[Editor’s Note: This is Part III in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, and Part II is available here.]
–Andrés Mauricio Gutiérrez Beltrán, Constitutional Law Professor, Universidad Externado de Colombia
Many academics assert that courts are powerful political actors. According to the dominant view, courts have the last word on moral controversies, they introduce new topics on the political agenda, they encourage social activists to stand up for their rights, they convince societies of the ethical value of these demands and they can even decide who becomes president[1] (E.g. Bush v. Gore).
Colombia is no exception. We think that the Colombian Constitutional Court (CCC) is a very powerful agent in Colombian society. Actually, from a certain perspective it is. For example, the Court has prohibited the presidential reelection of one of the most popular politicians in recent history. Despite the evident conservatism in our society, the Court has handed down decisions that contradict religious and moral dogmas. For instance, the Court invalidated provisions that prohibited abortion, euthanasia and the use of drugs. Therefore, it is easy to understand why scholars like David Landau claim that the CCC is today the most powerful court in the world[2]. Well, I am afraid that we should think twice before taking this as a compliment.
And yet the CCC has suffered several defeats as political actors have often refused to comply with its order. The judgement T-478 of 2015 is an emblematic example of this situation. In Sergio Urrego’s case, the Court ordered the review of every single Code of Conduct in schools across the country to ensure that they do not violate the rights of LGBT students. The decision provoked a massive mobilization of conservatives concerned with the moral education of children. The mobilization was so strong that the policy designed by the Ministry of Education to fulfill the order was suspended. The education minister, a gay person who had done an outstanding job at the Ministry, lost her job because of the protests.
The Court has tried also to enforce in vain the right to abortion. Despite the insistence of the Court, clinics, doctors, health companies and even judges have been reluctant to follow the precedents. There is a decision that shows the seriousness of this problem in a particularly clear way. The decision T-025 of 2004 that declared the existence of an unconstitutional state of affairs due to the forced displacement in Colombia[3]. In this decision, the Court aimed to restore the rights of more than 3.6 million people by ordering the correction of the main failures of the public policy designed by the executive and legislature. Many scholars have studied the impact of this order and there is no consensus among them about its effects. Defenders argue that in spite of the problems that still face the refugees, there are plenty of positive effects that need to be considered, including the increased budget allocated for displaced people, the inclusion of this issue in the country’s political agenda, the change of people’s opinion about the internal conflict and about the displaced people.
Nevertheless, the living conditions of displaced people are still very disturbing. The number of victims of this crime has doubled since the unconstitutional state of affairs was declared. Today, according to official figures, there are more than 7.7 million people living in these conditions. Despite the remarkable increase of the budget, 66,2% of households have not received any sort of aid from the government. And just 0,5% of these households has received all the services offered by the authorities. The figures related to poverty reveal the limits of the Court’s power: 97.6% of displaced people live in poverty and 78,8% live in conditions of desperate need.
This is why I resist affirming that the CCC has transformed internal displacement in the country.
These realities should make us reconsider the capability of the CCC to promote social change. They also compel us to reevaluate how assess compliance with judicial orders.
This subject has been widely studied in the United States. There are two opposing perspectives that have addressed this issue. Neo-realism and constructivism. The first claims that compliance must be determined according to the capacity of the court to change the behavior of the authorities. Therefore, the fulfillment of a judicial order depends exclusively on the actions carried out by officials of government. Even more, the impact of the orders must be established based on the real changes they produce in the lives of victims. In accordance with this view, the judgement T-025 of 2004 has failed in its purpose of reestablishing the rights of displaced people.
On the other hand, constructivism analyzes all the effects produced as a result of judgments. In the view of these scholars, even a defeat could be considered – in the long term – as a victory. When it is used by the victims as a demonstration of the serious situation they are facing, this defeat could yield future victories. Constructivism asserts that it is necessary to consider all the symbolic and indirect effects created by judicial orders when assessing compliance. There is no wonder why according to this view the T-025 is a complete success.
These two perspectives are misguided. Neorealism takes a very narrow view of law and social change. It assumes that there is a straight line between courts and social life, and that the public approval of a judgment is enough to provoke changes in society.It ignores the importance of other factors that influence compliance with these orders. For instance, neorealism overlooks the changes in popular opinion and, they do not consider how courts may persuade communities to support changes in favor of minorities.
Constructivism, on the other hand, makes the opposite mistake. When taking into account all the effects produced by its judgments, the Court loses its focus on victims.
Consequently, the Court considers a large bunch of effects that only partially regard the victim’s perspective. This is why decisions like the T-025 can be regarded as a success when it has failed in its purpose of promoting social changes.
It is necessary to adopt an eclectic perspective in order to properly assess the effects of judicial orders. In my work, I call this view a complex perspective with emphasis on victims. It takes into account all the changes that produce (effective?) judgments. Yet it also emphasizes the changes produced in the living conditions of the victims. For if a certain consequence (be it indirect or symbolic) does not provoke a tangible change in the life of victims, one cannot affirm that the decision has brought positive effects to them.
This perspective may help courts to assess accurately compliance with their orders and could be used to design remedies that exert a positive influence on the lives of victims.
Suggested Citation: Andrés Mauricio Gutiérrez Beltrán, I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part III: How Efficient is the Colombian Constitutional Court in Promoting Social Changes?, Int’l J. Const. L. Blog, Nov. 3, 2018, at: http://www.iconnectblog.com/2018/11/i-connect-symposium-contemporary-discussions-in-constitutional-law-part-iii-how-efficient-is-the-colombian-constitutional-court-in-promoting-social-changes
[1] Ran Hirschl proposes some interesting examples of this growing judicial tendency in The Judicialization of Mega-Politics and the Rise of Political Courts, in Annual Review of Political Science, Vol. 11, 2008.
[2] David Landau, Political Institutions and Judicial Role in Comparative Constitutional Law, in 51 Harvard International Law Journal 319 (2010)
[3] The unconstitutional state of affairs is a doctrine created by the CCC to address systemic violations of human rights. In these decisions, instead of ordering the restoration of the individual rights infringed, the Court orders the implementation of a public policy in order to solve the structural problems that gave rise to these individual violations.
Comments