Colombian Constitutional Law

Leading Cases

Manuel José Cepeda Espinosa and David Landau

Provides in English for the first time the case law of the Colombian Constitutional Court with major contributions organized by theme
Offers concise, carefully chosen extracts of the Court's most important cases with notes and introductory materials
Contains notes to introduce cases, places contributions in a comparative perspective, and highlights updates to jurisprudence from principle cases
Provides a comprehensive introduction to the history of the Court, its structure and jurisdiction, its internal structure, and its interpretive style and role conception.
Chapters on subjects not usually covered in books of this genre, such as the rights of victims and indigenous groups, as well as social rights

Colombian Constitutional Law

Leading Cases

Manuel José Cepeda Espinosa and David Landau

Description

This book provides in English the case law of the Colombian Constitutional Court, which has become one of the most creative and important courts of the global south and the world since its creation in 1991. It offers concise and carefully chosen extracts of the Court's most important cases, along with notes and introductory materials to place them in historical and comparative context. The book covers the Court's landmark rights jurisprudence, including the decriminalization of drug possession, the legalization of same-sex marriage, the protection of social rights through broad structural orders such as the ones covering internally displaced persons and the right to health. It also covers the protection of the rights of indigenous peoples to cultural autonomy and to be consulted before economic projects are undertaken on their land, and the rights of victims of the country's long-running internal armed conflict to truth, justice, and reparations. Also provided are the Court's most noteworthy structural cases, particularly its successful attempt to limit the use of states of exception and its substitution of the constitution doctrine, which allows it to strike down amendments that replace rather than amending core principles of the existing constitutional order. The materials focus on the Court's contributions in a comparative perspective, showing how they are exemplary of a range of problems faced by courts around the world and particularly as an example of aggressive judicial review by the courts of the global south. At the same time, they demonstrate how many of the Court's key cases - such as the judicial review of the peace process with guerrilla groups or the striking down of an amendment to allow a popular president to seek a third term - are reactions to the historical features of the Colombian legal and social landscape.

Colombian Constitutional Law

Leading Cases

Manuel José Cepeda Espinosa and David Landau

Table of Contents
Preface
Chapter 1: Introduction to the Colombian Constitution of 1991 and the Constitutional Court
A. The Prelude to the 1991 Constitution: Institutional Decay and a Crisis of Public Order
B. The Making of the 1991 Constitution
C. The Structure and Powers of the Colombian Constitutional Court
D. The Constitutional Court's Decision-making Process and Interpretive Style
E. The Constitutional Court in the Post-1991 Political Context
F. Methodology and Plan of this Volume
Part I: The Constitutional Court
Chapter 2: The Role of the Constitutional Court
A. The Role Conception of the Constitutional Court
B. Precedent and the Effects of Constitutional Court Decisions
1. The Power of the Constitutional Court to Determine the Effects of its Own Decisions
2. The Construction of a System of Precedent
C. The Constitutional Block: Incorporation of International Law
Part II: Rights
Chapter 3: Dignity and Autonomy
A. Decriminalization of Narcotics for Personal Use
B. Euthanasia and Dignified Death
C. Personal appearance
D. Intersex Rights
E. Abortion
Chapter 4: Equality
A. The Equality and Dignity Rights of Same-Sex Couples
B. Equality, Affirmative Action, and Gender Quotas
C. Discrimination Against the Disabled and the Positive Dimension of Equality
Chapter 5: Freedom of Speech and Freedom of Religion
A. Limitations on Speech for Security and Decency
B. Limitations on Speech for Privacy and Reputation
C. The Freedom of Expression and Political Campaigns
1. Financing Political Parties and Campaigns
2. Access to Televised Debates
D. Religious Establishment
E. The Accommodation of Religion and Conscientious Objection
Chapter 6: Social Rights
A. Foundations of Justiciability: The Right to a Minimum Level of Subsistence
B. The Court and Economic Crisis
1. The Housing Finance Crisis
2. The Budgetary Crisis and Public Sector Salaries
C. The Right to Health: From Individual to Structural Remedies
1. Individualized enforcement
2. Structural Enforcement
D. A Structural Remedy for Internal Forced Displacement
E. Informal and Marginalized Work
1. Street vendors
2. Informal recyclers
3. Sex Workers
F. The Right to Water
Chapter 7: The Rights of Victims and Transitional Justice
A. The Rights of Victims During Criminal Processes
B. The Rights of Victims During Internal Armed Conflict
C. The Peace Process with Guerrilla Groups
Chapter 8: The Rights of Indigenous Peoples
A. Conflicts between the Rights of Indigenous Communities and their Members
1. Non-Traditional Criminal Punishment
2. Religious Conflict and Diversity
3. Cultural Practices and the Rights of Children
B. Diversity and Political Representation
C. The Right to Prior Consultation
1. Consultation on Projects Exploiting Natural Resources
2. Consultation on Government Programs
3. Consultation on Congressional Laws
Part III: The Separation of Powers
Chapter 9: The President: Problems of Executive Overreach
A. Limiting Executive Discretion
B. The Separation of Powers and National Security
C. States of Exception
1. Review of the Declaration of State of Internal Commotion
2. Review of Decrees issued during a State of Internal Commotion
Chapter 10: The Congress: Problems of Abdication and Deliberation
A. The Scope of Parliamentary Inviolability
B. Legislative Delegation to the Executive
C. Legislative Deliberation & Procedure
Part IV: Constitutional Change
Chapter 11: Constitutional Amendment and the Substitution of the Constitution Doctrine
A. Procedural Review of Constitutional Amendments
B. Control of Constitutional Reform via Referendum
C. The Substitution of the Constitution Doctrine
1. The First Reelection Decision
2. The Second Reelection Decision
3. The Fiscal Sustainability Amendment
Appendix 1: The Orders of the Constitutional Court
1. The Conditional Decision
2. The Deferred Decision
3. The Integrative Decision
B. The Tutela
1. Structural Orders
2. Inter comunis or inter pares effects
3. The State of Unconstitutional Affairs Doctrine
Appendix 2: The Constitution of Colombia (1991) (selected provisions)
Index

Colombian Constitutional Law

Leading Cases

Manuel José Cepeda Espinosa and David Landau

Author Information

Manuel José Cepeda Espinosa and David Landau

Manuel José Cepeda Espinosa is the President of the International Association of Constitutional Law (2014-2018) and was President and Justice of the Colombian Constitutional Court (February 2001-January 2009). He played an important role in the making of the 1991 Constitution as Presidential Advisor for the Constituent Assembly and Constitutional Drafting for President of the Republic César Gaviria Trujillo (1990-1991), and Presidential Advisor for legal affairs for the President of the Republic Virgilio Barco Vargas (1987-1990). He has written extensively on Colombian constitutional law and the impact of the 1991 Constitution. Before being elected to the Court, he taught constitutional law and was Dean of the Law School, at Universidad de los Andes (1996-2000), from where he holds a law degree. He holds an LLM from Harvard Law School. He has served as a consultant on several matters, most recently in the design of transitional justice institutions during the peace process in Colombia.

David Landau holds an A.B, J.D., and Ph.D in political science from Harvard University. He writes primarily about the field of comparative constitutional law, with a concentration on Latin America. His recent work focused on democratic transitions and the potential risks of constitutional amendment and constitution-making for democracy, as well as on judicial activism on socio-economic rights issues across the developing world. He has published in various journals including the Harvard International Law Journal and the International Journal of Constitutional Law. In 2011, Professor Landau served as a consultant on constitutional issues for the Truth and Reconciliation Commission of Honduras. Since 2012, he has been a founding editor of IConnect, the blog of the International Journal of Constitutional Law.

Colombian Constitutional Law

Leading Cases

Manuel José Cepeda Espinosa and David Landau

Reviews and Awards

"For the last several decades the Colombian Constitutional Court has created some of the most bold and humane constitutional jurisprudence on the planet. Sadly, the reach and influence of this remarkable body of work has been limited by the lack of readily available translations. It is a cause for rejoicing that Colombian Constitutional Law now remedies this unfortunate barrier." - Robert C. Post, Dean and Sol & Lillian Goldman Professor of Law, Yale University Law School

"Prepared by two leading experts on Colombian constitutional law, this volume will become an absolutely essential research and teaching tool in the comparative constitutional canon. With fluid and readable translations, it affords insights into the background and jurisprudence of one of the most innovative constitutional courts in the world — excerpting case-law on social welfare rights, on 'unconstitutional states of affairs' (suffered by a massive internally displaced people), on victim's and indigenous rights, and on other rights of personal liberty (including freedom of expression), equality, and dignity. Other chapters illustrate the Court's effort to reinvigorate a weakened legislature and restrain an over-empowered executive. Constitutional theorists will find much to learn as well in the closing chapter on unconstitutional amendments. Highly recommended!" - Vicki C. Jackson, author of Constitutional Engagement in a Transnational Era

"This valuable collection of materials and commentary on the work of the Colombian Constitutional Court makes accessible to students of comparative constitutional law a wide range of the work of one of the world's most interesting and important courts. The work of everyone in the field of comparative constitutional law will be deepened by reflecting upon the cases and materials provided here." - Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard University Law School