[Editor’s Note: This is Part I in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here.]
–Carlos Bernal, Justice, Colombian Constitutional Court
The Colombian Constitutional Court is well-known worldwide for carrying out transformations that political authorities were unable to effectuate. The enforcement of constitutional rights has catalysed changes concerning the protection of vulnerable individuals (such as inmates,[1] and internally displaced people),[2] the elimination of discriminatory practices (for instance, against indigenous peoples and other minorities),[3] the advancement of real equality in the health and pensions systems,[4] and the assurance of a minimum core of economic and social rights against the political inertia.[5] Moreover, the Court has maintained essential constitutional principles in the face of constitutional amendments, in particular, those from presidential origin.[6]
On the one hand, these changes have still failed to achieve in full the goals set by the constitution. Thus, the Court should keep carrying out its transformative role. On the other hand, the Court is becoming the only battleground for solving deep-rooted societal conflicts. This centralization is engendering undeniable side effects that have the potential of hindering the transformations. This leads to a paradox: if the Court declines the task of continuing the transformations, the constitutional objectives concerning the realization of constitutional rights, the rule of law, and deliberative democracy will never be achieved in full. However, if the Court carries on with the changes, its decisions might not generate the desired transformative effects. This is due to the following side effects.
First, some decisions by the Court have undoubtedly fed public debate and led to legislation and policies respectful of constitutional rights.[7] However, the Court is becoming the target of interest groups that, by means of strategic litigation, want to achieve an advancement of interests that in a constitutional democracy, after a broad deliberation, should be openly balanced by the legislator with other competing interests. This could weaken representative, participatory, and deliberative democracy. Elected authorities could lose incentives to undertake societal changes that the Court will undertake; citizens could prefer litigating rather to mobilizing; and political deliberation could constrain itself to constitutional argumentation.
The protection of labour rights offers a clear example of this phenomenon. Multiple court decisions granting stability to workers in vulnerable circumstances have neither triggered consequential changes in legislation nor ordinary labour law jurisprudence yet. Instead to pressure an update of legislation, workers plead their cases directly to constitutional judges via tutela.[8] Hence, there has not been democratic deliberation on as to whether employers can provide for those benefits. This has increased the judicialisation of politics and strengthened an over-constitutionalisation of justice. In Colombia all judges are competent to decide tutela cases. Data show that this task fills about 30% of their workload.[9] Hence, their work on ordinary — criminal, civil, commercial, and labour — law cases becomes residual. Ordinary justice is losing its nature as the ordinary way to resolve legal conflicts. Moreover, there is a hollowing of competences of labour judges and contradictions between labour law and constitutional law jurisprudence.
Second, ambitious decisions made by the Constitutional Court can become inefficacious, given that most of them require active cooperation by all branches of government. This could increase mistrust in state institutions and even in constitutional justice. For instance, as previously quoted, since 1998 there has been multiple Court decisions concerning constitutional rights of inmates. Moreover, the Constitutional Court has retained supervisory jurisdiction for overseeing compliance with the orders. The Court keep issuing decisions reminding compliance with the original orders and adding some others.[10] This is an indicator of very small progress in achieving the desired transformations.
Third, already highlighted by Ferraz–about Brazil[11]–and Landau–about Colombia[12]–concerning economic and social rights, is associated with the priority that the protection of middle and upper-class interests, which are well represented in litigation, acquire over the protection of rights of the poorest and most vulnerable people. Naturally, decisions with general effects, such as those including structural remedies, are better suited to protect vulnerable people.[13] However, almost all decisions -at least corresponding to tutela cases- concern individual complaints. The most vulnerable people are less able to file well-argued complaints, and to trigger decisions by the Court, than middle and upper-class people. Hence, the ability to carry out constitutional litigation has become a de facto relevant criterion for the public distribution of benefits.
The most pressing challenge of the Constitutional Court is finding out a way to minimize those side effects. The question remains open whether the Court can accomplish this task by itself, whether broader constitutional changed is needed, or whether a skeptical conclusion must be drawn, namely, that transformative constitutionalism is an oxymoron disguising an illusion.
Suggested Citation: Carlos Bernal, Introduction to I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part II: The Paradox of the Transformative Role of the Colombian Constitutional Court, Int’l J. Const. L. Blog, Oct. 31, 2018, at: http://www.iconnectblog.com/2018/11/introduction-to-i-connect-symposium-contemporary-discussions-in-constitutional-law-part-i-the-paradox-of-the-transformative-role-of-the-colombian-constitutional-court
[1] See, among others, the Judgments T-153/98, T-388/2013, T-282/2014, T-762/2015, and T-197/17.
[2] See, the Judgment T-25/2004.
[3] See, among others, the Judgments SU/39/1997, T-652/1998, C-366/2011, SU-383/2013, and C-389/2016.
[4] See, among others, the Judgments T-760/2008 (concerning the right to health), and Auto 110/2013, T-774/2015, and SU-5/2018.
[5] See, the Judgment T-225/1998.
[6] See, the Judgment C-141/2000.
[7] For instance, the Judgment T-760/2008 triggered an overhauling health system leading to the statute of health (Law 1751/2015).
[8] A tutela, enshrined in article 86 of the 1991 Constitution of Colombia, is a judicial protection of fundamental constitutional rights through a preferential and summary proceeding.
[9] See the 2016 report to the Congress by the Superior Council of the Judicial Branch, available on-line at: https://www.ramajudicial.gov.co/documents/1545778/5597675/Informe+al+Congreso+Rama+Judicial+2016.pdf/764fe856-b746-4ead-bf71-4bc7daba91cd, at p. 151 f. (2.4.2017).
[10] See, among others the Decisions: Auto 191/16, and Auto 368/16.
[11] See, Octavio Ferraz, “Health Inequalities, Rights and Courts: The Social Impact of the “Judicialization of Health” in Brazil”, in: Alicia E. Yamin and Siri Gloppen (eds.), Litigating Health Rights: Can Courts Bring More Justice to Health? (Cambridge Mass.: Harvard University Press, 2011) chapter 4.
[12] See, David Landau, “The Reality of Social Rights Enforcement”, 53 (1) Harvard International Law Journal (2012) 190-247.
[13] The above-cited judgments in which the Court has declared an unconstitutional state of affairs concerning the protections of rights of inmates, internally displaced people, and holders of the right to health are examples of decisions adopting structural remedies.
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