Colombia’s justice system is a multi-headed behemoth in bad need of reform. The country’s government knows this, but has proposed a judicial reform that is not going to fix the real problems of the system.
Following a French model, Colombia has a bifurcated judicial system, one for private law (civil and criminal matters) headed by the Supreme Court, and one for public law (administrative law) with the Council of State at its top. Next to this, you find the Constitutional Court, which is charged with protecting the integrity and supremacy of the Constitution by ruling on the constitutionality of Acts of Congress, referenda, executive decrees and such things. Americans, used to having only one high court for all matters (unless you are from Texas or Oklahoma), may find this tripartite division confusing.
And you are not the only ones. At times it seems that the three Colombian high courts cannot agree on many issues, and it is even not rare for them to ignore the opinions of each other. The result is what Colombians call a ‘train crash’ only that instead of bent and charred metal what you get is inconsistent interpretations of the law by two high courts. The most common clash between courts happens when a party brings an action before the Constitutional Court alleging that a decision by the Supreme Court is unconstitutional (a ‘tutela’). This means that after having three rounds of litigation (trial, appeals, and high court) the losing party can get another shot at getting a favorable judgment. If there is such thing as too much ‘due process’ this seems to qualify as such.
One would imagine that by now Colombians would have solved this situation. Many attempts have been made, and the judges themselves have tried to broker deals among them, promising to respect each other’s opinions. So far, this has not worked well, as it was clear after the Constitutional Court decided not to dismiss a lawsuit by Piedad Córdoba after the Supreme Court had found against her.
But high judges disagreeing with each other is not only problem Colombia’s judicial system has. The true complications begin at the bottom. Even if at 8.8 the number of judges per 100,000 people in Colombia is four times that of the United Kingdom (2.2), more than double that of Canada (3.3), and not too much lower than in the United States (10.8), justice in Colombia is slow. Painfully slow. The World Bank estimates that it takes more than 1,300 days (almost four years!) to enforce a Colombian contract, counting from the moment of filing suit until it the judgment is enforced and the plaintiff gets his money. No other comparable Latin American country fares nearly as bad on that measure –the regional average is 708 days. The cost of litigation as a percentage of the claim (41%) is also substantially higher than the Latin American average (31.2%). The situation is so bad that big companies who can afford private arbitration have given up entirely on the ordinary courts.
The criminal system is also in dire shape. In 2005 Colombia adopted a new regime for adversarial criminal proceedings which give more weight to oral hearings. A report by the Justice Ministry calculates that in the three years until 2008 there had been convictions on only 2,7% of all homicides cases. The system is somewhat better at convicting the guilty of theft, domestic violence, and assault, but nowhere near the levels of any reliable criminal system. Cases of corruption and bribery seem to end in the courtroom only after the media has uncovered the scandal.
What are the causes of this terrible state of Colombian justice? The fact that Colombia has not had an effective judicial system at any point of its history complicates the answer. But it probably lies in opportunities for lawyers to dilate proceedings, and needless requirements that become obstacles in the road to justice. In other words, too much process. Another place to look for is at the Prosecutor General’s office, which has an overworked staff, not enough resources to investigate the avalanche of crime that takes place in Colombia, and its share of corruption scandals. Also, consider that the budget appropriations for the whole judicial branch in 2011, at two trillion pesos (US$ 1.12 billion), were a mere 1.3% of the overall country’s budget. This sounds too low for the needs of a nation of 45 million people. Finally, the body meant to oversee and investigate judges, Colegio Superior de la Judicatura, has often been in the news for the wrong reasons. Colombians recently found out that members of the Judicatura allegedly named fellow judges to high positions in that office shortly before retirement, allowing them to inflate their pensions. Something is very wrong with judges who are more concerned with getting money from the fisc than with administering justice.
Luckily, the government is aware of all this, and it has taken measures to remedy some problems. A bill on judicial reform is expected to pass in Congress this year, which includes a provision that makes clear once and for all that the Constitutional Court has priority over the protection of constitutional rights. The same bill would grant members of Congress an appeal as of right if they are found guilty of any crime and create a ‘Supercourt’ meant to investigate wrongdoing by members of the three high courts, the Prosecutor General, the Inspector General and the Comptroller General. The bill also includes some nonsense called habeas juris petition, supposed to be superior to ‘tutelas’, but which would achieve nothing in practice.
Although there has been too much talk about this judicial reform bill, its enactment will leave undone many of the much needed changes in the system. The bill focuses on the top of the state’s structure (Congress, the high courts, etc.), but does too little for the everyday litigant. Moreover, the unfortunate Consejo Superior de la Judicatura managed to survive, even if the government was strongly against it. One can only hope that someday soon Congress will pinch itself and realize that the country needs much more drastic medicine in this area. And it needs it now.