Sentencias de constitucionalidad en Colombia: ¿un caso de vanguardia o de transplante jurisprudencial?
| Autor | Liliana Lizarazo-Rodríguez |
| Cargo | University of Ghent, Ghent, Belgium |
| Páginas | 145-182 |
Page 147
Colombia is mentioned, togetherwith the United States (US), Uruguay, Argentina and Mexico, as one of the first countries worldwide to adopt the judicial review as a means for adjudicating on the constitutionality of legislation.12 In recent years, particularly since the enactment of the Politi-cal Constitution of 1991 (P.C.), the Colombian Constitutional Court is mentioned as a notorious example of judiciary activism in terms of legislating by means of its judicial review sentences with erga omnes effects, as well as through Actions of Protection of Fundamental Rights (A.P.F.R.).3 Even though the constitution did not conceive judicial review as a source of law, it is viewed as a political competence with limited negative legislative effects when it nullifies a law, but lacking the competence to create new legislation. However, the Constitutional Court has been accused of usurping legislative competences through interpretation,4 primarily through the discretionary
Page 148
use of conditioned decisions and the adoption of interpretation techniques borrowed from common law, such as precedent analysis.
According to Cepeda, the Constitutional Court has adopted a practice of conditioned ("modulated") decisions whereby instead of striking down a law altogether, it upholds a provision under the condition that "only some ... interpretations are valid, while others are unconstitutional and must be rejected".5 These conditioned rulings have been used "in a discretionary way",6 which not only has the effect of changing the contents and effects of legislation over time, but also changes the rules of constitutional adjudication because this practice is not based on any explicit constitutional competences granted by the P.C. (241) but on the practice of other Constitutional Courts.7
The Colombian Court has also adopted methods of interpretation gener-ally associated with common law, such as the technique of precedent analysis, which sometimes has been criticized because the Court apparently did not fully take into consideration its implications and theoretical developments,8 although it has also sometimes been defended (when used as in the US).910 This is not unique to Colombian constitutional case law. The absence of precedents in civil law systems is often considered a source of instability in some areas of legal practice.1112 An informal structure of precedents is sometimes promoted in civil law countries in order to improve legal certainty in areas where it cannot be attained through codification, to increase judicial productivity (caseload management), to reduce the vagueness of statutes and general principles, and to decrease the number of disputes and legal
Page 149
costs.13 These practices, more than a case of 'legal transplant'14 are rather a 'case law practice transplant' in which the level of acceptance or rejection depends on the amount of judicial discretion.15
Judicial discretion is considered a differentiating feature among legal systems. It is widely accepted that common law systems offer a large de-gree of judicial discretion whereas civil law countries privilege "legislative rulemaking".16 Unlike the US, European legal systems tend to limit judicial discretion and to protect legal formalism. However, economic integration and globalization are phenomena that favor the expansion of judicial discretion and increase the relevance of other schools of thought such as legal pragmatism.17 Another perspective presents the globalization of the law as a phenomenon in which some countries are places of "production" of legal thought and others are places of "reception";1819 this reception mainly oc-curs through foreign citation and "case-law transplant".
This article reviews the international literature on the development of judicial review and outlines judicial review in Colombia within this global context. In addition, it presents the literature on contemporary methods of constitutional adjudication and assesses whether the Colombian case is actually as unique and avant-garde in this regard as is sometimes claimed. Finally, international literature that highlights the institutional limitations of judicial activism in less developed countries is briefly reviewed, focusing on how said limitations affect the way legal theories are applied by the judiciary and the way constitutional adjudication is evaluated.
Page 150
The establishment of judicial review in the US20 at the beginning of the 19th century had an important impact in Latin America, although not immediately. Neither was it the only influence, given that the 'constitutional court' model formulated by Kelsen early in the 20th century was also relevant. In Kelsen's view, any indeterminacy of the Constitution was a matter to be resolved by the legislative, and not by the judiciary, and principles were thus excluded from adjudication. This supremacy of the legislative was not shared by the US System which gave supremacy to the judiciary.21 The institutional-ization process of judicial review has also been described as a series of waves.22 Ginsburg identified the first wave with the creation of judicial review in the US. The second wave was the development of Kelsen's theory and the creation of an independent Court. He clarifies that despite the generalized view that this corresponds to the European model, only "post fascist" countries adopted it: Austria, Germany, Italy, Portugal and Spain, because of the need to define fundamental rights and to limit public powers. It expanded afterwards to other countries mainly to protect fundamental rights. The third wave corresponds to the fall of the Berlin Wall which extended the wave to Eastern Europe and Central Asia as well as to other countries in Africa and Asia.2324
This explains why many countries implemented judicial review after World War II,25 but there is no consensus as to the preferred constitutional model of judicial review or on the establishment of a specialized constitutional tribunal. It has been largely affirmed that the expansion of the "principle of constitutional review" is a result of the paradigms of the rule of law and the separation of powers, which have been broadly established in the main inter-national human rights treaties.26 However, the main models of constitutional
Page 151
review continue to be the European and the American ones, whose main differences are the centralized or, otherwise, diffuse nature of the control of constitutionality and therefore the creation of a supreme court (sometimes with a specialized constitutional chamber within the court) or an independent constitutional court.27 However, in academia there are diverse opinions as to which of these models is more prevalent worldwide.
US judicial review is considered to have influenced even European continental law, where the absolute discretionary competence of the leg-islative has been reassessed due to the implementation of constitutional principles.2829 Moreover, the US legal system is possibly the most significant source of inspiration for the worldwide expansion of judicial review as a means for controlling the other powers. "[T]he rise of transnational jurisdic-tions", i.e. the growing importance of international financial institutions at the international level, as well as the power of US law firms on issues regarding the "globalized economy and the non-profit NGO sector" are phenomena identified as strongly influencing the expansion of this legal system.30
Within the general European model, the Austrian and the German models (in that order) have been the most influential worldwide.31 The German Constitution created a modern form of judicial review that focuses on the protection of rights as the main goal. Judicial review seeks therefore to avoid the implementation of policies that are contrary to the constitution, thereby affecting the traditional separation of powers.32 Although the influ-ence of US judicial review is accepted worldwide, the difference is that this "European" judicial review seeks mainly to protect rights and consolidate democracy.33 For many observers, jurisprudential and case law develop-ments worldwide have moved closer to the German model, mainly due to the generalized adoption of the balancing method of adjudication, the enforce-ment of constitutional rights and the power to declare legislative omissions
Page 152
as unconstitutional.34 The latter seeks to make the legislative responsible, without any specific and mandatory mechanism of enforcement; enforce-ment depends therefore on legislative action, which usually should legislate even if the rulings declaring the omission may extra-limit the competences of the judiciary. According to some opinions, the most important incentive to act seems to be "a sheer interest in complying with the constitution".35 Others see it as yet another source of tension between the legislative and the judiciary, because it is mainly used by the neo-constitutionalist approach with a large axiological content.36 This figure on legislative omissions has also been adopted by constitutional case law in Austria, Spain, Italy, Argentina, Hungary, Slovakia, Slovenia, South Korea andTaiwan.37 Some countries have even incorporated this figure in their constitutions, such as in ex-Yugoslavia, Portugal, Brazil and Venezuela.38
Moreover, the German model of a constitutional court has lately been more significant worldwide than the US model because a specialized tribunal is often preferred to a high court with constitutional functions, and because few...
Para continuar leyendo
Solicita tu prueba