How Colombia's President Santos made peace with the judiciary

Colombia's legal reforms are key for securing passage of a new US-Colombia free trade agreement. President Juan Manuel Santos is meeting today with President Obama to discuss the issue.

After years of tension between Colombia’s executive and judicial branches, newly-elected President Juan Manuel Santos has extended an olive branch to the courts and taken steps to bolster the power and legitimacy of the judiciary.

Colombia’s judicial weaknesses are arguably some of the greatest obstacles to stability and effective governance today in a nation still struggling with paramilitary violence, the bitter legacy of a drug war, and the vestiges of a guerrilla insurgency. Underscoring the problem, Mr. Santos has launched a number of reforms in his first half-year in office, placing him in stark contrast to a predecessor who clashed repeatedly with the courts.

He is meeting today with President Obama in Washington to offer a timeline of major legal improvements – key for securing passage of a new US-Colombia free trade agreement. The United States has been pressuring Colombia to enforce labor laws more vigorously, a past roadblock in Congressional debates over the trade deal, which is projected to boost American exports to Colombia by $1 billion annually.

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Santos is expected to announce changes to the penal code, increasing the number of inspectors and prosecutors in provincial areas, and boosting overall judicial manpower. Separately, Santos is also expected today to speak about proposals coming from his new judicial reform commission.

“One year ago, we were just defending the existence of the independence of the judiciary, and now we are discussing the problems of the judiciary, access to justice, how to manage the judiciary, and that’s a big, big discussion,” says Rodrigo Uprimny, a law professor at the Universidad Nacional de Colombia and the director of De Justicia, a leading Colombian legal NGO.

“The arrival of President Santos and [his] decision to say, ‘OK, I’m going to respect the courts, because I think the independence of the judiciary is essential to the rule of law … was an important point,” he adds. “Maybe it’s wishful thinking, but I think we are going to make it with a more democratic discussion.”

Undoing Uribe

By some accounts, former President Álvaro Uribe was involved in an all-out institutional war with Supreme Court justices who prosecuted dozens of government officials linked to paramilitary groups – officials that also happened to form part of Mr. Uribe’s political power base.

Mr. Uribe felt the prosecutions were the product of political vendettas, and refused to back down. The scandal was capped by revelations that Uribe’s security services illegally wiretapped some of the justices, with Human Rights Watch accusing the president of taking “steps to undermine the investigations and discredit the Supreme Court justices.”

Santos has quickly moved to relieve the tension and support the courts, which emerged from the Uribe era emboldened but defensive. He has addressed corruption in the lower courts, formed the judicial reform commission to pursue changes in the judicial structure, and – most critically, some say – taken steps to balance power between the executive and judicial branches and back away from criticism of high-level prosecutions.

Other moves, such as reversing an Uribe-era reform that merged the Justice Department with another ministry in an attempt to save money, have signaled a sharp break with his predecessor.

Santos also successfully filled the post of attorney general after extreme distrust between the Supreme Court and Uribe caused an unprecedented stalemate that left the powerful position vacant for well over a year. The squabble ended when Santos replaced Uribe’s candidates with respected moderates – ending worries of a power grab and allowing prosecutions to move forward again.

The Dec. 1 election of Viviane Morales as the nation’s first female attorney general “was a clear sign that relations between the government and judiciary had improved,” the British Embassy in Bogotá said in its annual report on human rights and democracy, released this week.

Corruption, impunity still rampant

“There is a desire to undertake some serious reforms,” says Michael Shifter, president of the Inter-American Dialogue in Washington. “How long it will take to get to that point from now, that’s what the Colombians want to know.”

Much needs to be done. Impunity is a chronic problem, with 98.5 percent of all extrajudicial killings going unpunished – a situation is exacerbated by perennial cocaine-related drug violence and flare-ups of guerrilla attacks. According to the British Embassy, of more than 3,000 individuals facing charges under the 2005 Justice and Peace Law to demobilize paramilitaries, only two have been convicted.

“Can you go to a court in [Colombia] down the street and bring grievances and have faith that the system is going to work? I would say no,” says Luz Nagle, a professor at the Stetson University College of Law and a former judge in Colombia. “The reality is there is still a lot of corruption in Colombia."

Constitutional Court stands up to president

One bright spot in the judicial system, Professor Nagle says, is the Constitutional Court – the highest arbiter of constitutional issues. It gained popular support by upholding individual rights during the Uribe era and shocked international observers by denying Uribe a third presidential term.

Limiting Uribe’s tenure was essential for upholding democracy and is a signal that Santos must work with, and not against, the judiciary, says Manuel José Cepeda Espinosa, a Constitutional Court justice from 2001 to 2009.

“It showed that Colombia, though it has many problems, is a country that has rule of law and that the principle that the Constitution is the superior law of the land is respected by the winners and the losers, even if the losers are very powerful,” says Mr. Cepeda, now a law professor who serves as a prominent adviser to the reform commission.

Santos’s efforts appear well-intentioned, Cepeda says, but the judicial system is now on close guard.

“I agree that President Santos wants to create a constructive climate between all the branches of government. It is his political style and that has been very good for the country, but that doesn’t mean that either the Supreme Court or the Constitutional Court in the exercise of their functions will approach issues with deference to the executive,” he says.

Eduardo Cifuentes Muñoz, another former judge on the Constitutional Court and the author of many of its most progressive decisions, is also wary of Santos’ overtures, particularly of his attempts to rearrange power-sharing between the courts and the executive branch.

In standing up to Uribe, “the judiciary finally won the battle against the president” – momentum the courts do not want to give up, he says.

Santos, after all, was Uribe’s Minister of Defense, and his relationship with judiciary is far from cozy. His judicial reform commission, for one, has yet to reach a consensus, months after final proposals were to be introduced to Congress. The government and the courts remain divided over proposals to overhaul the body that oversees internal judicial administration, and many worry that other reforms paper over serious problems with judges at lower levels, such as a lack of training.

Francisco Reyes Villamizar, a well-connected commercial lawyer who has been active in reform discussions, says the efforts “are looking at everything in a random, disorganized way.” True reform means dealing with issues of everyday justice, he says, not just the turf battles between elite institutions.

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