Symposium: Social Transformation in Colombia: Internally Displaced Persons and the Constitutional Court – A Landmark Case

María-Dolores Collazos

CESPRA-EHESS, Paris

Since its introduction in 1991, the Constitutional Court of Colombia (hereinafter ‘the Court’) has distinguished itself as a competent defender of fundamental rights. Regionally, the Court is known for creating a large body of jurisprudence focused on supporting and expanding the range of individual rights. Its protection of vulnerable individuals and groups, such as children and ethnic minorities, is considered to be both transformative and creative. Some have seen the Court’s willingness and ability to participate in Colombian public life as proof of a tendency toward being “a sovereign without control”. There is, however, consensus on the relevance of developments and initiatives of the Court for accomplishing social transformation in Colombia.

Judgment T-025/2004 represents a step further in this direction. In this decision, the Court dealt with the problem of protecting the fundamental rights of internally displaced persons by relying on the doctrine of “unconstitutional state of affairs”. In terms of this doctrine the Court acknowledges that, in some instances, violations of constitutional rights and principles are so widespread that they cannot be attributed to a single action or omission of the authorities concerned but are the result of systemic institutional flaws. This reasoning justifies the intervention of the Court as a coordinator between different levels of institutional action. The primary purpose of a decision, in such a situation, is not only the protection of individual plaintiffs but the facilitation of structural reforms by urging authorities to adopt the necessary measures to correct such a state of affairs. The doctrine of the unconstitutional state of affairs had previously been used by the Court to remedy gaps in State action in cases involving large numbers of people – for example, in matters related to prison overcrowding or the lack of protection for human rights defenders. The 2004 decision is a landmark case, however, because, in it, the Court thoroughly explored the scope of the doctrine. Additionally, the Court’s efforts to monitor State attempts to dismantle the unconstitutional state of affairs are considered “the most explicit and systematic attempt ever made to ensure the implementation of any court sentence in Latin America”.

Conflict and Forced Displacement in Colombia

Since the mid-1960s, Colombia has experienced an asymmetric war between the government and multiple armed groups fighting for territory. At first, the war was regarded only as a conflict over opposing political ideologies, represented by the Colombian army and leftist-guerrilla groups such as the FARC or the ELN. The fighting, however, soon escalated, with right-wing paramilitary groups and drug trafficking lords also entering the war – this has forced thousands of people to abandon their homes to escape death and violence. According to the United Nations Refugee Agency, between 1985 and 2018, 7.7 million people were forcibly displaced in Colombia. The main affected groups are vulnerable minorities, such as indigenous and Afro-descendant communities.

The phenomenon intensified during the 1990s. Displaced persons were at the center of a human rights violations cycle arising from the daily experience of being displaced. Their circumstances expose them to all sorts of hardship and risk, including, high levels of insecurity in urban areas, limited access to adequate healthcare and social security, insufficient information about institutional support, difficulties in finding employment, and inadequate educational opportunities for children. Congress responded by adopting Law 387 of 1997. Inspired by international instruments, Law 387 enumerated and defined the rights of displaced persons. It launched a public policy to protect them through humanitarian aid and socio-economic measures of stabilization. And, it created a “National Assistance System”, coordinated by a national council together with regional councils, aimed at implementing the policy. Although Law 387 represented a significant advance in the protection of displaced persons, sadly, it has never been fully implemented.

The intervention of the Constitutional Court: Judgment T-025/2004

The most important tool in the Colombian Constitution of 1991, for the protection of fundamental rights, is the Acción de Tutela. Through the Tutela, a person whose fundamental rights are threatened or violated can claim judicial protection. There are no formalities associated with the writ – citizens can address any judge within the territory, and no legal representation is required. The judge is compelled to give priority to Tutela claims and must issue a decision within ten days. Additionally, the Court has discretionary review power over the Tutelas. Every Tutela decision issued within the country is sent to the Court, which can review the claims to correct the decision or develop constitutional jurisprudence if the main subject warrants further study.

Filling Tutela writs in practice became a procedural condition for displaced people to obtain protection. In 2003 the number of Tutelas from the displaced population was overwhelming, with most of them facing difficulties with access to health services, education, and adequate housing, as well as trouble with realizing the right to a minimum income. After studying hundreds of writs, the Court concluded that displaced persons had experienced extensive and repetitive rights violations and that the policy launched with Law 387 of 1997 was insufficient for addressing the crisis. It found that their living conditions did not meet the minimum standards of human dignity and that the State was not providing adequate protection.

The Court identified six factors that were present, that, together, justified the declaration of such a state of affairs. First, a significant number of individuals had experienced a large-scale and generalized violation of many of their constitutional rights. Second, the authorities had failed, over a sustained period, to take sufficient action to fulfill their duties regarding the rights of the displaced population. Third, the government had adopted unconstitutional practices, such as introducing the Tutela as a procedural condition for state protection. Fourth, there were no legislative, administrative, or budgetary measures in place to prevent the crisis. Fifth, the situation this community found itself in was a crisis, a solution to which would require a collaborative effort from various entities and the adoption of a budgetary plan. Lastly, the problem was so extensive that if all affected persons were to seek justice by filing Tutela claims, the court system would become congested.

By declaring the unconstitutional state of affairs, the Court acknowledged that the reasons behind the poor performance of the State in protecting the rights of displaced persons were so complex that focusing on individual cases would not provide an effective solution. As the lack of action from the authorities regarding the displacement crisis was the result of deep, structural, flaws, the Court determined that the engagement of diverse institutional and social actors was necessary for overcoming the blockage. For the Court, the starting point of a comprehensive solution was the strengthening of the institutional capacity to implement Law 387 of 1997 fully, and the allocation of adequate budgetary input to finance its implementation.

The aftermath of decision T-025/2004

The 2004 judgment stands at the limits of the inter partes effects traditionally associated with the Tutela writ. Over and above issuing specific orders to protect the individual applicants – 108 writs for 1,150 displaced families – the Court continued to monitor budgetary and institutional efforts to overcome the crisis. On the basis that gaps in the State action regarding the displaced persons were the consequence of structural flaws, the Court issued several complex orders to the authorities taking part in attending the displaced population to join efforts to resolve the crisis. These orders focused on harmonization of actions taken by the national and local authorities and the establishment of a minimum standard of protection. Additionally, the Court required authorities, at both national and local level, to develop a budget to finance the State’s rights-duties, within two months.  It also gave state entities three months to adopt a program, with a defined timeline, aimed at correcting the institutional flaws obstructing effective action. Moreover, the Court required the state to grant committees and organizations, representing displaced persons, opportunities to participate in decision-making.

Since the Court announced its decision, the government has deployed various strategies to achieve its full implementation. The Court has also maintained oversight. Between 2004 and 2011, the Court called 14 public hearings, involving multiple social actors affected by the displacement phenomenon and has issued 84 follow-up orders (Autos) intended to protect the most vulnerable segment within the displaced population. The primary purpose of the public hearings was to allow the Court to gather information about the specific needs of and risks to displaced people, so it would have enough data to complement the decision by issuing additional Autos. The Autos focused on urging the competent authorities to step up their efforts regarding specific groups within the displaced community, such as pregnant women, children, indigenous and Afro-Caribbean groups, or disabled persons. Additionally, in 2009, the Court created a Special Chamber (Sala Especial de Seguimiento) to monitor the implementation of the decision and to follow-up on progress with or setbacks to overcoming the unconstitutional state of affairs.

The judgment, T-025/2004, remains one of the most innovative decisions in the Court’s history, and the doctrine of the unconstitutional state of affairs has become a model, abroad, for judicial intervention in reducing social gaps. But, for how long this activist Court can keep on monitoring the implementation of one judgment before the attendant institutional and political costs become too high is still unclear. So this matter remains one to watch.

María-Dolores Collazos is Jeune chercheuse associée, CESPRA-EHESS, Paris

Suggested citation: María-Dolores Collazos, “Social Transformation in Colombia: Internally Displaced Persons and the Constitutional Court. A Landmark Case” IACL-IADC Blog (21 July 2020) https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-central-and-south-america/2020/7/21/vxl7y4pwj6ugz4prke6fcbg3oerm15