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This week, we return to some of the themes discussed at the IACL roundtable held in Melbourne in May 2016. In this third blog post, William Partlett of Melbourne Law School responds to Manuel José Cepeda Espinosa’s lecture “The peace process and the Constitution: Constitution making as peace making?”
It was my privilege to meet Justice Manuel Cepeda and to hear his comments on the role of the constitution in the peace-making process between the government and FARC. The likelihood that Justice Cepeda will be successful in using constitutionalism as a tool for peace-making—fostering what he calls “constitutional peace pacts”—is promising. In fact, Justice Cepeda himself served on one of the most remarkable and successful constitutional courts in recent history: the Colombian Constitutional Court. Since its creation in 1991, the Colombia Constitutional Court has successfully taken on key problems in contemporary Colombia from autocratic presidents to persistent poverty.
The success of the Colombian Constitutional court in taking on these pressing problems in Colombian history has not gone unnoticed in comparative constitutional law. In fact, many scholars have placed Colombia at the forefront of a trend of “new constitutionalism” in which courts take on highly activist roles in politics. (Contributors to this scholarship include Daniel Maldonado, Helen Stacy, Jackie Dugard and Theunis Roux). In a recent book, Sam Issacharoff has argued that newly formed constitutional courts like the Colombian Constitutional Court have played an important role in stabilizing “fragile democracies” and preventing backsliding into authoritarianism.
This literature is important, providing strong evidence that skeptics of judicial power should rethink their assumptions that courts should always step back from politics. But, as I have argued elsewhere, these findings raise another set of questions about judicial review and democracy stabilization. First, what motivates judges on these newly created constitutional courts to seek an active role in improving democratic politics? And, perhaps more interestingly, how do they convince political players to comply with their decisions? A wider comparative survey shows that new constitutionalism has not always succeeded around the world. For instance, one of the most striking failures of new constitutionalism can be found in Russia, where an assertive constitutional court was ultimately disbanded after trying to limit the power of the president.
Most of the answers in the literature have addressed this question of success and compliance from the language of rational choice theory. They have viewed courts as power-maximizing, strategic political players that succeed in compliance by avoiding confrontation. The implication therefore for the failures is that they were not sufficiently strategic. Or as Isacharoff himself suggests briefly in his book, the Russian Constitutional Court failed because it was too confrontational.
There is more to this story. In fact, the rational choice approach ignores another important aspect of the success of new constitutionalism: historical context. In Colombia, history helps us understand the first question: Why did the Colombian Constitutional Court seek to improve democratic politics? The answer is the that judges on the newly created court—many drawn from academia—saw themselves as improving on Colombia’s tradition of rule of law by “focus[ing] on the principles and values behind constitutions.”
Justice Cepeda himself is a classic example of this. He describes the deep tension within the Colombian historical tradition between solving disputes “by bullets or the resignation of the weak” and through rule of law. He attributes this tradition of legalism to Francisco de Paula Santander, “a lawyer, General, and rival of Simon Bolivar” whose words can be found above the entrance to the Constitutional Court reminding Colombians that “arms gave you independence, but only laws will give you freedom.” Cepeda goes on to suggest that the only way for Colombia to succeed is for judges to carry out Santander’s mandate and build on this legalist tradition to ensure peaceful means of resolving disputes.
Colombia’s historical background also helps us understand how it gained compliance in the rough-and-tumble politics of post-1991 Colombia. In Colombia, the court had the luxury of building on a long-established tradition of judicial review. For instance, Justice Cepeda described how the new 1991 Constitution improved on the pre-existing actio popularis claims—abstract individual claims against constitutional amendments, laws, and regulations that required few formalities. In the new Constitutional Court, this “old public action of unconstitutionality” became something of “enormous social and political significance.” Cepeda describes how, from a baseline of about 50 abstract review claims in the 1990s, the Court now considers 400 of these claims. In response to those who might think this is “government by judiciary”, he argues that it is simply “accepted” that judges do this kind of work. “The sustainability of independent judicial review in Colombia”, he argues, “may be explained essentially because people feel heard, valued and protected by the judges.” Thus, Colombia’s historical tradition of judicial review provided important resources of popular support that have helped ensure compliance.
History had different effects on the Russian constitutional court. In Russia, history also shaped the judicial worldview of the new Court Chairman—Valery Zorkin. He strongly believed that the court must seek to return Russia to the “legal track” of the late Tsarist period that was ended by the communist era of “legal nihilism.” Chairman Zorkin therefore led the court to a number of decisions striking down both presidential decrees and laws.
Yet, Russia’s late Tsarist history of legalism was not strong enough to ensure compliance. Much of the post-communist political elite—including President Boris Yeltsin—were former communist party officials who had little understanding or belief in judicial review. For instance, when the Russian Constitutional Court was established in 1990 by reformist communists, there was very little debate or even understanding of its potential effects. And, once in effect, executive and legislative branch officials viewed Constitutional Court decisions with puzzlement and disdain, seeking to block publication and refusing to implement them. Without strong support, it was not long before President Yeltsin disbanded the Court in October 1993.
In sum, the point here is more than just “history matters.” Instead, it is to show how historical context can motivate judges who are part of the “new constitutionalism” and also provide them (or deprive them) with the resources for the implementation of their ambitious judicial projects. In this way, it helps us understand the varying parameters of new constitutionalism and its potential for success outside of contexts like Colombia. Thus, the brief comparison between Colombia and Russia in this piece suggests that, although judges might be able to construct a historical context for activist constitutional review, this tradition likely needs to be relatively broad and influential before it can also provide them with the resources to actually implement their newfound judicial activism.