Reflexiones sobre la evolución legal de la libertad de expresión en Canadá y Colombia en el contexto de la consolidación democrática
| Autor | Mauricio Beltrán-Cristancho - Robert Joseph Blaise MacLean |
| Cargo | Universidad del Rosario, Bogotá D.C., Colombia - Universidad del Rosario, Bogotá D.C., Colombia |
| Páginas | 217-246 |
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In 1887 Colombia legally incorporated a Civil Code that in general lines followed the 1855 Chilean Code, which in turn was an adaptation of the 1804 Napoleonic Code. As a result, the Colombian legal system inheritedthe French distrust for the judiciary in considering that only the written statutes passed by legislators were "the law". The intention was to grant sovereignty to the elected legislators, who would ensure that the body of law would be consistent and complete. Judiciary intervention in lawmaking would lead to inconsistencies due to differences of interpretation or the application personal viewpoints, and was therefore distrusted. In this context, the judge's role was limited to dispensing justice as set out in the written law and to applying this law only.
When faced with a situation in which a rule was unclear or did not provide an "answer", judges would interpret the regulation to find a solution to the issue at hand. Although previous decisions, legal principles, or even custom could also be used to support their decisions, there was no obligation to use them, because in the end what compelled the jurisdictional function was "the law".1
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A logical extension of the above was that judges were not required to use past decisions as a means for solving cases, which gave them ample discre-tion to choose when and if to use precedents. In this sense, each judge was independent, even from superior courts.
This judicial prerogative of not using precedents proved to be one of the most troublesome characteristics of the Colombian legal system, because any individual judge's interpretation would be perfectly valid, regardless of whether it contradicted previous decisions of superior courts. This led, of course, to unpredictability within the whole system.
Since 1991, the notion that rules and precedents are equally impor-tant in dealing with the difficult questions faced by Colombian society has gained increased relevance.2 In 2002 the Colombian Constitutional Court finally ruled on this matter, at least regarding the precedents set by the court itself, in decision C-251.
Given that precedents did not play a major role in Colombian legal history before 1991, case analysis fails to provide meaningful insights on his-torical trends or patterns on how the courts have dealt with specific issues over time. Consequently, our analysis focuses on the legal evolution of free expression since 1991, when the Colombian Constitutional Court was insti-tuted and began to make increased use of precedents. We will also examine historical studies on the 19th and 20th Century to explain how social and political forces have affected the decisions of the Colombian Constitutional Court since 1991. The expectation is that this analysis will provide a sense of the historical trends that explain freedom of expression in Colombia and specifically the way those trends affect the manner in which the Court is contributing to the consolidation of democracy in Colombia.
In contrast, in Canada case analysis is much more straightforward in terms of explaining constitutional development, because precedents are a key feature of its legal system. Prior to the establishment of the Charter of Rights and Freedoms in 1982, freedom of expression in Canada evolved through the use of judicial precedent.
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We will examine the legal evolution of both Canada and Colombia with the main purpose of exploring the key differences between these two legal systems in terms of the concept of freedom of expression. We will argue that early democratic consolidation in Canada, as a result of a strong civil society, was a fact that entailed neither legislative enactment nor a revolutionary past as was the case in Colombia. The main difference lies in the fact that the structural problems of society had been resolved in Canada even before discussions began on whether it was a nation. Even in the 21st century, freedom of expression in Colombia has not yet reached the status of a cultural practice that allows governmental actions to be scrutinized, discussed, promoted and controlled by the civil society. Without this condi-tion, democratic consolidation still appears unattainable.
Canada did not have a constitutionally entrenched protection of freedom of expression until 1982. The founding constitutional document of Canada is the British North America Act of 18673 (referred to as the B.N.A. Act). It was an Act of the British parliament whose function was simply to le-gally achieve the unification of four British North American colonies into one larger colony, to create a federal system to distribute the powers of government between two levels of government, and to make provisions for its administra-tion and the admission of other colonies. It was (and still is) a rather sterile instrument containing "... no metaphysics, no political philosophy, and no political parties".4 It is silent on the issue of "rights" and "freedoms", which are mentioned nowhere in the document.
Does that mean that there were no "rights" to free speech in Canada? Not at all; Canadian legal history shows that the existence or non-existence of constitutionally protected rights bears little relation to whether they, in fact, exist. As Grant Huscroft writes "freedom of expression does not depend upon the protection of a Bill of Rights. Australians have long enjoyed freedom of expression without a Bill of Rights...".5
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In Colombia, on the other hand, express constitutional protection of freedom of expression has been in place since 1819, but reality has demonstrated that the exercise this right, even to date, entails high levels of risk.
From the 19th through the mid-20th century, Colombian history was fraught with conflict between the two main political forces, which clashed rhetorically, sometimes politically and, often, though the force of arms. The War of Independence against Spain (1810 to 1819) was just the staging grounds for the future clash. In fact, Colombian historiography has concen-trated on these issues. The first historic survey of Colombia, first published in 1827 and later updated in 1858, focused mainly on the military conflict and the political crisis that ensued from 1810 to 1832. It showed that groups began to organize themselves as political parties in the 1840s, but that their real purpose was to gain government control in order to keep their interests safe from any intromission.6
In the 19th century, members of the clergy declared themselves supporters of the conservative party, and as a result religious controversies became the perfect excuse to initiate military uprisings. For instance, the War of Supremes in 1840 was allegedly sparked by a Congressional decision in 1839 to sup-press minor convents.
Other historical studies published in the last two decades indicate that when the liberal and conservative parties were formally taking shape in the 1840s, their members belonged to the same social elites and that their political alignment was primarily along regional lines. Their disagreements were mainly rhetorical. Thus, both parties included merchants, land owners, lawyers, military men, handcrafters and practicing Catholics.7 Key political and military figures changed their political allegiances depending on their current interests.8 The most representative case of changing sides was Mariano Ospina Rodríguez who, judging from his past actions and declara-tions, would have been considered a liberal, yet he took advantage of an uprising to change political sides and supported the group that ultimately
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became the conservative party. Ospina gained enough influence to become one of the founders of the Conservative Party in 1848.9 Since then his de-scendents have become one of the most influential families in conservative party politics.10
Since 1848 liberals and conservatives have attempted to control the state through their parties. Economic interests were always behind this constant conflict for supremacy, in a country with profound social inequali-ties and insufficient trade between regions to drive economic growth.11 The 19th century in Colombia ended with the bloodiest civil war of the century, the loss of Panama,12 and the imposition of a very conservative constitution in 188613 which remained in force until 1991.
In the 20th century Colombia pursued a capitalist path, but lacked the required production and transportation infrastructure to fully implement it. By the same token, the Colombian state did not have the institutional support to enable a capitalist economic model to flourish. The educational system was administered by the Catholic Church, which was always suspicious of any notion that might subvert the existing order.14
In short, political independence after the bloody war against Spain did not bring economic expansion. The Colombian economic model had always served the interests of large landowners. At the start of the 20th century most Colombians still did not have access to land ownership and people started to move from the...
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