Why do some courts act independently and others do not? This is the basic question that posed itself when Colombia’s Constitutional Court barred the sitting president from another term in office. Álvaro Uribe was a powerful and popular head of state, who had openly displayed, both, his astuteness as well as ruthlessness when acting politically. Importantly, only five years prior to the decision barring President Uribe from another term, the Court affirmed a reform project that prolonged President Uribe’s time in office from one term to two terms in office. The decision, therefore, not only asserted an institutional independence that stands out in the region, but also eclipses a process of enforcing judicial independence, and constraining executive power, resulting in a better consolidation of the separation of powers.

Two factors are crucial for understanding the significance of the Court’s decisions. First: since most regimes in Eastern Europe and Latin America democratized in the so-called Third Wave of democratization, scholars have discovered that the quality of democracy in those countries has lagged behind the promises of liberalism despite the formal existence of democratic institutions. In South America the phenomenon of delegative democracies became prevalent. Presidents ruled the way they saw fit without patience for the nuisance of negotiating with horizontal accountability institutions. Under Uribe, Colombia, too, showed definite signs of “delegativeness”. Second: Colombia has experienced low intensity civil war for more than six decades with a proliferation of different violent actors that have controlled pockets of territory in the country. In the cases of the paramilitaries of the AUC and the guerrillas of the FARC, these actors exercised functions traditionally associated with the state, becoming something akin to a state within the state. Both, the proliferation of armed actors and the weak institutionalization of the separation of powers are all but conducive to a properly functioning rule of law. The Court’s stance in the question of presidential re-election, a theme of high political significance for the executive, therefore provides us with clues for how the separation of powers consolidates, even under very adverse conditions, as a consequence of judicial empowerment.

This paper is the first exploration of tracing this process of judicial empowerment to the deliberative strategies utilized by the Court. I begin by mapping the actors involved and explain their normative justification in the matter. Uribe based his motivation to extend his time in office by referencing the general will of the people to freely select its political leaders. He and his associates made a very majoritarian argument in favor of re-election that invoked a coherent vision of life with a corresponding moral universe, evolving around traditional, conservative, and folkloristic values. This normative framework places the political leader on a pedestal that separates him from the particularized interests that make up society’s life world, meriting the claim that he represents the true nation. The Constitutional Court, on other hand, developed a jurisprudence that embraces a notion of popular sovereignty rooted in the inclusion of a plurality and coexistence of different ideas, races, genders, origins, religions and social groups. Such popular sovereignty, the Court argued, tacitly accepts a limitation on the exercise of political power that is not solely bound by the written word of the Constitution, but also by the interpretive principles utilized to detect the meaning of constitutional clauses.

To decide between the merits of a popularly legitimized leader and the constitutional constraints placed upon the exercise of political power when it comes to constitutional reform, the Court turned to what is now known as the substitution doctrine. The Colombian Constitution from 1991 explicitly stipulates that the Court’s review powers of amendment processes are exclusively limited to “errors of procedure” and provides the legislature and executive with far reaching capabilities to transform the political charter (Article 241, § 1-3; Article 374 – 380). The Court affirmed the limitation of its review to procedure, but then argued that substance and procedure overlap in the competence of the actor attempting to create a legal consequence. In matters concerning constitutional reform, competence, the legal power to establish the legal consequence, is a central component of procedure, because without competence, the actor cannot produce the desired outcome making a test of the procedures entirely meaningless. Therefore, the Court investigated whether the legislature was acting ultra vires or within its constitutionally bestowed powers to reform the constitution. By placing itself at the nexus between competence and substance, the Constitutional Court expanded its powers to quasi-substantive dimensions by peculiarly and ingenuously elaborating on the distinction between constituent (poder constituyente) and constituted power (poder constituyente derivado). Rather than turning the concept of constituent power into a sanctification of limitless executive power, as in Carl Schmitt’s theory of the state of exception, the Court’s argumentation utilized the distinction between the two to curtail executive and legislative power. In 2010, it determined that the separation of powers is an axiomatic principle of the constitutional, democratic regime outlined in the 1991 Constitution and held that a third term in the presidential office would existentially damage the safeguards put in place to uphold the separation of powers and thus declared the reform unconstitutional.

Constitutional courts face the dilemma that they have to decide cases of high political stakes without access to the legitimation resource that democratic elections could provide. Alexander Bickel famously called this the countermajoritarian difficulty. In normative theory, discourse and the force of reason serve as the veneer to bridge the lack of direct legitimation with the high stake decisions that courts are tasked to decide. The paper relates the outcome in the decision to the institutionalization of deliberation inside the court. As a deliberative body, the Court followed the generic motto to guarantee the autonomy of legal reasoning by protecting the tranquility of the process of deliberation. I argue that the tranquility of process is upheld not only through formal institutions, but also informal ones. Informal institutions are a number of best practices that aim at minimizing external undue pressure and averting accusations of bias. Implementing these best practices helped to shift the burden of the democratic deficit to the coherence of argumentation. As a magistrate poignantly stated: “In the end, the weapon of a judge is his discourse. It depends on his language, its coherence, its logic”. In a nutshell: The decision of the Colombian Constitutional Court showed that this kind of argumentation, backed by the proper institutionalization of deliberation, can counteract even such veritable threats as political majoritarianism and civil war pose to the rule of law.

Jan Boesten’s article “Between Democratic Security and Democratic Legality. Constitutional Politics and Presidential Re-election in Colombia” has been published in Precedente. Revista Jurídica. Vol 5. (July – December, 2014). pp. 9-40.
Access to the article is available here.