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A New Judge for the Colombian Constitutional Court: The Tensions of Transition

Jorge González Jácome, Pontificia Universidad Javeriana (Bogotá)

One of the most heavily publicized processes of nomination and appointment to fill a vacancy on the Colombian Constitutional Court ended last week with the Senate’s selection of Alejandro Linares. He outvoted the other two candidates, Catalina Botero and Magdalena Correa, and became the ninth judge of the Court. According to the Constitution, the Colombian President had to create a list of three candidates from which the Senate had the power to choose the new justice.[1] President Juan Manuel Santos held a relatively open process, listening to members of the legal academia and profession before proposing his list to the Senate. Linares, the only male candidate in the list, easily won the Senate vote. The other two candidates, Botero and Correa, were both constitutional law professors who had past experience as clerks on the Constitutional Court. Botero had also been a Reporter for Freedom of Expression at the Inter-American Commission of Human Rights. Correa is the head of the Constitutional Law department at one of Bogotá’s most prestigious law schools — Universidad Externado de Colombia.[2]

Linares, in contrast, came mainly from private practice; he also served as a public official but his foremost experience was in finance law, especially as the head of the mergers and acquisitions area of one of Bogotá’s most prestigious private law firms.[3] The constitutionalists Botero and Correa lost in a landslide. Linares gained the support of the political parties of the governing coalition, the National Unity of President Santos. The two female constitutional scholars lost after an interesting hearing in the Senate where they stressed their experience on constitutional issues. Linares also spoke before the Senate and made a peculiar statement: he argued in favor of bringing back “private law pragmatism” to constitutional matters.[4]

This election raises many important issues in constitutional law and politics. The role of gender is difficult to ignore, but I would like to focus on another aspect that highlights the ideologies permeating the current constitutional debate in Colombian society about transition and peace agreements. Of course, one of the huge topics in this area has to do with the mechanism to ratify agreements on transitional justice between the government and the rebels. In reviewing these issues the Court definitely will have to strike a delicate balance between international human rights and the resolution of a five-decade-long conflict.[5]

But the constitutional debate during the Colombian transition goes beyond mechanisms of transitional justice. Another set of key issues in this transition has to do with land restitution and, in general, with the social and economic conditions that have allegedly triggered conflict during past decades. It is here where Linares’s “private law pragmatism” may push the political dimensions of constitutional adjudication to the right of the political spectrum – i.e. to a non-redistributive project. The Constitutional Court recently issued a remarkable decision regarding land restitution; it declared the unconstitutionality of an article of the agrarian reform law of 1994. The law allowed, for example, peasant communities to go before an administrative agency and claim that they had been legitimate possessors of the land for years without any action by the title holder. The agency would then start an administrative procedure to expropriate the land and give title to the peasants. However, the law also stated that if someone filed a lawsuit challenging the administrative expropriation and adjudication before an administrative judge, the administrative action would be automatically suspended. Considering the very slow pace of judicial administration in Colombia, especially in the field of administrative law, these lawsuits had become the mechanism to effectively prevent land redistribution. Peasants occupying the lands for decades would start an administrative procedure and a capitalist who had the title would then appear challenging the adjudication. The maneuver would delay the process, sometimes for decades.[6] The Court struck down the article mandating these automatic suspensions.

The Court made a couple of interesting arguments in declaring the unconstitutionality of the automatic suspension. First, the majority opinion stated that legislative rules could not automatically suspend a decree of the executive branch. Only the administrative judge could make this determination, on a case-by-case basis. Second, and particularly interestingly, the Court said that the automatic suspension “significantly limited the social function of property, concretely, the possibility for the state to dispose of goods for the purpose of contributing to the dignity of life of the workers in the countryside [as well as] developing an agrarian policy directed to distribute those goods among the rural population and other social groups in vulnerable situations.”[7] The opinion speaks directly to the moment of transition and the need to establish redistributive projects to overcome conflict. The Court was trying to take the idea of social function of property seriously as a basis for a transitional constitutional jurisprudence.

Linares’s “private law pragmatism” is a meaningful term in the context of this debate. Since the promulgation of the 1991 Constitution and the landmark decisions handed down by the Constitutional Court in the 1990s and 2000s, private law scholars and jurists have seen their domain threatened by the constitutionalization of their field of study.[8] For example, in a decision strongly rejected by corporate law practitioners, the Court stated that a parent corporation was also responsible for the debts of its subsidiaries in case of unpaid retirement pensions.[9] But perhaps one of the most paradigmatic decisions declared the unconstitutionality of the financial scheme adopted by private banks, through which they lent money at an extraordinarily high interest rate to people seeking to buy houses.[10] Some private law jurists reject this constitutionalization while others believe that constitutional principles should influence their field but only with greater caution, since the logic of constitutional law is different from private law. In general, the pragmatism of private law in Colombia has meant the predominance of individualist aspects and the downplaying of more socially oriented approaches to private law.[11] If the constitutional law of the 1990s and 2000s represented a redistributive project in Colombia,[12] many private law jurists and practitioners are wary that redistribution is invading a domain that should be fundamentally governed by private autonomy, equality of the parties and, perhaps, efficiency. Private law pragmatism might mean, in Colombia, a turn away from the more redistributive edges of constitutional law and the social dimensions of private law.

The Colombian Constitutional Court has surprised comparative constitutional law scholars in the last twenty-five years for remarkable opinions that have creatively used judicial power to influence policymakers, especially in the realm of the adjudication of social and economic rights. However, in recent years, analysts are worried that the Court is moving to the right, largely due to the different profile of the new judges who are more conservative and less academic.[13] Meanwhile, the media in Colombia has announced that Linares is a judge for transition and peace.[14] But the main issue is whether the Court will start drifting towards a less redistributive transition inspired by “private law pragmatism” or, in other words, the privatization of constitutional adjudication.

Suggested citation: Jorge González, A New Judge for the Colombian Constitutional Court: The Tensions of Transition, Int’l J. Const. L. Blog, Nov. 13, 2015, at: http://www.iconnectblog.com/2015/11/a-new-judge-for-the-colombian-constitutional-court-the-tensions-of-transition/


[1] The Colombian Constitutional Court is formed by nine judges –magistrados- who sit on the court for eight year non-renewable terms. When there is a vacancy, the President, the Supreme Court of Justice (the high court on private, criminal and labor law) and the Council of State (the high administrative law court) take turns in creating a list of three candidates that are presented to the Senate. For the vacancy analyzed in this piece, it was the President’s turn to select three candidates and nominate them before the Senate. In the past, these processes of composing lists were fairly non-transparent. However, this process that ended with Linares’s selection was more public and closely monitored as can be seen at http://eleccionvisible.com/index.php/eleccion.

[2] For Botero’s CV, see http://wp.presidencia.gov.co/AspirantesCargoCorte/Catalina_Botero.pdf. For Correa’s CV, see http://wp.presidencia.gov.co/AspirantesCargoCorte/Magdalena_Correa_Henao.pdf.

[3] For Linares’s CV, see http://www.eleccionvisible.com/files/2013/CV%20Alejandro%20Linares%20Cantillo.pdf

[4] For a synthesis of the three interventions of Botero, Correa and Linares before the Court, see http://lasillavacia.com/historia/alejandro-linares-el-favorito-del-senado-para-la-corte-52286

[5] In fact, the Constitutional Court has already declared the constitutionality of a general framework to carry on these negotiations called the Marco Jurídico para la Paz. For the Judgment see Decision C-577/2014, M.P. M.V. Sáchica, available at http://www.corteconstitucional.gov.co/RELATORIA/2014/C-577-14.htm .

[6] This has been the legal issue in an emblematic case about land restitution in “Hacienda las Pavas”. See http://lasillavacia.com/historia/las-pavas-colgadas-de-pretelt-50484 .

[7] Corte Constitucional, Comunicado de Prensa No. 44, Septiembre 30 de 2015, available at http://www.corteconstitucional.gov.co/comunicados/No.%2044%20comunicado%2030%20de%20septiembre%20de%202015.pdf.

[8] This was evident in a Congress organized at a traditional law school like Universidad Javeriana about the Constitution and private law on October 2 and 3, 2013. Private law professors, generally, saw the constitutionalization of their field as an aspect that was bringing chaos to their traditional realm, and thus decried many opinions of the Constitutional Court. For a more nuanced and analytical approach to the issue, see Juan Jacobo Calderón Villegas, La Constitucionalización del Derecho Privado (Bogotá: Universidad de los Andes Press, 2011).

[9] For a criticism of the Court’s judgments in this regard see: Francisco Reyes Villamizar, 8 Revista Criterio Jurídico 65 (2008).

[10] Decision C-955/2000, M.P. J. Hernández.

[11] An example of social orientation in contract law is Mariana Bernal Fandiño, El Deber de Coherencia en el Derecho Colombiano de los Contratos (Bogotá: Editorial Pontificia Universidad Javeriana, 2013).

[12] Although one might criticize if it has reached the more marginal sectors it actually has produced a revolution in the middle class. See David Landau, The Reality of Social Rights Enforcement, 53 Harvard International Law Journal 189 (2012).

[13] On the relationship between academics and progressive positions in the Court see Santiago Pardo & Ariadna Tovar, Relevo en la Corte Constitucional. ¿Quién reemplazará a Henao?, available at  http://www.razonpublica.com/index.php/politica-y-gobierno-temas-27/3084-relevo-en-la-corte-constitucional-iquien-reemplazara-a-henao.html.

[14] Alejandro Linares. Un magistrado para la paz, El Espectador, Nov. 4, 2015, available at http://www.elespectador.com/noticias/politica/alejandro-linares-un-magistrado-paz-articulo-597099.

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Published on November 13, 2015
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