a network of constitutionalists from countries throughout the world
This week, we return to some of the themes discussed at the IACL roundtable held in Melbourne in May 2016. In this fourth and final blog post, David Landau (Mason Ladd Professor, Associate Dean for International Programs, Florida State University College of Law) responds to Manuel José Cepeda Espinosa’s lecture “The peace process and the Constitution: Constitution making as peace making?”
I am honored to have a chance to respond to Justice Manuel Jose Cepeda’s extraordinary lecture on the 1991 Constitution and peace in Colombia, and grateful to Adrienne Stone for setting up the virtual roundtable around the event. Justice Cepeda’s core argument that the 1991 Constitution, and the Colombian Constitutional Court, has played a central role in modern Colombian politics and society, and in the search for peace, is both very plausible and at the same time quite provocative. Justice Cepeda argues in essence that the Constitutional Court was a central player in the peace process, a fascinating and important insight for the field of comparative constitutional law.
The Colombian Court and its central legal instruments such as the tutela (or individual complaint) have without question become important parts of the social and political landscape in Colombia. And, although the causal pathways are harder to draw, the success of the court in addressing problems like social inequality and bureaucratic injustice through the tutela have plausibly increased the legitimacy of governmental institutions, undermining the arguments of guerrilla groups.
Finally, the Court has been a player even in the negotiations and political maneuvering during the peace process. For example, it has several times ruled on constitutional amendments and legal changes intended to facilitate the peace process: in approving those changes under condition that they be understood in certain ways, it also placed limits on the agreements under the aegis of the Colombian Constitution and international law. The Court’s decisions reinforced, but also recognized as containing some flexibility, international limits on amnesties and commutations of grave crimes by guerrilla groups, paramilitaries, and the state. In so doing, it provided valuable guidance during the negotiation process and helped to solidify an understanding of what kinds of agreements could and could not be reached.
One could raise at least two broader – and unsettled — issues from the standpoint of comparative constitutional law. The first is replicability. As Will Partlett’s contribution to this roundtable points out, the Colombian experience arguably depended on a social and political commitment to the rule of law that may be exceptional. Somewhat paradoxically, the historically violent country of Colombia is also one with a history of commitment to law, to courts, and to institutions.
Interrelatedly, the role of the 1991 Constitution to bringing peace has depended on the extraordinarily activism of the Court itself – witness the catalogue of some of the Court’s important decisions contained in Justice Cepeda’s lecture. The tutela instrument offers a rich example of the Court’s work in constructing its protagonist’s role within the political system. The 1991 Constitution establishes a solid basis for the instrument. For example, it establishes that it should be informal and rapid (decisions must be made within 10 days at each level); it also gave the Constitutional Court full discretion to determine which tutela judgments it would review.
But many of the most important moves in making the tutela a social phenomenon were made not in the text, but in the ensuing years in the interactions between the Court and potential litigants. For example, it was the Court that established the justiciability of social rights in the face of an ambiguous text, thereby opening up the tutela as an instrument for resolving bureaucratic failures in healthcare and pensions from a huge number of ordinary litigants. The Court also created structural remedies out of a paradigmatically individualized device, by creating concepts like the “state of unconstitutional conditions.”
Simply put, replicating the Colombian model may be challenging because the model depends not just on designing robust mechanisms to ensure access to justice in the constitution, but also on a Court that is willing and able to be aggressive in pushing those mechanisms. I do not mean this necessarily as a reason for pessimism, but rather as a prodding towards new directions of research. The growing literature on the “global south” has to date focused on the exemplary courts like India, South Africa, and Colombia, which have justifiably captured the scholarly imagination. But studying the more typical or even dysfunctional courts may give us better clues as to how to transplant ideas from the super-activist contexts or how to improve access to justice in less ideal conditions.
A second point worth reflecting upon is the feedback effect of a super-activist Court on the political system and on society. This is a subject that depends on empirical data, and about which we know very little. Justice Cepeda defends the activism of the Colombian Constitutional Court based on political context, particularly the institutional failure of the political branches to channel social demands and to carry out the constitutional project. I have written somewhat analogous defenses here and here.
But we do not know very much about how judicial activism as a response to institutional failure feeds back on the political system, especially in the “global south.” In the Colombian case, for example, the tutela emerges in part as a compensation mechanism for bureaucracies that are performing very poorly. Citizens aggrieved because their healthcare requests were unjustly denied by insurers working within an inadequate regulatory environment can seek effective, straightforward, and rapid relief in the courts. Rather than having to wait years for uncertain justice as they might in the ordinary civil or administrative systems, complainants are likely to receive real relief in a short period of time. On a broader scale, the Court’s structural mechanisms may allow it to prod inept and unfocused bureaucracies towards prioritizing pressing problems and becoming more responsive to social demands. Thus, the Court’s large-scale interventions in internally displaced persons (T-025 of 2004) and healthcare (T-760 of 2008), as well as other issues like pensions, aimed to ameliorate sweeping and chronic problems of bureaucratic inadequacy.
From a theoretical perspective, however, the impact of these interventions on politics and law is actually indeterminate and riddled with uncertain empirical questions. They may increase the legitimacy of the state by allowing citizens to remedy injustices that previously would not have been redressed. They may result in virtuous cycles that improve the quality of political discourse and bureaucratic functionality. But it also seems possible that they result in vicious cycles. Activist interventions might, for example, suck legitimacy away from the political branches by reinforcing popular narratives that political parties and leaders are inadequate and that courts are the only way out. Or judicial efforts to ameliorate political problems may take pressure off of political and systematic solutions to those problems, ultimately hindering long-run state performance.
As Justice Cepeda suggests, I think that ultimately the “virtuous cycle” narrative is a better fit for the Colombian experience. Some of the Court’s individual tutela judgments may have reinforced rather than altering bad bureaucratic behavior, but the Court’s structural judgments improved dysfunctional bureaucracies at least to a degree. More broadly, the Court’s judgments in areas like the rights of victims and of the poor slowly changed political discourse, forcing political actors to contend with constitutional questions that were crucial for the peace process and the terms of the debate. For example, the Court was in part responsible for forcing the political system to see those many citizens harmed by the armed conflict, either by the state, guerrillas, or paramilitaries, as victims entitled to a set of rights under international and Colombian law. The “Victim’s Law,” passed in 2012, was a powerful symbolic statement of that changed discourse. Similarly, the Court was instrumental, through its work in T-760 and elsewhere, in reconceptualizing health as a right rather than a mere system or public service.
All of this suggests that very strong courts can, within realistic limits, improve the performance of dysfunctional political systems over time rather than just papering over (or even hindering) their deficiencies. But this conclusion merits far more careful study, in addition to considering the elements that may have allowed the Colombian model to work and that might be tried elsewhere. Ultimately, then, a substantial benefit of Justice Cepeda’s reflection on the extraordinary Colombian experience it to help us conceive of ways to generalize parts of the model to more typical contexts, and less heroic courts.