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The Colombian Model of Judicial Review of Legislation: A Predecessor to the Austrian Constitutional Court of 1920

Mario Alberto Cajas Sarria, Universidad Icesi, Colombia[1]

It is 100 years since the creation of the Austrian Constitutional Court (October, 1920), which gave rise to the “Austrian Model” of judicial review of a concentrated and specialized Constitutional Court,[2] that spread across Europe with its adaptations and migrated to other continents[3].

On this Centenary, it is also worth remembering an institutional experience much less known in comparative law, but which actually predated the Austrian model. This is the judicial review of legislation exercised by the Supreme Court of Colombia since  Legislative Act 03 of 1910. The constitutional amendment established the Public Action of Unconstitutionality (actio popularis) and assigned the Court jurisdiction to determine the constitutionality of laws and decrees upon being challenged by any citizen. Thus, the Supreme Court, which was a Court of Cassation and the highest judicial body in Colombia, acquired the functions of a “Constitutional Court” (CC) before the distinguished legal scholar Hans Kelsen created the Austrian model.

The Public Action of Unconstitutionality (PAU) emerged at a critical juncture in the political regime. The Conservative government of General Rafael Reyes (1904-1909) came into tension with Congress and decided to close it in 1905. In reaction to the dictatorship, a faction of the Conservative Party and the Liberal Party formed the Republican Union. Forced by the opposition, Reyes reopened the Congress in 1909. Republicans won a majority in the House of Representatives, although the Senate remained favorable to the government. After the president resigned and left the country, the Union consolidated its triumph: it achieved the call for a National Constituent Assembly and won the majority in it. The republican ideology sought to restore limits to political power and passed the constitutional amendment of 1910. With the PAU, the Supreme Court became the “guardian of the Constitution.”[4]  

The creation of the PAU in 1910 did not mean the automatic acceptance – or adaptation – of the Supreme Court to its new role, especially in matters of high political tension. For example, using a textual interpretation of the meaning of “laws” of the constitutional clause of its competence, the Court decided in 1911 that it had no jurisdiction to decide the unconstitutionality claim filed by a minister of the government of Carlos E. Restrepo -who acted as a citizen – against a law that created expenses, promoted by the Congress and led by Conservative Senator José Vicente Concha. Restrepo had radically opposed the bill of law because it was against his policy of fiscal austerity and had also vetoed it on the grounds that Congress had processed it in violation of legislative procedure. The Court responded that its jurisdiction only covered laws and not bills, so it could not adjudicate procedural defects when  creating a law. It also argued that this kind of judicial review would adversely affect the sovereignty of the legislature.

The same deference occurred after a 1910 claim by an ex-member of the Constituent Assembly against the 1914 law by which Congress approved the Urrutia-Thompson Treaty, which settled the differences between the United States and Colombia due to the former’s intervention in the separation of the then-department of Panama in 1903. This was undoubtedly a matter of the highest national sensitivity that had exacerbated internal political tensions. The Court decided that this “type” of law escaped its competence, and that it could not interfere in the functions of the Legislative and Executive branches in relation to the approval of international treaties.

In fact, the Court was so deferential in these early years that it actually asked Congress to repeal the PAU because it considered that the judicial review of legislation would illegitimately “challenge” the sovereignty of the legislature. Fortunately, Congress did not process the request. Shortly afterwards, the Court became more aware of the institutional – and political – significance of its role.   

At the beginning of the 1950s, voices that were critical of the “Colombian model,” which was a type of mixed system, emerged. The centralized judicial review of the Supreme Court under the PAU coexisted with other constitutional functions assigned to the Council of State and the Contentious-Administrative Courts, and there was even the exception of unconstitutionality according to which any court could invoke the constitution as a reason not to enforce a rule of a lower hierarchy that was deemed unconstitutional. These features led some to refer to the system as complex and even “confusing.” The bipartisan confrontations of the Liberal and Conservative “hegemonies” during the first half of the 20th century, which involved the Court, also contributed for calls to replace Colombia’s mixed system with the “European model.”

For example, in 1952 the legal scholar Eustorgio Sarria proposed a Court of Constitutional Guarantees like that of the Constitution of the Second Spanish Republic of 1931 (CCG),[5] which, according to him, could be made up of representatives of the three branches of the public power and the Law schools. Sarria considered the Colombian model to be “anti-technical” and argued that it exposed the Court to politicization.[6]   

In 1953, General Gustavo Rojas Pinilla proposed to replace the judicial review of the Supreme Court because he said it was “anti-technical” and caused delays, and instead to install a CCG made up of justices appointed by him. The initiative did not prosper, but in 1956 Rojas issued a state of siege decree and created a Chamber of Constitutional Affairs within the Court itself, which he was a member of along with justices from other chambers of the corporation. Rojas added to his previous arguments a new one related to the tendency of the “more advanced countries, “which he argued had specialized Courts. The Chamber was in charge of judicial review, instead of the Plenary Chamber of the Supreme Court, until the transition from the military regime to the civilian government in 1958.

In the constitutional amendment of 1968, a specialized and centralized constitutional court inspired by the “European model” was proposed, particularly from Italy and Germany. Its promoter, the senator and legal scholar Carlos Restrepo Piedrahita, sought to improve a “confused” and not very technical system. The bill reached several debates but fell through in Congress. Critics of the proposal sought to defend the “Colombian tradition of judicial review,” and rallied against a perceived risk to judicial independence gained in 1957 with changes that allowed Supreme Court justices to serve for life and, in a system known as cooptation, allowed them to select their own successors. The new body, instead, would be selected with the intervention of the Executive and the Legislative branches, and its judges would serve for limited terms. In the end, the consolation prize was the creation of a Constitutional Chamber within the Supreme Court, which would be in charge of writing drafts of rulings for the study and decision by the full chamber. This model survived until 1991.

In the 1970s, legal scholars -and also the government- continued talking about the need to create a Constitutional Court for Colombia. The idea was announced in the 1976 proposal for a “small Constituent Assembly,” which the Supreme Court declared unconstitutional in 1978. The 1979 constitutional amendment did not create a Constitutional Court but did strengthen the Constitutional Chamber. However, this amendment was also declared unconstitutional by the Supreme Court in 1981.

Initiatives were also heard and there were academic debates about the creation of a Constitutional Court during the eighties. The aforementioned decisions and other ones from the Court that affected the Executive branch seemed to create more supporters for the change, both on the part of legal scholars and politicians; though with the opposition of sectors such as the Supreme Court itself.

In the 1991 Constituent Assembly the government proposed a Constitutional Court, and this was approved despite the opposition of the Supreme Court and some other voices. However, the Constitution made a local adaptation by maintaining a large part of the “Colombian model.” Colombia retains the public action that it has now had for more than a century, where any citizen can challenge any law on abstract review. The new constitution also maintained elements of a “mixed system” – residual control of constitutionality by the Council of State, the role of the administrative courts, and the exception of unconstitutionality.

Summarizing, this brief review of the Colombian judicial review of legislation shows us a creation prior to that of the valuable CC model devised by Kelsen in 1920. Likewise, it shows the continuous tensions between the validity of local design and the temptations of switching to the European “legal technology.”

In the last decade, projects of judicial reform have been attempted that have focused on the High Courts. The reasons to propose them intermingle real problems of the institutional design of those corporations, scandals that have plagued some of their members, rulings adverse to political sectors, and also tensions between the Judicial and the Executive branches. Some initiatives today propose the convening of a constituent assembly to amend the justice system, and even the unification of Courts into a “single court.”[7] Hopefully in this reformist environment, the rich history of Colombian justice will continue to be given due weight.

Suggested citation: Mario Alberto Cajas Sarria, The Colombian Model of Judicial Review of Legislation: A Predecessor to the Austrian Constitutional Court of 1920, Int’l J. Const. L. Blog, Nov. 18, 2020, at: http://www.iconnectblog.com/2020/11/the-colombian-model-of-judicial-review-of-legislation-a-predecessor-to-the-austrian-constitutional-court-of-1920/


[1] This entry is based on several of the author´s publications on the history of Colombian judicial review.

[2] See: Anna Gamper, The Centennial of the Austrian Federal Constitution, Int’l J. Const. L. Blog, Oct. 1, 2020, at: http://www.iconnectblog.com/2020/09/the-centennial-of-the-austrian-federal-constitution.

[3] See: Alfonso Herrera García: IberICONnect (28/10/2020) 100 años del Tribunal Constitucional austriaco: ¿Kelsen vive? Retrieved from https://www.ibericonnect.blog/2020/10/100-anos-del-tribunal-constitucional-austriaco-kelsen-vive/.

[4]A history of the trajectory of the Supreme Court as a “Constitutional Court” since 1910 in: Mario Cajas: La historia de la Corte Suprema de Justicia de Colombia, 1886-1991, Universidad de los Andes 2015, Vols. 1-2. 

[5] On the influence of the 1920 Austrian Constitution on the 1931 Spanish Constitution, but also the influence of the Mexican model in the CCG, see  Xabier Arzoz, ‘Spain and the 1920 Austrian Constitution’ IACL-AIDC Blog (27 October 2020) https://blog-iacl-aidc.org/100th-anniversary-of-the-austrian-constitutional-court/2020/10/27/spain-and-the-1920-austrian-constitution.

[6] “La Corte Constitucional del general Gustavo Rojas Pinilla: entre el Tribunal de Garantías Constitucionales y la Sala de Negocios Constitucionales. Colombia, 1953-1957” (“The Constitutional Court of General Gustavo Rojas Pinilla: between the Court of Constitutional Guarantees and the Chamber of Constitutional Affairs”, Historia Constitucional 17, 2016:    http://www.unioviedo.es/historiaconstitucional/index.php/historiaconstitucional/article/view/464.

[7] See:  https://www.eltiempo.com/politica/congreso/alvaro-uribe-por-que-el-senador-volvio-a-hablar-de-la-propuesta-de-una-corte-unica-523512; https://caracol.com.co/radio/2020/11/01/nacional/1604264335_207114.html.

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Published on November 19, 2020
Author:          Filed under: Analysis
 

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