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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Constitutional Court of Colombia (Corte Constitucional de Colombia)

David Landau

Powers and jurisdiction of constitutional courts/supreme courts — Judicial power — Checks and balances

A.  Introduction

1.  The Colombian Constitutional Court is the high court of the country of Colombia on most matters of constitutional law. It was created by the 1991 Colombian Constitution. Since its creation, the Court has become well known for its jurisprudence on a variety of issues, including the right to free development of personality, socioeconomic rights, indigenous rights, the incorporation of international law into domestic law, and the doctrine of unconstitutional constitutional amendments. Some scholars have stated that the Colombian Constitutional Court is the most powerful and influential tribunal in Latin America, and perhaps one of the most powerful high courts in the world (Landau (2010) 343). This entry will first trace the creation, structure, and powers of the Constitutional Court, before turning to its major lines of jurisprudence, and influence within Colombia, Latin America, and the world.

B.  Creation

2.  The Colombian Constitutional Court was created in the Constitution of 1991, which replaced the Constitution of 1886. Under the Constitution of 1886, constitutional powers of judicial review were concentrated in the hands of the Supreme Court of Colombia, which also served as the high court of cassation for the country on ordinary law matters. Colombia has had a long history of constitutional review. The public action device since 1910 has allowed any citizen to challenge any law at any time for abstract review on constitutional grounds. Before 1991, these challenges were heard by the Supreme Court (Cepeda Espinosa 545–47).

3.  The Constituent Assembly of 1991(constituent assemblies) was held in the midst of a profound political and social crisis in Colombia. The persistence of ongoing civil conflict had been worsened by an expansion of the drug trade. The country had recently emerged from the National Front period, in which the two major parties, as an accord to end a period of civil war followed by military government, agreed to rotate the presidency and share most political posts evenly. But attempts at major constitutional reform of the institutional order were repeatedly unsuccessful, and governance structures were seen as unable to cope with social problems, particularly the rising tide of political violence (Fox, Gallón-Giraldo, and Stetson 469–70). For example, the country was governed by the president under some form of state of emergency most of the time in the 1970s and 1980s. Yet these states of emergency were seen simultaneously as both ineffective at dealing with the problem of violence and repressive.

4.  In this environment, a process beginning with a student movement after the assassination of a leading presidential candidate eventually led to the calling of a Constituent Assembly to replace the Constitution of 1886. The conformation of the Assembly was surprisingly pluralist. The two traditional parties each won seats but had to share them with ‘outsider’ parties. For example, a demobilized guerrilla group (the M-19) won the second-biggest block of seats in the Assembly (Fox, Gallón-Giraldo, and Stetson 472–73).

5.  During the Constituent Assembly of 1991, the proposal of then-President Cesar Gaviria (as well as of several individual delegates) contemplated the creation of a specialized Constitutional Court. The motives for creating a new constitutional court were varied. Some of these motives involved the performance of the Supreme Court in its constitutional review powers. The Supreme Court was seen as insufficiently protective of individual human rights but also for blocking some previous attempts at constitutional and institutional reform. Major political forces also favoured a specialized, new institution to enforce a new constitution that would contain many more rights provisions and which was much longer and more complex than its predecessor.

6.  The proposal for a Constitutional Court passed in the Assembly, albeit on a divided vote, and was incorporated into the 1991 Constitution (Cepeda Espinosa 547–52). This new constitution also created other new institutions, such as an independent National Prosecutor’s office and a National Ombudsman (ombudsperson), as well as incorporating important changes to the structure of government (such as new regulations on emergency powers), and a large number of new rights, particularly socioeconomic rights. Designers also maintained two other high courts, the Supreme Court, which now serves primarily as a court of cassation on ordinary law matters, and the Council of State, which serves as the apex court on administrative law matters.

C.  Structure and Powers

1.  Composition and Structure

7.  In its design, the Colombian Constitutional Court has several notable features. First, it has a design for appointments that allows for political influence while making the Court somewhat difficult to pack (selection of judges at constitutional courts / supreme courts). Second, it has a range of constitutional powers that are stronger than those of most courts in the region and the world.

8.  The Court is composed of nine justices elected for eight-year, non-renewable terms. Justices are selected by the Senate by plurality vote from lists of three nominees that are prepared by one of three institutions. The president has control over the three-person lists for three slots on the Court, the Supreme Court has control over the lists for another three slots, and the Council of State has control over the lists for the remaining three seats (Political Constitution of Colombia, Art. 239. This diffuse appointment structure has allowed justices to arrive at the Court with a number of different profiles. Some justices have been members of the career judiciary, while others have had careers in private practice, politics, or academia. The Constitution does not require that the justices be experts in constitutional or public law.

2.  Powers

9.  The Court primarily exercises two kinds of powers. First, the new Constitution retains the public action, which allows any citizen to challenge congressional legislation at any time. These challenges are heard by the entire Court, and are fairly unusual by regional and global standards both in not having a time limit within which challenges must be brought and in allowing any actor (rather than just certain political figures) to trigger demands for abstract review (Political Constitution of Colombia, Art. 241; remedies at constitutional courts / supreme courts).

10.  Second, the Constitution of 1991 contains a new instrument, the tutela, which serves as a constitutional individual complaint mechanism (individual complaints procedures). The tutela serves a similar purpose to the amparo found in many judicial systems throughout Latin America: it allows citizens who have been wronged by concrete acts of state officials (and in some cases private actors) to file suit (Brewer-Carías 147–51). However, the tutela is more rapid and more informal than similar instruments found in most other Latin American systems. According to Art. 86 of the Constitution of 1991, tutela actions must be decided within 10 days at each level of review, and a lawyer is not necessary for a complaint to be filed. Art. 86 also establishes that complaints may be filed against private actors where that actor provides a public service or before whom the complainant finds him/herself ‘in a state of subordination or vulnerability’. Tutela actions are filed in front of the ordinary courts and generally include two levels of review, a first instance and an appeal. However, according to Art. 86 all tutelas are then sent to the Constitutional Court, which then has a wholly discretionary power as to which tutelas it wants to review. Tutelas reviewed by the Constitutional Court are usually heard in front of three-judge panels (Decree 2591 of 1991, Art. 34). The tutela has become an extremely popular instrument—the number of tutelas has risen very sharply since the Court’s inception (Rueda 2010 43–45).

11.  Finally, it is worth noting that certain categories of laws or governmental acts—including emergency decree-laws and international treaties—are automatically reviewed by the Court, without needing to be referred or challenged (Political Constitution of Colombia, Art. 241, paras 7, 10).

D.  Notable Jurisprudence

12.  The Constitutional Court is well known within the region (and globally) for its jurisprudence on a number of different matters. It is impossible to give a full accounting of its work here. However, this section will give an overview of some of the Court’s best-known decisions on liberty and equality, socioeconomic rights, emergency powers, the control of constitutional amendment, and the incorporation of international law.

1.  Rights Jurisprudence

(a)  Rights to Liberty and Equality

13.  Early in its history, the Court issued a number of prominent decisions that relied on the right to free development of personality. For example, in Decision C-221 of 1994, the Court legalized possession of a so-called ‘personal dose’ of drugs, holding that the right to free development of personality and the principle of dignity and autonomy of individuals weighed in favour of allowing individuals to make their own choices, and that these rights outweighed any countervailing state interests. Similarly, in Decision C-239 of 1997, it legalized assisted suicide using the same path of reasoning (euthanasia).

14.  The Court has also exercised an influence on prominent social issues, often stirring controversy in a traditionally Catholic and conservative society. In Decision C-355 of 2006, the Court cautiously legalized abortion in certain circumstances, such as when the pregnancy posed a risk to the life or health of the mother or when the pregnancy was a result of rape (Undurraga and Cook). And in a series of decisions, the Court has promoted rights of same-sex union and marriage (same-sex marriage / registered partnership). In Decision C-075 of 2007, the Court held that same-sex couples must be allowed to enter into marital unions, in fact, a kind of common law marriage (Bonilla Maldonado (2013)). And in Decision C-577 of 2011, the Court held that same-sex couples suffered from a ‘deficit of protection’ because although they could enter into marital unions, in fact, they still were not allowed to formally marry. The Court did not directly order same-sex marriage but instead gave the Congress a two-year window in which to legislate on the issue; if it did not, parties would be free to go directly to notaries to ‘formalize’ their relationships. Because of political resistance, the Congress did not legislate within the designated two-year window. The tutela decision SU-214 of 2016 stated that same-sex couples could now be civilly married by judges and notaries.

(b)  Socioeconomic Rights

15.  The Court is well known for its creative and extensive jurisprudence on socioeconomic rights. First, unlike the judiciaries in certain regional countries like Mexico and Chile, it has consistently held social rights to be justiciable (justiciability). The text of the Constitution left the issue of whether tutelas could be used to enforce socioeconomic rights ambiguous—the text simply held that the mechanism could be used to enforce ‘fundamental’ rights without defining the term (Political Constitution of Colombia, Art. 86). However, the Court held that socioeconomic rights could under many circumstances be enforced via tutela. It did this first by invoking a doctrine of connectivity, under which certain socioeconomic rights could be linked to first-generation rights like the right to life that were clearly enforceable by tutela (Decision T-426 (1992) (Colom)). Subsequently, in Decision T-760 of 2008, it has held that socioeconomic rights like the right to health, in some of their aspects and under some circumstances, are fundamental in their own right.

16.  Second, the Court has developed a conceptual apparatus for the enforcement of socioeconomic rights. Perhaps the most important concept is the doctrine of the vital minimum (right to minimum level of subsistence), which was first used by the Court in Decision T-426 of 1992 and was imported from the jurisprudence of the Federal Constitutional Court of Germany (Bundesverfassungsgericht). The Court held that although not explicit on the face of the constitutional text, one could infer from the socioeconomic rights and other principles (such as human dignity) that individuals had a right not to be deprived of the minimum level of subsistence needed for a dignified life (Rueda 35). A second overarching principle is the social state of right, which is explicitly mentioned as a fundamental principle in Art. 1 of the Constitution of 1991. The Court’s jurisprudence on this principle is highly complex, but in part the Court has held that it requires the state to be organized so as to provide a social welfare net that protects citizens, particularly the most marginalized (social or welfare state). Both principles, then, potentially direct the state to dedicate resources towards social rights, and particularly to prioritize the needs of the poorest citizens. An interesting example of these principles in action is Decision C-776 of 2003, where the Court struck down an attempt to expand the base of the Colombian VAT tax by including a number of goods that had previously been excluded because they were basic necessities. The Court emphasized that the change would burden the social state of law principle and the vital minimum doctrine by disproportionally impacting the poor, and in light of this impact it held that the need for the change had not been adequately justified.

17.  Finally, the Court has experimented with a number of different kinds of remedies for violations of socioeconomic rights. In a large number of tutela cases, the Court has issued individual remedies to citizens who claim they were improperly denied socioeconomic rights like healthcare and pensions. At times, over half of all tutelas filed in the country have sought the enforcement of socioeconomic rights (Landau (2012) 210–11). This kind of jurisprudence is similar to that found in other regional courts such as the Supreme Federal Court of Brazil (Supremo Tribunal Federal), which also has a very active individual jurisprudence on the right to health.

18.  More unusually, however, the Court has also at various points issued structural remedies for widespread violations of socioeconomic rights. The Court’s willingness to issue structural remedies aligns it with a small handful of courts around the world, including the Supreme Court of India, that have experimented with such an approach on socioeconomic issues (Rodríguez Garavito (2011)). In Decision T-025 (2004) (Colom), for example, the Court declared that the state’s failure to implement an effective public policy to protect internally displaced persons (of which there were perhaps 3 million in Colombia) was so widespread as to constitute an ‘unconstitutional state of affairs’. The Court has since retained jurisdiction over the case and issued a large number of structural orders requiring the state, for example, to collect information, take urgent measures to protect particularly vulnerable groups, and develop new programmes. It has also held regular public hearings to which it has invited members of civil society as well as state officials, and it has constituted a Monitoring Commission composed of civil society groups in order to oversee compliance with the decision (Rodríguez Garavito and Rodríguez Franco). In Decision T-760 of 2008, the Court ordered a similar (although more limited) structural remedy for the right to health, a case over which it has also retained jurisdiction and called regular public hearings. In issuing a structural remedy on the right to health, the Court was influenced by the large number of individual tutelas that had been brought on this issue in recent years, and particularly on the negative equity impact of a right to health jurisprudence that only benefitted those with the resources and knowledge to bring suit (Yamin and Parra Vera). One of the Court’s orders in T-760 was for the equalization of the health plans between the ‘subsidized’ regime mainly used by poorer and informal sector workers and the ‘contributory’ regime used by wealthier, formal sector workers. After several years, the government complied and appropriated money to equalize the two plans.

2.  Structural Jurisprudence

19.  The Colombian President historically has exercised extraordinary power over the rest of the political system, both through his independent constitutional powers and through his dominance over the Congress. This section considers two of the most important ways in which the Court has constrained presidential and political power since 1991.

(a)  Limiting Emergency Powers

20.  In the 1970s and 1980s, Colombia was governed under some form of state of emergency regime for the majority of the time (Uprimny 51). These measures were a coping mechanism, both for the country’s escalating levels of violence and for a Congress that was increasingly unwilling and unable to legislate on major national issues. But they also created a sense that government was tyrannical and yet ineffective, since states of siege often did little to lessen the tide of violence. Further, they centralized yet more power in the executive, and indeed in the years preceding the drafting of the 1991 Constitution most major pieces of legislation were promulgated unilaterally by the president.

21.  The drafters of the 1991 Constitution thus sought to limit the use of emergency powers, for example, by limiting their duration and by tying standards to those found in international law. At the same time, they maintained several different instruments, including the State of Internal Commotion and the State of Economic, Social, and Ecological Emergency (Political Constitution of Colombia, Arts 213, 215).

22.  One of the Colombian Court’s most important achievements has been in limiting the use of these powers. Most prominently, the Court has aggressively policed presidential declarations of either of these states of emergency. Its jurisprudence has required that emergency powers only be used in true emergencies, and that measures taken must be proportional to the emergency. Moreover, a reiterated doctrine has held that states of emergency cannot be used to deal with problems that are ‘chronic’ rather than being caused by sudden events. While the Court upheld most emergency declaration in its first few years, it has since partially or completely invalidated most of them (Uprimny 57). The result has been a dramatic fall in the amount of time that the country has spent in an abnormal legal regime. The state of international commotion, for example, has not been successfully used since 2003.

(b)  Controlling Constitutional Change: The Substitution of the Constitution Doctrine

23.  Finally, the Colombian Constitutional Court has developed an aggressive jurisprudence controlling exercises of constitutional amendment (amendment or revision of constitutions). The Colombian Constitution allows amendments to be passed with a relatively easy process, via a simple majority of Congress in one session of Congress and an absolute majority in a second. However, the Court has aggressively policed both the procedures through which amendments are passed and, at least to a degree, their substance. This latter jurisprudence, called the substitution of the constitution doctrine, allows the Court to strike down proposed constitutional amendments if they would replace core principles of the 1991 Constitution. The Court has justified this doctrine by arguing that the power of constitutional replacement is reserved to the people via constituent assembly, rather than to governmental institutions via constitutional amendment (Bernal 342). In adopting this doctrine, the Court has joined a growing group of countries that have embraced some version of a substantive unconstitutional constitutional amendment doctrine. However, along with the Indian Supreme Court, it has been one of the most aggressive courts in actually deploying the doctrine.

24.  The most high-profile cases utilizing the substitution of the constitution doctrine were those involving presidential re-election. Colombian presidents had long faced a strict limit of one four-year term. After winning the election in 2002, however, President Alvaro Uribe gained considerable popularity and political power, largely for his successes in suppressing the threat posed by guerrilla groups. In 2005, Congress pushed through a constitutional amendment allowing re-election for one additional term. In Decision C-1040 of 2005, the Court upheld this measure against charges that it was procedurally invalid and that it constituted a substitution of the constitution. The Court emphasized, however, that it was only upholding the reform as it applied to the allowance of one additional presidential term. Uribe won re-election in 2006. In 2009, Congress again passed a proposed constitutional amendment (this time as a referendum) that would have allowed Uribe to run for a third consecutive term. This time, in Decision C-141 of 2010, the Court held that the amendment was unconstitutional, both on procedural grounds and as a substitution of the constitution. The Court held that allowing three consecutive presidential terms would allow Uribe to exercise so much dominance over other institutions and political minorities that it substituted core principles of the 1991 Constitution. Uribe complied with this decision and left power in 2010 (Dixon and Landau).

25.  The Court has also used the doctrine in a number of other prominent cases. In Decision C-288 of 2012, it upheld a constitutional amendment that established a concept of ‘fiscal sustainability’ and required courts and other actors to take this into account in realizing fundamental rights. However, in the course of upholding the amendment, the Court held that ‘fiscal sustainability’ had to be understood as an instrument in the service of fundamental rights, not as a principle that was on the same level as those rights and could be balanced against them or used to limit them. And in Decisions C-579 of 2013 and C-577 of 2014, as already noted, the Court considered whether the amendments establishing a framework for the peace process with the Revolutionary Armed Forces of Colombia (‘FARC’) were a substitution of the Constitution—it ultimately upheld those amendments.

3.  Jurisprudence Related to the Incorporation of International Law

26.  Art. 93 of the 1991 Constitution provides:

The international treaties and conventions ratified by Congress, which recognize human rights and prohibit their limitation during states of exception, prevail in the internal order. The rights and duties mentioned in this Constitution will be interpreted in accordance with international treaties on human rights ratified by Colombia.

27.  Based on this article as well as other constitutional articles, the Court has constructed the concept of a ‘constitutional block’ (a term earlier used by the Constitutional Council of France (Conseil Constitutionnel) in a somewhat different context). The constitutional block includes, inter alia, those international human rights that cannot be limited during states of exception as well as other human rights treaties ratified by Colombia. The most important principle established by the block is that the Court should choose those interpretations of constitutional rights that best accord with international human rights law (international human rights law and municipal law; application of international law in domestic legal systems). In carrying out this interpretative exercise, the Court has given significant (and sometimes binding) weight to courts and other bodies established by international treaty regimes to interpret and enforce those regimes (Gongora Mera 178–9).

28.  Several of the Court’s major lines of jurisprudence have thus been based largely on international law. An example is the Court’s many cases applying and interpreting a right of indigenous groups to ‘prior consultation’ before major economic projects are undertaken in their traditional territories (rights of indigenous communities). The Court based this right largely on International Labour Organization (‘ILO’) Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries ((adopted 27 June 1989, entered into force 5 September 1991) 1650 UNTS 383), and has used it to strike down laws and block numerous projects that would have encroached on indigenous territories without allowing sufficient prior consultation with affected indigenous groups (Bonilla Maldonado (2006) 228–66). In Decision C-030 of 2008, the Court struck down the Forestry Law in its entirety, because it was likely to have a significant effect on many indigenous peoples throughout the country and yet was not preceded by an effective consultation with the impacted communities.

29.  Another prominent example is the Court’s construction of a detailed jurisprudence on the rights of victims, which has drawn heavily from international humanitarian law. The country’s long-running, low-intensity civil conflict has produced a large number of victims who have been killed, injured, threatened, or displaced from their homes. In Decision C-370 of 2006, the Court used principles of international law to strike down or interpret parts of a law that offered sentence reductions to armed groups that laid down their arms. While generally lauding the purpose of the law, the Court held that parts of it were insufficiently attentive to the rights of victims to truth, justice, and reparations. Recent events have placed the Court’s incorporation of international law on victim’s rights at the centre of Colombian politics. First, in 2011 the Congress passed a Victim’s Law that was important in recognizing those harmed by civil conflict as victims, incorporating the Court’s detailed jurisprudence, and creating new mechanisms for land restitution and other measures (Ley de Victimas, Law 1448 of 2011). Second, beginning in 2013 Colombian President Juan Manuel Santos has pursued peace talks with the FARC. The Court has played a major role in that process. In Decisions C-579 of 2013 and C-577 of 2014, it has twice reviewed (and upheld) packages of constitutional amendments creating a legal framework for transitional justice against charges that they constituted a substitution of the constitution because they were insufficiently protective of victims’ rights.

E.  Domestic and International Impact

30.  The Court’s aggressive jurisprudence, particularly on hot-button social issues, on socioeconomic rights, and on presidential power, has made it a consistently central player in the Colombian political system. The Court’s public hearings in major cases like the healthcare system and the peace process have often been very widely covered events in the media and by the public. In addition, some major aspects of the Court’s jurisprudence have made their way into political discourse and the actions of other branches. An example is the Victim’s Law mentioned in Part C. Finally, the Court’s instruments, and particularly the individual complaint or tutela, have proven increasingly popular through time. Many of these tutelas are on socioeconomic issues like health and pensions.

31.  The Court’s centrality has made it a frequent object of attack, both from sitting presidents (most presidents since 1991 have proposed some significant attacks on the Court) and from the other high courts (the Supreme Court and Council of State), which have at times clashed with the Constitutional Court over who has the final word in ordinary legal cases that raise constitutional concerns. However, most of these attempts to curb the Court have failed, perhaps because of the popularity and importance of the tutela. In 2002, for example, a set of proposed amendments by the administration of President Uribe that would have weakened the tutela and the Court’s ability to review states of emergency were foiled after they received a chilly reception from the public and in Congress (Merhof 728–30).

32.  Internationally, the Court has been recognized for its activism and important contributions to jurisprudence on a number of issues treated here, including socioeconomic rights, control of constitutional amendments, indigenous rights, and the right to free development of personality. It has been noted, in particular, as one of the leading courts in the ‘global south’, along with the tribunals of India and South Africa (Bonilla Maldonado (2013) 21). It has also emerged as arguably the leading constitutional court of Latin America, and its decisions have influenced other courts and scholars within the region. An important example is the Brazilian Supreme Federal Tribunal’s adoption of the ‘unconstitutional state of affairs’ doctrine in a case involving prison conditions in 2015 (Lirio do Valle 2015).

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