Colombian constitutional law: leading cases

449 Pages·2017·3.163 MB·English

by  Cepeda Espinosa, Manuel José, Landau, David E

Colombian Constitutional Law
Praise for
Colombian Constitutional Law
“Prepared by two leading experts on Colombian constitutional law, this volume will
become an absolutely essential research and teaching tool in the comparative constitu-
tional canon. With fluid and readable translations, it affords insights into the background
and jurisprudence of one of the most innovative constitutional courts in the world—
excerpting case-law on social welfare rights, on ‘unconstitutional states of affairs’ (suffered
by a massive internally displaced population), on victim’s and indigenous rights, and on
other rights of personal liberty (including freedom of expression), equality, and dignity.
Other chapters illustrate the Court’s effort to reinvigorate a weakened legislature and
restrain an over-empowered executive. Constitutional theorists will find much to reflect
on as well in the closing chapter on unconstitutional amendments. Highly recommended!”
Vicki C. Jackson, author of
Constitutional Engagement in a Transnational Era
“For the last several decades the Colombian Constitutional Court has created some of the
most bold and humane constitutional jurisprudence on the planet. Sadly, the reach and
influence of this remarkable body of work has been limited by the lack of readily available
translations. It is a cause for rejoicing that Colombian Constitutional Law now remedies this
unfortunate barrier.”
Robert C. Post, Dean, and Sol & Lillian Goldman Professor of Law,
Yale University Law School
“This valuable collection of materials and commentary on the work of the Colombian
Constitutional Court makes accessible to students of comparative constitutional law a wide
range of the work of one of the world’s most interesting and important courts. The work of
everyone in the field of comparative constitutional law will be deepened by reflecting upon
the cases and materials provided here.”
Mark Tushnet, William Nelson Cromwell Professor of Law,
Harvard University Law School
Colombian
Constitutional Law
Leading Cases
Manuel José Cepeda Espinosa
David Landau
1
Colombian Constitutional Law: Leading Cases. Manuel José Cepeda Espinosa and David Landau.
© Oxford University Press 2017. Published 2017 by Oxford University Press.
1
Oxford University Press is a department of the University of Oxford. It furthers the University’s objective
of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered
trademark of Oxford University Press in the UK and certain other countries.
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America.
© Oxford University Press 2017
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted, in any form or by any means, without the prior permission in writing of
Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with
the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope
of the above should be sent to the Rights Department, Oxford University Press, at the address above.
You must not circulate this work in any other form
and you must impose this same condition on any acquirer.
Library of Congress Cataloging- in- Publication Data
Names: Cepeda Espinosa, Manuel José, author. | Landau, David E., author.
Title: Colombian constitutional law : leading cases / Manuel José Cepeda Espinosa,
David Landau.
Description: First edition. | New York : Oxford University Press, 2017. |
Includes bibliographical references and index.
Identifiers: LCCN 2016043880 | ISBN 9780190640361 ((hardback) : alk. paper)
Subjects: LCSH: Constitutional law— Colombia—Cases. | Colombia. Corte
Constitucional.
Classification: LCC KHH2921 .C438 2017 | DDC 342.861—dc23 LC record available at
https://l ccn.loc.gov/2 016043880
1 3 5 7 9 8 6 4 2
Printed by Sheridan Books, Inc., United States of America
Note to Readers
This publication is designed to provide accurate and authoritative information in regard to the subject matter
covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the
time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal,
accounting, or other professional services. If legal advice or other expert assistance is required, the services
of a competent professional person should be sought. Also, to confirm that the information has not been
affected or changed by recent developments, traditional legal research techniques should be used, including
checking primary sources where appropriate.
(Based on the Declaration of Principles jointly adopted by a Committee of the
American Bar Association and a Committee of Publishers and Associations.)
You may order this or any other Oxford University Press publication
by visiting the Oxford University Press website at www.oup.com.
Contents
Preface  ix
1. Introduction to the Colombian Constitution of 1991 and the Constitutional
Court  1
A. The Prelude to the 1991 Constitution: Institutional Decay and a Crisis of
Public Order  2
B. The Making of the 1991 Constitution  5
C. The Structure and Powers of the Colombian Constitutional Court  9
D. The Constitutional Court’s Decision- Making Process and Interpretive
Style  14
E. The Constitutional Court in the Post- 1991 Political Context  16
F. Methodology and Plan of This Volume  19
Part one The Constitutional Court 23
2. The Role of the Constitutional Court  25
A. The Role Conception of the Constitutional Court  27
B. Precedent and the Effects of Constitutional Court Decisions  32
1. The Power of the Constitutional Court to Determine the Effects
of Its Own Decisions  32
2. The Construction of a System of Precedent  35
C. The Constitutional Block: Incorporation of International Law  42
Part two Rights 49
3. Dignity and Autonomy  51
A. Decriminalization of Narcotics for Personal Use  52
B. Euthanasia and Dignified Death  59
C. Personal Appearance  65
vi Contents
D. Intersex Rights  67
E. Abortion  73
4. Equality  83
A. The Equality and Dignity Rights of Same- Sex Couples  85
B. Equality, Affirmative Action, and Gender Quotas  101
C. Discrimination against the Disabled and the Positive Dimension
of Equality  108
5. Freedom of Speech and Freedom of Religion  115
A. Limitations on Speech for Security and Decency  117
B. Limitations on Speech for Privacy and Reputation  121
C. The Freedom of Expression and Political Campaigns  128
1. Financing Political Parties and Campaigns  128
2. Access to Televised Debates  132
D. Religious Establishment  134
E. The Accommodation of Religion and Conscientious Objection  138
6. Social Rights  147
A. Foundations of Justiciability: The Right to a Minimum Level
of Subsistence  150
B. The Court and Economic Crisis  154
1. The Housing Finance Crisis  154
2. The Budgetary Crisis and Public Sector Salaries  159
C. The Right to Health: From Individual to Structural Remedies  167
1. Individualized Enforcement  169
2. Structural Enforcement  172
D. A Structural Remedy for Internal Forced Displacement  178
E. Informal and Marginalized Work  190
1. Street Vendors  191
2. Informal Recyclers  195
3. Sex Workers  199
F. The Right to Water  204
7. The Rights of Victims and Transitional Justice  213
A. The Rights of Victims during Criminal Processes  214
B. The Rights of Victims during Internal Armed Conflict  217
C. The Peace Process with Guerrilla Groups  226
8. The Rights of Indigenous Peoples  241
A. Conflicts between the Rights of Indigenous Communities
and Their Members  243
1. Non- traditional Criminal Punishment  243
2. Religious Conflict and Diversity  246
3. Cultural Practices and the Rights of Children  249
B. Diversity and Political Representation  252
Contents vii
C. The Right to Prior Consultation  255
1. Consultation on Projects Exploiting Natural Resources  257
2. Consultation on Government Programs  259
3. Consultation on Congressional Laws  264
Part three The Separation of Powers 271
9. The President: Problems of Executive Overreach  273
A. Limiting Executive Discretion  275
B. The Separation of Powers and National Security  279
C. States of Exception  287
1. Review of the Declaration of a State of Internal Commotion  289
2. Review of Decrees Issued during a State of Internal Commotion  297
10. The Congress: Problems of Abdication and Deliberation  303
A. The Scope of Parliamentary Inviolability  305
B. Legislative Delegation to the Executive  310
C. Legislative Deliberation and Procedure  317
Part four Constitutional Change 325
11. Constitutional Amendment and the Substitution of the Constitution
Doctrine  327
A. Procedural Review of Constitutional Amendments  328
B. Control of Constitutional Reform via Referendum  334
C. The Substitution of the Constitution Doctrine  340
1. The First Re- election Decision  342
2. The Second Re- election Decision  351
3. The Fiscal Sustainability Amendment  360
Appendix 1 The Orders of the Constitutional Court  371
A. Modulated Decisions on Abstract Review  372
1. The Conditional Decision  372
2. The Deferred Decision  374
3. The Integrative Decision 376
B. The Tutela  377
1. Structural Orders  378
2. Inter Comunis or Inter Pares Effects  381
3. The State of Unconstitutional Affairs Doctrine 382
Appendix 2 The Constitution of Colombia (1991) (selected provisions)  387
Table of Cases 417
Index  423

Preface
This book aims to introduce readers to Colombian constitutional law through the case
law of the Colombian Constitutional Court. Since its creation as part of the Colombian
Constitution of 1991, the Court has become known for its work across a number of different
domains covered in this volume, both on global topics such as same- sex marriage, abortion,
and the defense of socioeconomic rights, and more particular issues such as the protection
of indigenous cultural diversity and autonomy, the rights of victims of the country’s brutal
and long- running internal armed conflict, and the striking down of constitutional amend-
ments on the grounds that they replace rather than truly amend core parts of the existing
constitutional text. The Court’s case law is a prime example of transformative constitution-
alism aiming to overcome entrenched economic and social inequalities. And it has exer-
cised a significant impact on the political order, perhaps most prominently in the decision
striking down a proposed constitutional amendment that would have allowed the popular
President Alvaro Uribe to exercise a third consecutive term in office.
Yet the Court’s decisions have largely been unavailable to non- Spanish speakers
because very few decisions have been translated. This volume aims to fill that gap by pro-
viding lucid and succinct translations of the Court’s most significant decisions in these
and other areas. As these decisions are often hundreds of pages long and contain many
pages recounting procedural history, the positions of intervenors, and other issues, we have
focused on providing those extracts that contain the core of the reasoning and will be most
useful to comparative constitutional lawyers. We have not aimed to be fully comprehensive
(an impossible task at any rate) but rather have focused on those issues likely to be of great-
est interest to the field because they show the Court wrestling with common problems in
particular ways, demonstrate noteworthy doctrinal innovation, or highlight judicial inter-
vention on undertheorized but significant issues.
Alongside the cases themselves, we have provided materials intended to orient the
reader. Chapter 1 contains no cases, but instead serves as a brief introduction to the history