The Colombian Constitution represents a great success story among the many constitutions written, re-written, or reformed in Latin America, as well as in other countries that have undergone transition from authoritarian to democratic regimes as part of the so-called ‘third wave of democratization’. Its genesis in a diverse and open constituent assembly, bringing together previously marginalized sectors of society with traditional power brokers, produced a progressive document with critical institutional innovations such as the tutela writ of protection. Nevertheless, this success was not without problems, some of which persist to this day.

Jan Boesten, Postdoctoral Research Fellow at Oxford, examines the roots of these problems, how the courts have become implicated in them, and the ways that judicial actors can help to transform relations between the key actors in the transition to a peaceful democracy.

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In the 1990s, after the implementation of the Constitution, violence, already at extremely high levels, spiralled to unprecedented heights in Colombia. The cocaine trade produced new, and very potent, violent non-state armed actors. Violence only began to decline in the early 2000s. Today, peace with the Revolutionary Armed Forces of Colombia (FARC) offers the opportunity to significantly reduce violence, yet a crisis is now befalling the judiciary, with both high courts facing significant corruption allegations. The Supreme Court is engulfed in a corruption scandal that involves politicians and paramilitaries — human rights abusers with links to the drug trade.

The immeasurable tragedy of this crisis confronting the judiciary lies in the fact that the Supreme Court played a critical role in disclosing relations between paramilitaries and politicians in the recent past (2005–10). Thus, to appreciate the significance of the crisis of the judiciary, we need to also appreciate the role that it, together with the Constitutional Court, has played in the so-called parapolítica (parapolitics) affair. Their validation of ‘legal facts’ served to counteract serious governance issues in Colombia — namely, the co-optation of the legislature by non-state armed actors.

Peace process with the FARC

Colombia is at a crossroad in its history. The implementation of the peace treaty with the FARC after six decades of war unquestionably marks a historical turning point — even a critical juncture in the strict sense of the term. The difficulties of finalizing the accord after the failed referendum in October 2016 cannot alter that perception.

Yet, despite the obvious reasons for optimism, the situation remains complex. First, there is not yet a peace treaty with the last guerrilla group, the National Liberation Army (ELN); second; it remains to be seen whether other violent non-state armed groups involved in the illicit drug trade and other forms of transnational organized crime will operate under the changed conditions; third, and possibly most complicating, past peace processes with the FARC have shown that the most challenging part of the peace process is yet to begin.

In the 1980s, the FARC and Colombia’s government embarked on an equally ambitious plan to establish peace that included an amnesty, ceasefire agreements, a ‘National Dialogue’ with most guerrilla organizations, and the formation of a political party allowing demobilized guerrilla to run in elections. The fate of that political party — the Unión Patriotica (Patriotic Union; UP) — brought that peace process to a traumatic end, with UP activists murdered in the thousands and the party virtually annihilated.

So traumatic was this series of events, that courts in Colombia pronounced a ‘political genocide’ committed against the UP. Crucially, it made clear that the Colombian state could not protect all those who want to exercise their democratic rights. The current transition is therefore not only a period of great hope, but also of uncertainty.

Corruption in the judiciary

Courts in Colombia have long been renowned as among the strongest institutions in Latin America, and recently, their reputation has spread beyond the Iberian world. This reputation is well-deserved, as the high courts have made their institutional autonomy readily evident in numerous fields, including adjudication to protect citizens’ rights — private, socio-economic, and cultural — as well as constitutional adjudication, and criminal law investigations against powerful Members of Congress. The Constitutional Court is viewed as a path-breaker in neo-constitutionalist jurisprudence.

However, this well-deserved reputation is now in crisis. In an unprecedented trajectory of events, both high courts, the Constitutional and Supreme Court, have been engulfed in alarming corruption scandals. In 2015, the story broke that the President of the Constitutional Court, Jorge Ignacio Pretelt, was soliciting bribes to decide a tutela case in favour of an oil company. A fellow judge involved in the case reported the corruption attempt to the Commission of Accusation in Congress. Magistrate Pretelt was eventually forced off the court and faces corruption charges in the Supreme Court.

Meanwhile, the Supreme Court judges face even more serious accusations. They are also accused of soliciting bribes to defend cases in the interests of politicians accused of colluding with paramilitaries — so-called parapoliticos. These cases go to the core of Colombia’s governance issues because they touch on gross human rights violations committed by paramilitaries. So far, two current judges and a number of former judges and prosecutors are among the accused.

All of this comes at a particularly inopportune moment. The peace process with the FARC — a once in a generation opportunity to significantly reduce the violence — is, if not contingent on autonomous and assertive courts, immeasurably more likely to succeed if justice is applied with fairness and consistency as guiding principles. Corruption, on the face of it, undermines exactly these sacrosanct principles of judicial review.

Courts during transitions in Colombia

The particularly tragic corollary of these recent scandals is that the courts’ reputations have been undermined at precisely the point when they are needed to play a critical role in the transition process with the FARC. Both courts played critical roles in disclosing a nefarious web of relationships between politicians in Congress and paramilitaries, when the paramilitaries of the United Self-Defence Forces of Colombia (Autodefensas Unidas de Colombia, or AUC) were demobilized in 2006.

Their actions helped to identify and counteract one of Colombia’s most critical governance issues: the damage to the rule of law through the incorporation of groups at the margins of legality in order to uphold the state’s monopoly of violence. Research has shown that the production of legal facts — facts validated in a judicial process — plays a central role in restructuring conflict actors and their political allies in a transition process.

The so-called Justice and Peace process with the AUC commenced under the Álvaro Uribe government in 2002. After initial negotiations, the government committed to extremely favourable terms for the paramilitaries — a fact in part explained by the close relations that many members of Uribe’s coalition had with the paramilitaries. These relations were more or less an open secret, as opposition senators lamented the influence of obscure forces on the government, and the paramilitaries even proclaimed their influence during one particularly memorable session in Congress.

In the first instance, none of these ‘revelations’ — even though they were documented with corroborating data in Colombia’s most important weekly La Semana — put paramilitaries or Members of Congress at risk of legal or political consequences. Two crucial developments changed this, however: Clara López Obregon submitted an official complaint with the Supreme Court to investigate the rumours and establish whether they amounted to indictable offences in June 2005; and the Constitutional Court validated the Justice and Peace Law in 2006, under the condition that victims’ rights to truth are respected. Thus, began the political scandal parapolítica.

The Supreme Court opened investigations and then issued indictments of Members of Congress — almost all of them from then President Uribe’s governing coalition. The most heated phase of the parapolítica confrontation between the executive and the courts commenced when the affidavits in Justice and Peace courts incriminated Uribe’s family members and close political allies. From this moment on, the government adopted a strategy of aggression, intimidation, and evasion, as President Uribe issued a series of measures to avoid or thwart the ongoing investigations:

1) repeated public and personal attacks against the Supreme Court and its members, which Human Rights Watch described as a ‘concerted campaign to smear and discredit the Court’;

2) constitutional reforms to remove parapolítica investigations from the jurisdictions of the Supreme Court (none of these attempts succeeded);

3) blocks on, and opposition to, meaningful efforts to reform Congress;

4) extradition of the main AUC leaders to the United States;

5) secret surveillance of several institutions, including the Supreme and Constitutional Courts, and harassment of judges of the Supreme Court by the intelligence agency (DAS).

From an initial investigation into thirty Members of Congress at the beginning of the parapolítica scandal, the number grew to 102 by 2010. According to the Justice and Peace Unit of the Attorney General’s office, one third of all mayors, governors, and Members of Congress were promoted to office as a result of ‘narco-paramilitarism’, with paramilitaries claiming the patronage of 35 percent of Congress. The Supreme Court confirmed this number and placed numerous Members of Congress (including President Uribe’s cousin, Senator Mario Uribe) behind bars.

Importantly, each aggravating step was precipitated by official documentation showing politician–paramilitary collusion, which was exposed in the courts. It is clear that both politicians and the paramilitary benefited greatly from this collusion, to the detriment of the wider population and the proliferation of public goods (above all security). A critical aspect of these relations was, of course, their covert character, which fundamentally changed with the demobilization process.

While the initial revelations about potential paramilitary infiltration of the political class are significant — above all, the declarations by the AUC commanders themselves — the scandal acquired a much more explosive dynamic once these facts were confirmed and further investigated by judicial bodies. Moreover, it was not solely the Supreme Court’s activism that burst open the parapolítica scandal to public view. The Constitutional Court’s decision to insist upon victims’ right to the truth as a condition upon which to base the validity of the Justice and Peace process gave paramilitaries ample incentive to disclose their relations with Members of Congress, since withholding information might risk foregoing the Justice and Peace jurisdiction that would offer them lighter sentences. Significantly, throughout the Supreme Court’s investigation, the Constitutional Court backed its jurisprudence in writ of protection decisions filed by Members of Congress.

From conflict actors to architects of peace

The Oxford University project Architects of Peace: Promoting Human Security in Colombia and Internationally aims at understanding how transition processes restructure non-state armed groups and order. It is readily clear that courts greatly affect the outcomes in transitional justices processes — and not only because their business is serving justice. Rather, transitional justice processes, regardless of their limitations, always have a strong public component.

Put simply, the history of past crimes is much more difficult to contain if they are talked about in public. This fundamental principle of communicative action and deliberative democracy points to the significance of courts in reshuffling the hierarchical deck of state and non-state actors during transitional justice processes. Crucially, peace and transitional justice processes can, by their very nature, fundamentally unhinge equilibrium relations. The transition process with the FARC currently unfolding in Colombia will again provide cues as to how courts can influence sociopolitical transitions and governance in violence-prone contexts.

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Jan Boesten is a postdoctoral research fellow in the University of Oxford Department of Politics, working on the project, From Conflict Actors to Architects of Peace: Promoting Human Security in Colombia and Internationally. His work has appeared in Colombian journals including Revista Colombia Internacional and Precedente: Revista Jurídica.