Florida State University College of Law
The Colombian Constitutional Court is a somewhat unlikely place to find a “towering” justice. While the Court has been one of the most activist in the world since its creation in 1991, it is also a highly institutionalized body. Many justices have made major contributions to the Court’s jurisprudence, the presidency of the Court rotates annually, and the clerks and staff of the Court, many of whom have been there far longer than any single justice, have been important keys to the institution’s impact and continuity. Indeed, I would argue that this level of institutionalization has allowed the Court to sustain an activist role over a long period of time, rather than merely episodically.
But it is also in this light that Justice Manuel Jose Cepeda’s role can best be understood, as an institution-builder on a highly institutionalized court. This is a role that can be appreciated as well by accounting for Cepeda’s entire career, and not simply his term on the Court itself. As a young lawyer in his 20s, fresh off of a Harvard LLM, Cepeda became a key advisor to the Gaviria administration during the 1991 Constituent Assembly. In that capacity he played a crucial role in designing the new Constitutional Court itself, and the individual complaint mechanism or tutela that would become the heart of the new constitutional order.
Once elected to the Court in 2001, Cepeda used a combination of political skill and legal pragmatism to develop the Court’s role while protecting the institution. He took his place at a precarious point for the Court, where it was under heavy critique for some of its major social rights interventions during a deep economic crisis. These decisions, which bailed out a large number of middle-class mortgages and required that public sector salaries at least keep pace with inflation, were attacked for their budgetary and macroeconomic effects, as well as the fact that they may have benefitted relatively affluent groups. Cepeda played a pivotal role in developing a creative social rights jurisprudence that was more targeted at the poor and had a clearer legal justification for intervention. This in turn helped to protect the Court during a period in which it was vulnerable to political attack. Most of Cepeda’s term on the Court coincided with the two-term presidency of Alvaro Uribe (2002-2010), a right-wing populist whose team arrived with an extremely critical discourse towards the Court, and a series of constitutional proposals aimed at crippling it. Yet the socioeconomic rights jurisprudence developed during this period built a base of support that protected the Court and allowed it to issue an increasingly direct set of challenges to Uribe’s overreaches that threatened the separation of powers and individual rights.
Cepeda coauthored a decision that partially reversed the public-sector salary jurisprudence to create an absolute right for salaries to keep pace with inflation only for the most vulnerable workers making less than two minimum salaries, while creating more flexibility with respect to wealthier workers. He also authored a landmark decision striking down an expansion of the value-added (or goods and services) tax on the grounds that it taxed for the first time, and without adequate justification, goods of primary necessity that were important to the poor.
But probably the two best known socioeconomic rights decisions authored by Cepeda were the two massive structural injunctions that dealt with internally displaced persons or IDPs (T-025/04) and the healthcare system (T-760/08). These two decisions are quintessential reflections of Cepeda’s pragmatic judicial philosophy: they are particularly astute on questions of timing and justification. The IDP case, for example, required a huge amount of new expenditures and programs for a population of about 4 million Colombians. But the decision faced remarkably little political resistance, in part because it was targeted at an extremely marginalized, and largely ignored, population, and in part because the decision (like the healthcare case) was rooted largely in failures of the executive bureaucracy to fulfill commitments already embodied in legislation. This made it much more difficult to argue that the decisions overstepped the bounds of the judicial role.
But at the same time, the two decisions were strikingly activist in the breadth of obligations that they placed on the state. Here I would like to highlight another of Cepeda’s characteristics, his partial jurisprudential outsiderness. Colombia’s constitutional law since 1991 has been dominated by what Michaela Hailbronner has called (in the German context) value formalism. Indeed, the most important foreign scholar in Colombian constitutional law is Robert Alexy. Cepeda is, instead, a pragmatist and a follower of Selznick’s responsive law. His decisions are thus particularly pronounced from a remedial perspective. The concept of a structural injunction or state of unconstitutional conditions predates Cepeda’s term on the Court, but he developed a number of mechanisms — a special panel charged with monitoring the case, public hearings, follow-up orders, and civil society monitoring commissions, for example — to give these remedies teeth. As Rodriguez-Garavito has noted, the robustness of the monitoring mechanisms was crucial to the slow but significant progress that the Court made on massive social problems.
The value of a partial jurisprudential outsider, in short, is that such a judge might pay attention to dimensions that are otherwise overlooked within a given legal order. At the same time, such a judge might develop jurisprudence that is difficult to continue once the judge has left the court. In the case of Cepeda, for example, despite his substantial influence on the Court, his two massive interventions have been continued by subsequent courts, but not attempted for other issues, at least not on anything like the same scale. There seems to be less appetite on the current court for the same sort of robust monitoring process, whether due to expense or conceptions of judicial role.
Finally, I note briefly the continued institution-building role that Cepeda has played since leaving the Court. This includes his role diffusing Colombian constitutional jurisprudence as part of the global canon in a number of works (including, for disclosure, a book on Colombian Constitutional law coauthored with me), as president of the International Association of Constitutional Law, as well as a government advisor on key constitutional issues, most importantly as constitutional advisor to the Santos administration during the peace process with the FARC.
David Landau is Mason Ladd Professor of Law at Florida State University College of Law
Suggested citation: David Landau, ‘Manuel Jose Cepeda and Institution-Building on the Colombian Constitutional Court’ IACL-AIDC Blog (25 March 2019) https://blog-iacl-aidc.org/towering-judges/2019/3/25/manuel-jose-cepeda-and-institution-building-on-the-colombian-constitutional-court