to survive, the state cannot place unlimited restrictions on fundamental human rights. The state can only be justified to the extent that it succeeds in protecting human rights, and in optimising its effectiveness. In this sense, judicial review is a mechanism for protecting rights and the basis of the state against the excesses of governments in times of crisis.
However, this amazing spread of judicial review around the world and the large theoretical literature about its functions from a state-engineering point of view have been accompanied by an almost absolute lack of attention concerning its praxis and the singular effects that its implantation in very different cultural and political contexts has generated. The experience of judicial review has been similar to those of democracy and human rights. They have been transplanted from European constitutions, which were adequate for industrialised societies, into heterogeneous societies, where the economies have suffered the effects of colonialism and which are based on the export of primary goods that compete to disadvantage in the global market. The effects produced by this transplantation have not been analysed adequately, either by theorists or the international community. Whether the assimilation of judicial review in peripheral societies like Colombia has led to a better guarantee of constitutional rights and a strengthening of democracy or to a camouflaged aristocratic government by judges, allowing the continuity of domination by traditional elites, has not yet been discussed in depth.
Darío Echandía, one of the most quick-witted Colombian presidents of the twentieth century, has said that it is not the same thing to legislate for “Dinamarca” (Denmark) as it is for Cundinamarca – Cundinamarca is a department that lies around the Capital District of Bogotá. This is an ironic way of saying that the extrapolation of political and legal institutions from well-ordered societies into problematic contexts should be made after an exhaustive observation of all the variables that can influence their functioning.
Although judicial review is a well-established institution in Colombia existing since 1838, the creation of a Constitutional Court is a novelty introduced by the Constitution of 1991. Its working has originated a true revolution in the praxis of political and legal systems.
It should be remembered that the creation of the Constitutional Court by the Constitution of 1991, introduced after the positive experience of this type of Court in Germany after the Second World War and Spain after Franco, took place in a very singular context from the political and constitutional point of view. Since its independence from Spain in 1810, the political history of Colombia has been dominated by an endless fratricidal war. From the beginning of the nineteenth century until the middle of the twentieth century, war between the members of the two traditional parties, the conservatives and liberals, caused bloodshed on a scale comparable only with that of the Mexican revolution. This critical situation declined in the 1970s when the leaders of the parties signed an agreement for alternate power sharing with a formula called the ‘National Front’. According to this formula, the President was succeeded by a President from the opposing party. In spite of its benefits, this formula excluded from the political system any political thinking which differed from that proclaimed by the conservative and liberal elites. These traditional elites defended in unison the monopoly of the means of production above all the land. They could not address the claims of the working class, indigenous peoples and farmers, continuously dominated by the big landowners. The only difference between conservatives and liberals, wrote García Márquez, was that the first went to mass at seven, and the second at nine.
The closed nature of the political system during the ‘National Front’ allowed for the emergence and consolidation of various guerrilla groups. At the beginning, the guerrillas fought for a kind of leftist political thinking, close to Marxism and Maoism, which they proposed as an alternative to the unified thinking of the conservatives and liberals. As a result the war continued but the parties changed their flags. With support from the United States, the state tried to exterminate the guerrillas, who on their part received financial and ideological support from the USSR and Cuba. Nevertheless, neither side was able to defeat the other. On the one hand, thousands of deaths weakened the Colombian state which, in spite of its claims to being a state, has never had a monopoly on power in the whole national territory. On the other, the guerrillas have survived through different mutations. The most remarkable, resulting from the fall of the Berlin Wall, was the absolute loss of ideological direction and the project of alternative politics and their transformation into a lucrative business of organised crime, kidnapping and drugs trafficking.
The Constitution of 1991 emerged as a sign of hope in the middle of this crisis. The process of its discussion was the first that can be considered democratic in the history of Colombia. This was the first constitution which did not represent an imposition by the victor on the vanquished. Representatives of the most heterogeneous groups and classes in Colombian society were able to participate in the elaboration of its text. Its main motto was pluralism. The constitution tried to open up the political system and to guarantee the political participation of indigenous peoples, the working class, farmers, and members of guerrilla groups. In addition to this, the wide-ranging declaration of social rights with binding force compels the state to work actively towards achieving a better level of social justice and distribution of wealth to benefit groups traditionally discriminated against. In order to oversee the accomplishment of all these constitutional duties by the government and congress, the Constitutional Court was created.
In this political landscape, the functioning of the Constitutional Court has been determined by many interesting paradoxes.
For a start, under the Constitution of 1991, the state has not had enough political and military power to eradicate the guerrillas and other illegal groups, such as paramilitary groups or drugs dealers. As a result, the Colombian territory is a paradigmatic case of what the sociologist Boaventura de Souza Santos called ‘legal pluralism’. This means the coexistence in the same geographic area of diverse legal systems with different rules and levels of efficacy. From this point of view, the legal order of the state, based on the basic rights applied by the Constitutional Court, has to coexist with other systems of legal rules and principles guaranteed by the very effective illegitimate force of guerrilla weapons, paramilitary groups, and drug dealers. These circumstances can perhaps explain the paradox that in a country always accused by the international human rights watchers of huge violations of human rights, there is also a court that is able to apply these rights with the most refined methodological procedures, according to the best European and North American legal criteria. Of course, this guarantee of human and basic rights is laudable. However, the famous statement by the philosopher Richard Rorty is relevant regarding this theme: it would be better for human rights if we tried above all to ensure the conditions for its practical application, rather than to seek its better philosophical foundation or, we might add, the most sophisticated procedure for its adjudication.
A second paradox concerns the relationship between the Constitutional Court and the political system. The opening of the political arena to other political groups and movements, in addition to the traditional political parties, has led to the chaotic composition of majorities in Parliament. Majorities fluctuate, changing according to the political necessities resulting from the praxis of “clientelismo” (this is the practice of obtaining votes with promises of government post or other decisions). This has reinforced ‘presidentialism’, that is to say the feature of the political system related to the pre-eminence of the President over the other powers in the state, especially that of parliament. This historical imbalance between parliamentary and presidential power, which has its own democratic legitimacy in the whole of Latin America due to its direct and independent election, has increased as a result of the loss of structure in the party system. The consequences have not only been reflected in the well-known loss of parliamentary legislative competence, but also now in its capitis diminutio concerning political control. Not even the implantation of strategies for political control which derive from parliamentary systems, such as the vote of censure or questions to government, has succeeded in toning down hyper-presidentialism in Colombia. Nor has it been able to halt the alteration of the principle of checks and balances and its corollary, that is to say, the basic idea of the Rule of Law: power should control power to avoid excesses. Each government has succeeded in manipulating the fluctuating political forces to elude checks on their power, not only concerning public policies but also about questions of morality.
This situation has led the Constitutional Court to play a role which has nothing to do with its nature as court. With great popular support, it began to exercise political control of the government and parliament, which for its part had to a great extent acquiesced to the president. In this sense, the court has tried to compensate for the predominance of presidentialism and the deficit of political control by the parliament, with a perhaps unacceptable spread of judicial review. At the beginning, judicial review had been considered as an objective legal control, which should be undertaken with legal interpretation methods constructed around constitutional doctrine and the theory of basic rights. However, this control has been misused as political control, in which the main objective is no longer to identify the possible contradictions between the constitution and the law, but to discuss the convenience and coherence of certain public policies. An example of this assertion is the fact that the Constitutional Court has assumed not only a formal but also a substantial control of the amendments to the constitution proposed by government and approved by the parliament in its role as the secondary constituent. In contrast to constitutions such as German Basic Law, the Colombian constitution does not have intangibility provisions, that is to say, provisions forbidding the introduction of amendments to certain parts of the constitution’s text. It means that according to the constitution, parliament is permitted to introduce amendments to every provision. In spite of this, the Constitutional Court has defended a thesis according to which there are implicit intangibility provisions in the Colombian constitution. Thus, one important function of the Constitutional Court is not only to discover the normative content of these implicit provisions, but also to verify that they are respected by amendments to the constitution.
All this means that the court not only adjudicates but also creates the criteria for adjudication, and that it not only weighs but also creates the balance. At the time of writing, the court is deciding whether an amendment allowing President Alvaro Uribe, who has much popular support, to be reelected, is acceptable. Without entering into the ethical problems concerning changing political rules by a government which is bound by them, in order to guarantee continuity, it is certain that the Constitutional Court should decide about weighty matters related to the possibility of the re-election of the president. Nevertheless, the court does not have any legal criterion for this decision. Thus, it is an entirely political judgment, simply political control over government and parliament.
However, the most remarkable matter concerning developing political control in judicial review is the adjudication of social basic rights. In this context, the Constitution of 1991, not only the most generous guaranteeing social basic rights in the history of Colombia, but one of the most generous in the world, is facing another paradox. In 1991, the government enforced countless neo-liberal World Bank and International Monetary Fund directives concerning the reduction of the level of public expenditure. As a result, the state and, above all, the public administration lost their ability to satisfy the social basic rights established by the constitution through a system of public services and built on the basis of public interest. Many areas of the economy were privatised, and concerns such as health, pensions, and education were subject to private economic interests. The paradox is undeniable: every human being has certain social basic rights which the state should, but is not able to, satisfy.
The Constitutional Court has played an important role regarding the resolution of this paradox. Social basic rights are promises of benefits made by the constitution to each person. The Constitutional Court has assumed the role of guaranteeing their fulfillment. For this reason, it is not unknown for people to bring out injunctions against the state claiming public expenditure, due to the inability of the State to fulfill social basic rights, in order to obtain the benefits promised by the constitution. It is clear that the adjudication of social basic rights is a highly complex matter. Constitutional provisions establishing basic rights to health, home, education, salary and pension are structurally open. That is to say, in the same way in which a lifeguard can undertake several actions in order to save somebody who is in danger of drowning, parliament and the public administration can fulfill claims concerning social basic rights in several different ways, according to economic, political and social criteria. There are as many ways to fulfill social basic rights as there are technical methods to satisfy the claims that can be derived from them.
Nonetheless, the Constitutional Court has controlled public policies, has declared that the level of protection of social basic rights offered by them was inadequate, has directly adjudicated these rights and has chosen optimal criteria for their satisfaction. For instance, the court has determined appropriate conditions for prisons in order to guarantee prisoners’ rights (Decision SU-995 of 1999), as well as declaring that the salary of public employees should be increased in line with inflation (Decisions C-1433 of 2000, C-1064 of 2001, C-1017 of 2003 and C-931 of 2004). Further, the court has ruled as unconstitutional some norms regarding the public system for financing homes which were considered inconvenient and as contrary to the right to a decent home (Decisions C-383, C-700, C-747 y C-995 of 1999). The court has established that the government may not change the salary conditions of public employees in fixed collective agreements (Decisions C-038 and 754 of 2004), and has protected the rights of street-sellers to work in the street (Decisions T-772 de 2003). The court has also judged that the level of protection given by the government to those displaced by violence within Colombia was insufficient to guarantee their rights (Decisions T-025 of 2004). To disguise the political nature of its judgments, the Constitutional Court has observed in some of these decisions that there was an “unconstitutional state of affairs”, giving the façade of the application of a purely legal methodology. However, it is no more than an affirmation in the sense that reality is not yet as it should be according to the constitution or, in other words, that reality is not yet as it should be according to what the court believes the constitution establishes.
For better or worse, the role of political control exercised by the Constitutional Court enjoys growing legitimacy and popular support, not only in public opinion, but also by certain authors. However, the intense interference in the democratic principle and the pressure on the state budget that this political control gives rise to must be taken seriously. They should be thoroughly discussed from the perspectives of state theory, democracy, political philosophy, and constitutional law. Perhaps it is time to repeat the question that inspired the well-known debate between Hans Kelsen and Carl Schmitt about ‘the guardian of the guardian’. In addition to this, it is important to consider whether it is philosophically and politically correct that in countries such as Colombia, democracy can be constrained because of the need to protect social basic rights and control presidentialism.
Is this not in fact a renewed form of authoritarianism, perhaps less spectacular than military dictatorship, but equally restrictive of political autonomy? Or, on the contrary, should this be considered as the right path to long-awaited political stability in Latin America, and in the developing world as a whole, that has found in judicial review an appropriate means to the application of social justice, equality and control of power? Providing an answer to this dilemma is one of the most interesting political challenges of the century in Colombia and other countries.
