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I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part VI: Explaining the Institutional Role of the Colombian Constitutional Court

[Editor’s Note: This is Part VI in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, Part II is available here, Part III is available here, Part IV is available here and Part V is available here.]


–Diego González, Professor of Constitutional Law at Universidad Externado de Colombia

The standard opinion suggests that the significance and the very power of the Colombian Constitutional Court (CCC) is a consequence of having dysfunctional legislative bodies and weak administrative agencies. According to this, the CCC is a central player in the political system as long as it has attempted to approach some of the black holes left by the political branches, created by either the lack of political will or by dysfunctional public policies. This article contends that this is only partially true. Other sets of reasons can help explain why the CCC has developed as it has. This paper I presented at the Externado Symposium explores four arguments: historical, normative, conceptual and practical.

The first concerns the history of constitutional supremacy and judicial review in Colombia. The second, the normative design of the 1991 Constitution. The third, the CCC’s conception of the Constitution and of its own role. The last, the CCC’s case law on the protection of rights. The conceptual and practical arguments are based on the CCC’s 1992 case law.

The historical argument contends that there are at least three historical factors that shed some light on the establishment of the CCC in the 1991 Constitution and its subsequent central role within the political system. First, Colombia had a long tradition of constitutional supremacy and judicial review, which dates back to the very first constitutions in the XIX century; so, up to 1991, the Colombian institutions and the citizens were familiarized with this. Second, the very creation of the CCC was at stake since 1958; so until 1991, debating about this institution had been common place within the political sphere. The introduction of the CCC into the political system was one of the most “waited and anticipated” innovations of the 1991 Constitution. Third, in the decades prior to the creation of the CCC, the Supreme Court of Justice had an active role in controlling constitutional amendments and the extraordinary powers. Undoubtedly, these factors paved the way for the forthcoming role of the CCC.

The normative argument explores both the normative nature of the Constitution and the normative design of the CCC. From the normative nature of the Constitution, I claim in my paper that because of the extension of the 1991 Constitution, the CCC has “a lot to care about or to guard”; in other words, the CCC can conceivably have something to say at virtually every political and legal decision. Due to the principle-oriented style of this Constitution, the CCC has a huge space for constitutional interpretation and law-making in order to make concrete the abstract constitutional provisions. Given its regulatory character, it practically turns any public policy matter into a constitutional debate, under the scrutiny of the CCC. In sum, the blending of these factors reveals, in my opinion, that the normative design of the 1991 Constitution noticeably propitiated the protagonist role of the CCC. From the normative design of the CCC, this article argues that, because of the broad mandates of this body, the Court is able to intervene in a wide range or political and legal decisions. Finally, I explain in my article that the Acción Pública de Inconstitucionalidad (API) and the Acción de Tutela (AT) bring the Constitution closer to citizens, reinforce constitutional supremacy, and channel social discontentment and expectations.

The conceptual argument explores the CCC’s conception both on the Constitution and on its own institutional role. This argument is based on the 1992 CCC’s case law. First, the CCC has mainly understood the 1991 Constitution as aspirational rather than conservative. According to this, the Constitution is “objectives, goals and action programs that can eventually translate into rights to different economic, social and cultural benefits.” Second, the CCC had a very particular conception of its own institutional role to “guard the Constitution” from early days. The CCC understood its own role both (i) as a transformer and also (ii) as a leveler Court of Law. As a transformer, the CCC has definitely proclaimed as a promoter of transformation of both (a) the legal system and also (b) the society. As a leveler, the CCC has committed itself to make visible both (a) disadvantaged population and (b) ordinary cases, which never before came up to the judiciary.

Finally, the practical argument contends that, in 1992, the CCC paved the way to develop a very rich case law on the judicial enforcement of civil and political rights, social rights, and collective rights. This argument highlights the important developments of the CCC on the protection of individual freedom and its first attempts to intervene on policies regarding distributive justice under the protection of social and economic rights.

Suggested Citation: Diego González, I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part VI: Explaining the Institutional Role of the Colombian Constitutional Court, Int’l J. Const. L. Blog, Nov. 6, 2018, at: http://www.iconnectblog.com/2018/11/i-connect-symposium-contemporary-discussions-in-constitutional-law-part-vi-explaining-the-institutional-role-of-the-colombian-constitutional-court

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Published on November 6, 2018
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