Constitutional Origin and Norm Creation in Colombia

Discursive Institutionalism and the Empowerment of the Constitutional Court

Jan Boesten

• Publisher: Routledge
• Year: 2022
• eBook ISBN: 9781000577792
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

This book explains the growing empowerment of the Colombian Constitutional Court in the early years of the 21st century and develops the concept of the deliberative judge.

Taking the case of the Colombian Constitutional Court and drawing on neoinstitutional theory to explain the relationship between political crisis and institutional reforms, the book challenges the notion of rational choice institutionalism that agents act strategically. It indicates the limits of path dependence and argues instead that discursive institutionalism is the most appropriate method for analyzing processes of institutional learning. Combining theoretical and empirical research, it builds the argument that judicial independence promotes the case for deliberative democracy over rational choice or strategic action approaches. Finally, the book suggests that by introducing communicative and cognitive variables in our understanding of key actors and processes, we are more capable of bridging institutional origin and legacy.

The work will be a valuable resource for academics, researchers, and policy-makers in Constitutional Law, Constitutional Politics, and Constitutional History.

1 Introduction

Ethical Legal Discourse in Delegative Democracies

DOI: 10.4324/9781003229285-1

Democratic Legality Triumphs over Democratic Security

The Colombian state is a social state of law (estado social de derecho), defined thusly in the first Article of the 1991 Constitution.¹ The question of constitutional reform to allow presidential re-election, benefiting an extremely popular and powerful President, Álvaro Uribe, put the meaning of this clause to the test. Colombia’s Constitutional Court had to decide how far the legislature can go in amending the political charter before its basic principles are unrecognizably altered. In 2005, the Constitutional Court affirmed a law that sought to change the Constitution and allow one consecutive presidential re-election (C-1040/05).² In 2010, the Court defected and disallowed a law that called upon Congress to ask Colombians in a referendum to change the Constitution to allow a potential second and consecutive re-election of the President (C-141/10). The Court found that a third term fundamentally changed the institutionalization of the separation of powers, which, as the Court argued, was an axiomatic principle implicit in the social state of law and consecrated in the Articles outlining the organic structure of the Colombian state (Art. 113).

The Constitutional Court in Colombia, through its decision not to grant the seal of constitutionality to that reform, asserted its judicial power by drawing on the “substitution doctrine”. This doctrine increased the Court’s authority by means of a reinterpretation of constitutional norms enshrined in the 1991 Constitution (Cepeda Espinosa and Landau 2017). In the same period between 2005 and 2010, Colombia’s Supreme Court also disclosed scandals and revealed a web of nefarious relations between corrupt Members of Congress (from the President’s coalition) and paramilitaries associated with the international narcotics trade. Together, the courts essentially stopped a corrupt and abusive executive in its tracks—an assertion of judicial power unprecedented in Colombia, and perhaps in Latin America. Since many constitutional reform efforts elsewhere in the Latin American region before and since have resulted in executive encroachment and in the erosion of judicial independence, the surprising outcome in Colombia has profound implications for our understanding of how judicial empowerment can buttress the separation of powers and reinforce the rule of law.

This book seeks to explain why the Court decided differently in 2010 from 2005, countered very evidently delegative trends in Colombia’s democracy, and reinforced the separation of powers and rule of law by buttressing horizontal accountability functions of a constitutional democracy. In the end, President Álvaro Uribe, who enjoyed significant formal powers assigned to the executive in the Constitution, and who could count on extremely high levels of popularity throughout his entire time in the presidency, complied with the verdict.

This is not a narrative of institutional consolidation through interest alignment, as is the explanation given in neo-institutionalist accounts of the consolidation of the separation of powers (North and Weingast 1989; North 1990; Helmke 2004; Finkel 2008; for Colombia see Hartlyn 1988); nor does it follow a path-dependent logic of institution building (Ackerman 1991; Pierson 2000; Mahoney 2000; Page 2006). The consolidation of the separation of powers in Colombia as a consequence of the empowerment of the courts in general, and the Constitutional Court in particular, followed a deliberative and communicative logic that evolved around discursive patterns.

Central for the significance of this case is the so-called substitution doctrine, which weighs if a constitutional reform exceeds the actors’ competence to implement such a reform. It is judge made law, giving dogmatic expression to the principle of proportionality in constitutional adjudication (Bernal 2013). It is not only judge made law that does not appear in the written text of the 1991 Constitution (see, for example, Sierra Porto’s dissent in C-1040/05); proponents of Uribe’s reform argued that it explicitly contradicts the stipulation that the Constitutional Court can review constitutional reforms for procedural defects only (see Article 241, 1–3) by introducing substantive parameters for the review of constitutional reforms.³ For these reasons, this doctrine is central for understanding the importance of this case for institutional theory, because by virtue of its creation and evolution it defies a strategic account of institutional development. It is therefore only prudent to quickly review the two decisions central to this book before explaining the contributions and designing the structure of this analysis.

Legislative Act 02 of 2004: “By which some Articles of the Constitution are Reformed and Other Dispositions are Introduced” (C-1040/05)

The 1991 Constitution only allowed one term in the highest office of the Republic. Álvaro Uribe, contrary to most of his predecessors, was hugely popular in Colombia, and had achieved considerable successes with his Democratic Security policy, which, as the name suggests, rested on the notion that good democratic governance arises in a secure environment. Due to the perceived fragility of these successes, and the key role that Uribe was said to play in implementing his policy, calls for amending the Constitution started surfacing early into his first term. In September 2003, Congress discussed the issue for the first time in plenum. The Colombian Constitution provides three ways for amending the charter and its norms: by legislative initiative through Congress, a popular referendum (that passes through Congress), and a constituent assembly. In 2004, Congress initiated the re-election reform with Law 02 of 2004 via the ordinary procedure through Congress. The reform project to allow a second immediate term in the presidential office encompassed four different Articles: Article 1, legislating the provisions for the incumbent in order to level the playing field; Article 2, altering Article 197 of the charter to the wording that any individual cannot be president for more than two consecutive terms; Article 3, specifying the role of the vice-president; and Article 4, guaranteeing the rights of the opposition in a statutory law. The last Article included a transitory clause, which gave the Consejo del Estado (State Council), Colombia’s highest administrative court, measures to legislate in case the law did not pass Congress prior to expiration of the legislative term, or if the Constitutional Court declared parts of the legislation unconstitutional.⁴

Article 241 of the Constitution stipulates that the Constitutional Court has the mandate to review constitutional reform projects. The norm differentiates between the ordinary way through Congress, in which case the Constitutional Court reviews those complaints submitted by citizens, and the call of a referendum or constituent assembly, in which case the review by the Constitutional Court is not limited to the individual complaints by citizens, but is all-encompassing. Regardless of the way the constitutional reform is initiated, the Court’s review is procedural only, and not substantive or material (“solo por vicios de procedimiento en su formación”; Article 241). The constituents in the assembly in 1991 wanted a flexible constitution that is open to reform.

In the case of the ordinary route, plaintiffs submit demands (demandas) against a law or reform. In 2005, citizens presented ten complaints against the constitutionality of Uribe’s reform, arguing that it incurred procedural defects in the formation of the legislative act and exceeded the competence of the actors that introduced the reform (“substitution doctrine”).⁵ To begin with the formal complaints, plaintiffs lamented that the authors of the reform had disowned the principle of the separation of powers by having the executive assist in legislative debates; the required first reading in the first committee of the Senate had not met constitutional standards with the absence of the Vice-President of the Senate; an open debate in Congress was suppressed when the President of the Chamber of Representatives had ordered the vote to go forward on 17 June 2004, when opposition members protested with a walk-out; the exact text of the reform was not published 24 hours prior to debate in the Congressional Gazette as is demanded by the Constitution, nor were citizens’ interventions in the debates published in the Gazette; and complaints by fellow representative Germán Navas Talero against Yidis Medina against her last-minute change of opinion were not given sufficient voice in the process (C-1040/05).

The most contentious part of the submissions argued that the reform constituted a substitution of the Constitution. They held that Congress did not have the competence to perform such a reform—only the primary constituent, namely the sovereign people, could invoke original constituent power to draft a reform of such substantive degree. They argued that Law 02 violated this doctrine, because of the absolute prohibition of re-election in Article 197 of the Constitution. In addition, they viewed the principle of equality violated by granting the President the possibility of re-election without according governors and mayors the same prerogative. Finally, plaintiffs argued against a statutory law that empowered the Consejo del Estado to expedite norms in a transitory and supplementary way. The complainants held that Congress holds that power and cannot confer this power to any other institution—much less a judicial institution without powers to legislate. They submitted that this, too, constituted a violation of the doctrine of competence and constituted a substitution of the political charter for which Congress lacked authority.⁶

The Constitutional Court followed the plaintiffs only on the point that the statutory law authorizing the Consejo del Estado with new powers amounted to a partial substitution of the Constitution, while the law enabling a second re-election in itself did not amount to such overreach of competence under the condition that the equality of chances for other candidates would be addressed in a statutory law. The Constitutional Court wanted to have the unfair advantage of a sitting president over his/her opponents minimized. In its entirety, the Court argued:

The essential elements that define a social and democratic system based on the rule of law, [and] on human dignity, were not replaced in this reform. The sovereign people will decide whom to elect to the presidency, the institutions with supervisory or overseer roles in electoral matters completely preserve their powers, the checks and balances system is still operating, the independence of the government branches is granted, the executive branch does not receive new powers, the reform contains rules to reduce the inequality in the electoral competition, which will be enforced by independent entities, and their decisions will continue to be subject to judicial review to protect the rule of law. It is not enough to make historical references suggesting that the drafters of the Constitution had the intention to limit presidential powers, and that therefore an amendment that contradicts that purpose is unacceptable. It is not enough to remark that the reason that may have inspired the drafters of the Constitution to prohibit a presidential reelection is today a valid standard, by which to conclude that the elimination of such a prohibition amounts to a substitution of the Constitution. The historical analysis takes us to the exact opposite conclusion. The Constitution has clauses [and] mechanisms to update the institutional design when the social and political reality requires it. Some people could argue that there is not enough political maturity in Colombia to adopt an immediate reelection scheme; that the reform could take us to scenarios of violent confrontation or institutional instability; or that the powers of the presidency could be used in the reelection project. Such opinions, to the extent that they are not an expression of an objective substitution or destruction of the institutional design, belong to the sphere of political assessments, of timing and convenience, and cannot be a matter to the constitutional judge.

(C-1040/05)

The reform went ahead, and Álvaro Uribe was re-elected President in a landslide victory. In addition, in the legislative elections held two months prior to the presidential elections, Uribe’s coalition increased its representative share in both houses of Congress, while the Liberal Party witnessed a crushing defeat in the elections to the Senate of the Republic. Uribe’s “coalition” in the Senate gained control of 61 out of 100 seats.

Law 1354 of 2009: “By which to Convey a Referendum and Submit a Constitutional Reform to the People” (C-141/10)

Uribe’s second term in office was a turbulent one. The Preside...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of illustrations
• Foreword by Laurence Whitehead
• Acknowledgements
• 1. Introduction: Ethical Legal Discourse in Delegative Democracies
• 2. The Novelty of the 1991 Constitution: A Critical Juncture in Colombia’s History
• 3. The Choque de Trenes between Colombia’s High Courts: Path Dependence and Legal Argumentation
• 4. Discursive Institutionalism in Colombia’s Constitutional Court: The Deliberative Judge and Norm Creation in a Politicized Context
• 5. Conclusion: The Pre-eminence of Democratic Legality over Democratic Security and Discursive Institutionalism
• 6. Epilogue
• Appendices
• Appendix A: Public Opinion and Public Discourse
• Appendix B: Interview Data
• Appendix C: State and State Weakness
• Index