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Abstract

This paper "Political Justice? Assessing the Role of Colombian Courts" aims to be a contribution to the current debates on the consolidation of democracy, especially in the Latin American context. Democratic consolidation is seen as democratic institution building. The paper analyzes the empirical working of a partial regime, the judiciary, in interaction with other political actors.

After giving a historical overview of the Colombian judiciary during the last 40 years, the paper employs a composite indicator in trying to assess the effectiveness of judicial reform. The Constitution of 1991 has tried to resolve the long-standing crisis of the judicial branch by introducing a couple of new institutions, among them the Constitutional Court, the General Attorney’s Office (Fiscalía General), and the Supreme Council of the Judiciary (Consejo Superior de la Judicatura). Our aim is to analyze insofar these institutions have proved themselves as guardians of the rule of law and democracy in the context of citizen apathy and extremely high levels of violence.

Drawing on interviews with members and other people involved, the paper assesses the position of the respective institutions with regard to the political system, drawing on three key variables: independence, efficiency, and access to justice. Of the three institutions reviewed, the Constitutional Court and the Fiscalía turn out to be relatively independent, although not always completely efficient. The Court has been very accessible through a number of mechanisms (especially the tutela), while the Fiscalía’s monopolization of criminal investigations has led to mixed results in this respect. The activism and political significance of these bodies has been considerable in the years since their introduction, leading to a considerable "judicialization" of politics. The Supreme Council of the Judiciary, on the other hand, shows itself to be an inaccessible, inflexible, and inefficient institution with problematic independence. Its political role, therefore, consists not so much in the influence it exerts in the political system, as in blocking institutional reform on lower levels of the judiciary.

1. Introduction

In the last couple of years, the theory of democratic consolidation has taken up issues, which had largely been neglected up to that point: How do the rule of law and legal institutions contribute to the process of democratization? Which role can judicial actors empowered to sanction illegal behavior or abuse of power by state agents play in the institutionalization of democratic procedures? The debate has tried to establish the interdependence between democracy, accountability, and the rule of law defined as "a system of legal standards that are stable, general, non-retroactive, and public and that are applicable and administered impartially to all sectors of the population without discrimination" (Nino 1996: 164). Guillermo O’Donnell (1996: 44) has summed up the problem of "horizontal accountability" as follows: "The basic idea is that formal institutions have well-defined, legally established boundaries that delimit the proper exercise of their authority, and that there are state agencies empowered to control and redress trespasses of these boundaries by any official or agency". The following paper tries to address these issues by undertaking an empirical study of a specific agent of accountability, the judiciary, in the case of Colombia.

How do the rule of law and effective accountability relate to democracy? In the classic definition of Dahl’s "polyarchy," the procedural minimum of democratic institutions does not include these criteria. However, there seems to be widespread agreement that the rule of law and constitutionalism are "virtually definitional prerequisites of a consolidated democracy" (Linz/Stepan 1996: 10). David Beetham’s democratic audit (1994: 37) incorporates various rule of law indices like legal accountability of public officials, independence of the judiciary, and effective access to justice. Leonardo Morlino (1991: 58) cites respect for the law as a precondition for democratic consolidation. For Samuel Valenzuela (1992: 61), the minimal procedures of a democracy include "the separation of powers, without which there is no executive accountability nor protection for the rights of citizens." A consolidated liberal democracy must dispose of institutional mechanisms that protect the democratic rules of the game, thereby ensuring that all significant political actors respect and do not undermine them. If such institutions do not work properly, there is a high degree of probability that "democracy is not the only game in town" (Di Palma 1993) and that "invisible powers" (Bobbio 1996) determine political outcomes. "Brown areas" (O’Donnell 1994a) characterized by clientelism, personalism, corruption, and privatization of state power predominate the political map in such systems.

Consequently, the consolidation of democracy is understood as the construction of such specific institutions on a micro level or, as Schedler (1997: 18) has called this approach, "subsystemic institutionalization." The concrete institutional mechanisms to guarantee the rule of law and sanction state abuse of power, however, are not immediately self-evident. A wide variety of institutions is possible, including electoral authorities, the judiciary, internal accounting offices (contralorías), disciplinary agencies (procuradurías), congressional oversight committees, ombudsmen, anti-corruption bodies, central banks, etc. Following the observation of Arturo Valenzuela (1993: 4) that "in the absence of strong judicial institutions, the rule of law is often precarious" our paper will focus on the judiciary as the "third branch" of government and its role as an agent of horizontal accountability. The contribution of the courts to democracy is presumed to be two-fold, fulfilling negative and positive functions:

-) Prevention: the possibility of effective judicial sanction diminishes the likelihood of political actors opting for a strategy of defection from the democratic rules of the game.

-) Legitimization: through the public imposition of sanctions in cases of abuse of power or corruption, the judiciary contributes to legitimize the political system, giving citizens the feeling that democracy "works".

I consider the judiciary to be a partial regime in the terminology of Philippe Schmitter (1996), denoting a set of actors and rules, formal and informal practices with a certain degree of institutional autonomy. The system operates in a sociopolitical context with which it interacts on a number of issues. I do not assume a strict separation of powers, but model the relationship between the branches as a series of mutual dependencies and various forms of cooperation. The legislature for example elaborates the normative program that the courts apply. Judicial appointments depend on or are reviewed by other state organs. The judiciary has to rely on the executive branch to enforce its decisions. Judicial review can be a decisive influence in shaping acts of legislation. The courts’ power to act as an agent of accountability by investigating and convicting corrupt public officials also has important implications for the other state powers. As a consequence of these interdependencies, the judicial branch is an important player in many political processes. The following chapter of the paper tries to develop a composite indicator for measuring the degree of institutionalization of the judicial subsystem. This should give us some tools to assess the contribution of the administration of justice to a consolidating democracy.

2. An indicator of institutionalization for the judiciary

In the introduction, we have defined democratic consolidation as subsystemic institutionalization, or in other words, the construction of political institutions which -through their work- strengthen and habituate the procedures and values of democracy. If such institutions are weak or non-existent, we are confronted with "noninstitutionalized democracies" (O’Donnell 1994b: 59). All institutions are results of a process of social construction and interaction, whereby certain recurring forms of organized cooperation acquire stability over time and become valued. To fulfill their tasks adequately and efficiently, political institutions have to be filled with life, have to work according to their codes and programs. The term "institutionalization" is usually used to describe this process of social construction over time. According to Huntington (1968: 12), "the level of institutionalization of any particular organization or procedure can be measured by its adaptability, complexity, autonomy, and coherence". Concerning our subject, the justice sector, we can formulate the hypothesis that following factors crucially determine the institutionalization of this subsystem of the polity: 1) independence, 2) efficiency, and 3) access to justice. These factors are closely interrelated, and separating them might appear arbitrary, but by independent analysis helps to identify the strengths and weaknesses of institutionalization of the courts.

2.1. Judicial Independence

The independence of the judiciary has been subject to a number of studies (Simon 1985; Rico/Salas 1990; Kahn 1993; Dakolias 1996), which have almost all come to differentiate between several kinds of independence. Fiss (1993) distinguishes between party detachment, individual autonomy and political insularity. We will not be concerned with the first two, but just with the last, independence with respect to the political institutions of government. The majority of authors assert the crucial importance of a politically independent judiciary in the democratization process (Valenzuela 1993: 4; O’Donnell 1994a: 159; Nino 1996: 163; Domingo 1997: 5). Others like Roberto Gargarella (1996) and Robert Dahl (1989: 188) remain highly skeptical of the intrinsic worth of "quasi guardianship by the judiciary" due to its basically nondemocratic nature. The only way to reconcile this form of rights protection with democracy, according to Dahl, is to sufficiently restrict the authority of the judicial guardians.

The problem, which arises here, is a complex one. Limitations on the independence and competence of the judiciary might leave these institutions without the capacity to effectively combat what Carlos Nino (1996: 163) has called the "depletion from the inside" of democratic institutions, via phenomena such as abuse of power or massive corruption. Giving the courts too much autonomy, on the other hand, "may promote a privileged and archaic self definition of the judicial corporation and its mission, without any accountability of its own to other powers in the state and in society" (O’Donnell 1997: 25). In short, "an independent judiciary can be a threat to democracy" (Fiss 1993: 56).

Our approach to this issue is characterized by two observations, one theoretical, the other empirical. First, I consider access to judicial institutions, which are capable to effectively resolve conflicts and grievances to be a crucial element of democracy (Ungar 1997), especially in societies that have historically been unequal. I share the opinion of Paul Kahn (1993: 77) that "litigation is the great equalizer within a democratic order, as (...) it equalizes distinctions of private power and, even more importantly, the distinction between citizen and government." A truly independent judiciary is necessary to bring about this empowering effect for all citizens. Second, in Latin American political systems, the judiciary has generally and historically been a weak branch of government. The centralization of political power in the executive, regional systems of privatized power, and a merely rhetorical tradition of liberal democracy have not, as a rule, given the judiciary room to assert itself as an independent actor of public accountability. In the majority of countries of the hemisphere, corruption, patrimonialism, low efficiency, and submission to the executive have characterized the administration of justice (Wynia 1990: 28). The foremost danger in the current setting of Latin American democracies does therefore not seem to be lying in the judicial branch acquiring too much power or independence. On the contrary, there still exists the serious possibility that the historically dominant executive branch will continue its hitherto largely successful efforts to circumvent, undermine or prevent independent judiciaries from supervising governmental conduct and sanctioning eventual abuses. Our approach to the political insularity of the judiciary looks at the following indicators:

-) how the institutional position of judges is protected under the law (tenure, judicial immunity, stability of judicial salaries, appointment procedures).

-) if there exists a unitary judicial system (absence of special courts, police judicial powers, military jurisdiction).

-) whether the judiciary has been accorded the competence to act as a check on the other branches (via judicial review, habeas corpus, or amparo).

-) if the judicial branch enjoys autonomy with regard to the selection and management of its personnel and with regard to its budget.

2.2. Judicial Efficiency

It is rather well known that institutional efficiency is difficult to measure. Normally, it is associated with general criteria, such as output or fiscal discipline. Some traditional quantitative parameters to assess the efficiency of the judiciary are number of cases pending (caseload), average duration of a case until resolution, rate of convictions in criminal cases, and judicial budget (percentage of national budget allocated to the courts) (Guzmán/Reyes 1992; Rubio 1996; Corporación Excelencia en la Justicia 1997). Due to the complexity of its services, however, the justice sector cannot be evaluated solely by these means (Solis/Wilson 1991: 93). Environmental factors, like quality of and respect for procedural codes, court facilities (statistics, information systems, space, maintenance of courthouses, security), judicial education and training should be taken into account. These are difficult to measure, but are of crucial importance for efficiency.

Special consideration has to be given to the function of the judiciary as a guardian of horizontal accountability. The efficiency of the courts in this fundamental task is, after all, crucial for determining its contribution to the consolidation of the rule of law and democracy. The results of this activity of control and supervision depend upon the procedural tools which the respective constitution and laws put at the disposal of the judiciary. Among the standard inventory are disciplinary proceedings (with sanctions ranging up to destitution), criminal investigations and prosecution, individual complaints procedures for fundamental rights violations, and judicial review of legislation. We will assess judicial performance in this field by looking at the number and importance of the following types of court action:

-) Criminal investigations and convictions of politicians and public servants.

-) Civil rights complaints proceedings and percentage finding a violation by state agents.

-) Cases of judicial review of national legislation and number of findings of unconstitutionality.

Put together, these factors should give an overall picture of efficiency, identifying strengths and weak spots in the performance of judicial institutions.

2.3. Access to justice

Access to justice is an indicator which measures the possibility of the citizenry to use the institutions and mechanisms of the justice sector to resolve conflicts or problems which legally fall within the competence of this sector (Solis/Wilson 1991: 90; Ungar 1997: 3). Access is an important factor in the institutionalization of the judiciary. When the courts are unable or unwilling to provide their basic service of rights protection, not only democratic citizenship is put at stake (Domingo 1996: 17), but the very raison d’etre of the judiciary as an institution of conflict resolution and democratizing forum of state-society relations is called into question. Furthermore, the public’s perception of the judiciary can be seen as an indicator of the overall legitimacy of the political system. The incapacity of the judicial branch to remedy what is felt to be a general lack of justice can contribute to general discontent, to a questioning of regime legitimacy. "When resentment of justice begins to play a role in the politics of country, then access to justice invariably plays one as well" (Ungar 1997: 6).

The literature on access to justice has identified various obstacles to the availability of formal judicial mechanisms to individuals who need their services. In the terms of Dakolias (1996: 37), we can speak of economic, psychological, informational, and physical barriers. For our present purposes, we will examine how far these problems affect the administration of justice by employing these following factors:

-) Economic obstacle: distribution of wealth, litigation costs, corruption, attorney fees, existence of state legal aid and public defenders.

-) Information obstacle: knowledge of rights and institutions, existence of free legal services (consultorios jurídicos), facility and transparency of proceedings, and access to documents.

-) Confidence obstacle: public perception of the judiciary, levels of distrust, forms and intensity of discrimination in the judicial systems.

-) Physical obstacle: distribution of courts in the countryside, number of judges per capita, availability of alternative dispute resolution mechanisms (e.g. justices of the peace, conciliation).

An inventory of these factors, branching out into their different indicators should enable us to make a realistic assessment of the overall performance, including the political role, of the judicial institutions in our case study, Colombia.

3. The Colombian Justice System: Crisis and Reform 1991

The Colombian judiciary is embedded into a political system whose democratic nature has been subject to considerable controversy. I want to examine how far these structural problems of Colombian democracy have affected the judiciary power by providing an historical overview. I will adopt a classification of Colombian politics suggested by Murillo (1993: 91): the National Front (1958-74), the years of "desmonte", or gradual liberalization of the National Front arrangement (1974-90), and the time since the adoption of the new constitution (1991-).

The National Front has been a reaction of the political elite to the enormous partisan violence, which the country saw in the late 1940s, and the subsequent military dictatorship of Rojas Pinilla. The two traditional parties, Liberal and Conservative agreed to share power equally, excluding any other political force (Barry/Hellman/Solaun 1980). All three branches of government were subject to the rule of "parity," i.e. the appointment of an equal number of public officials by both parties. The National Front removed bipartisan competition and replaced it by bureaucratic turf wars and clientelist mechanisms of state resource distribution (Chernick 1989: 288). In this context, the judiciary occupied an ambiguous position. On the one hand it was subject to political parity, with the important difference that judicial parity was designed to continue indefinitely, whereas that political formula was just transitory in the other branches (Findley 1980: 426). On the other hand, at the insistence of the military, the constitutional referendum of 1957 preventively "neutralized" the judiciary by establishing the principle of co-optation (Uprimny 1997a: 79). This gave the courts complete control of the appointment procedure. The members of the Supreme Court and the Council of State were also guaranteed life tenure until reaching mandatory retirement age. These measures enhanced judicial autonomy. Critics, however, pointed out that the lack of accountability and legislative oversight resulted in a form of "judicial clientelism" which was hardly any better than the practices holding sway in other public agencies (Caceres C. 1994: 68).

The bipartisan agreement had circumscribed formal powers of the presidency, but the inherent immobilism of the National Front soon led to a de facto increase in presidential power. State of emergency decrees and other extraordinary powers to circumvent factionalism and executive-legislative deadlock increased dramatically (Hartlyn 1994: 228). The state of siege was imposed for an average of three years during every presidential administration (Gallón G. 1979). Consequently, judicial practice during the National Front was largely complacent and deferential to the executive. Although the legal basis for autonomous performance existed (e.g. the judiciary was empowered to review the constitutionality of acts of Congress and executive degrees), the Supreme Court and the Council of State were extremely reluctant to expand their control over presidential actions. A study by Findley (1980) has shown that the Supreme Court has continuously refused to subject state of emergency measures to in-depth-review, stating that these decisions were political ones rather than legal, with only the observance of formal constitutional criteria being subject to review. Also, in other fields, the autonomy of the judiciary was subject to tight controls. The Constitution of 1886 provided for a judicial career, with statutory provisions from 1970 regulating the details, but it was never put into practice (Hinestrosa 1987: 38). The judicial budget was controlled by the Rotating Fund of the Ministry of Justice, the executive branch directly influenced structure and territorial distribution of the Courts, human and material resource management, and labor conditions of judicial personnel (Caceres C. 1994: 67).

The period of "desmonte" of the National Front consisted in various intents of political reform, aimed at gradually eliminating its limitations on liberal democracy. Chernick (1989: 296) has pointed out that none of the reforms initiated by successive governments lead to the consolidation of democracy, but just modified the initial bipartisan accord. President López Michelsen, who had been elected on high hopes, chose to continue the "just and equal participation of the second strongest party," thereby prolonging the National Front (Leal 1995:34). López was convinced that the two most pressing problems were judicial reform and municipal administration, and convoked a "small constituent assembly" (1977) to reform them (Palacio 1989: 348). The project was subsequently declared unconstitutional by the Supreme Court, who resisted the executive’s encroachment on the judicial power. This marked the beginning of a more activist judiciary, which started to act as a check on certain executive powers (Hartlyn 1994: 232).

In the late 1970s, the growing erosion of legitimacy, persisting structural problems like corruption (Cepeda U. 1997), informal barriers to participation (Gallón G. 1989), and escalating levels of political violence (Sánchez/Peñaranda 1993) started to shake the legendary stability of the Colombian political system. The military acquired a growing independence of civilian control, and the guerrilla openly defied the democratic process, putting state institutions under considerable pressure. It became fashionable to speak of the Colombian "crisis" (Murillo 1993; Leal 1995), a crisis that also affected the administration of justice (Palacio 1989; Nemoga 1994).

Each presidential administration tried to adopt a different strategy to contain the crisis. Julio César Turbay (1978-82) adopted a tough security statute, which gave the military wider powers of arrest, limited civil rights and turned a number of crimes over to the military courts (Chernick 1989: 299). The civilian judiciary, though opposed to these measures, was initially unwilling to confront the executive on the issue and did not to stop the incursion of the armed forces into its traditional competencies. The main results of the military escalation were a deteriorating human rights balance and the consolidation of the guerrilla in various regions of the country. Motivated by Turbay’s failure, President Belisario Betancur (1982-86) tried to negotiate a peace settlement with the insurgent groups FARC, M-19 and EPL. When the peace process broke down, the M-19 resorted to the suicidal plan to accuse the President before the Supreme Court. In November 1985, an M-19 commando, counting on the inviolability of the justices and magistrates of the nation’s highest courts, took the Palace of Justice by force. By retaking the Palace by means of war causing over 100 casualties among justices, civil servants, public employees, guerrillas and civilians, the armed forces clearly demonstrated that the judicial branch was not inviolable for them (Carrigan 1985). These events illustrated the weak institutional position and neglect of the judiciary, and profoundly traumatized the judges and magistrates of Colombia (Hinestrosa 1987: 13). However, they also created a strong determination to defend judicial autonomy in the face of executive excesses, initiating a battle between the military and the Supreme Court.

The second half of the 1980s was characterized by growing evidence that the administration of justice was collapsing. Social and political violence escalated to unprecedented levels, murder rates soared from 9.000 in 1980 to 28.000 in 1991, and the guerrilla grew in strength and numbers (Corporation Excelencia en la Justicia 1997). The most obvious problems came from the explosion of drug related violence from 1984 onwards. When the cartel of Medellin declared "war" on the State and unleashed its narcoterrorism against the police and judicial apparatus, the judiciary had to bear the brunt of the assault. According to statistics, more than 80 functionaries of justice were murdered in the period 1985-88, compared to 24 in the preceding years 1983-84 (Comisión Andina de Juristas 1992). In 1989, the worst year of the violence, the massacre of La Rochela took the lives of 12 judicial personnel that were on route to investigate the site of a paramilitary crime (Nemogá 1996: 20). The effects of narcotraffic on the judiciary were not only violence and intimidation, however. Even more devastating in the long run was the influx of drug money into the apparatus, corrupting hundreds of judges and prosecutors (Mojica M. 1995: 59). In a survey in the mid-eighties, 26.7 % of judges interviewed responded that they had repeatedly been subject to attempted bribery (Velez/Gómez/Giraldo 1987: 50).

This onslaught by the drug traffic came on top of long-simmering structural problems of the Colombian judiciary, like a huge backlog of cases, low overall efficiency, enormous impunity rates, and dangerously low levels of confidence. The drug violence made manifest the impunity and helplessness of the judiciary and reduced even more the already notorious incapacity of the State to monopolize the use of force (Leal 1995: 49). The diagnosis that the judicial power was in crisis became a commonplace; the government however, was without any clear plan. The Barco administration (1986-90) had a total of seven ministers of justice, some of them hardly lasting a month in office (Nemogá 1994: 108). Calls for reforming the judiciary were frequent, with proposals ranging from constitutional amendments to various ideas for raising judicial efficiency. Since the government of Barco found the constitutional avenue of reform barred, it implemented ad hoc reforms by emergency decrees. Among them were the administrative reorganization of the justice sector (newly formed Superior Council of the Administration of Justice), the creation of public order courts, the modification of Habeas corpus, and the introduction of the new crime of terrorism (Palacio 1989: 369; Caceres C. 1994: 67).

Ironically, while the rest of the justice system was largely crumbling under the enormous pressure from all sides, the Supreme Court gradually increased its judicial activism versus the executive branch. The Court invalidated several of Barco’s emergency measures, struck down the extradition treaty between the US and Colombia (1986), and declared the establishment of a "special tribunal" to judge political crimes as unconstitutional (1987). This attitude of the Court and widespread hostility to political reform in Congress led Barco to call for a constitutional referendum, which was the beginning of the Constituent Assembly of 1991.

The constitutional reform of 1991, which took place under the administration of César Gaviria,
completely changed the rules of the game of Colombian politics. With the new Constitution adopted in October of that year the country began a transition to a full-fledged democratic regime (Pizzarro 1993; Gaitán 1996). The government had originally wanted to limit the Constituyente to a predefined catalog of topics (including judicial reform), leaving the core of the old constitution untouched, but the members of the assembly adopted an entirely new constitutional document. Judicial reform was one of the main issues of the new constitution. It was debated in the Commission IV, integrated by 9 members, representing not only the liberal party and two conservative factions, but also the demobilized guerrilla EPL and M-19 (Dugas 1993: 60). The resulting restructuring of the justice sector was a compromise. It introduced a new Constitutional Court, eliminated some constitutional provisions on the position of a judge, and incorporated the Superior Council of the Judiciary into the constitution. It also created the independent General Prosecutor’s office, the People’s Defender, modified the Procuraduría, and gave constitutional foundation to several forms of alternative dispute resolution, including the justices of the peace (Giraldo 1992).

The reformers were hoping to create mechanisms adequate for the solution of problems like impunity, excessive procedural delays, and corruption. Improving the efficiency of justice was mainly carried out on two lines: Furthering the independence of judicial institutions, and "dejudicializing" various responsibilities, making way for non-judicial settlement. This was intended to meet a double purpose. A decongested and efficient judiciary should better protect the democratic institutions from organized crime, and the citizens from common crime (Gómez A. 1996). Another important issue was improving judicial access and thereby raising the level of democratic legitimacy of the courts (Eastman 1993).

After the 1991 Constitution, some observers spoke of a "revolution in the justice sector" (Dueñas 1997: 86), while the more skeptically minded pointed out that a constitutional reform did not change the social and political reality of the country (Garcia V. 1993; Valencia 1997). There were also critics who detected various problems in the new structure of the judiciary, e.g. the division at the top of the branch between the Constitutional and the Supreme Court, the Council of State and the Superior Council of the Judicature (Chahín 1996: 143). Conflicts of competencies were to be expected (Palacios 1995: 341). The next chapter of the paper will try to assess the successes and failures of the 1991 constitutional reform of the judicial branch.

4. The Colombian judiciary after 1991

4.1. Judicial independence

Trying to assess the degree of independence of the Colombian judiciary, we will first look at the legal protection accorded to the judges. Generally, we have to differentiate between the highest courts in the country (Corte Constitucional, Corte Suprema, Consejo de Estado) and the ordinary courts, divided into administrative and civil/penal law branches. Several special courts also exist but do not concern us at the moment. The Superior Council of the Judicature (Consejo Superior de la Judicatura) has a unique position in the system, since it not only serves for administrating the branch, but also has the power to decide over conflicts of competency between courts.

Life tenure, in comparison to the 1886 Constitution, is not provided for in the Constitution of 1991. Magistrates of all three highest courts have one eight-year term of office, which is non-renewable (Art. 233 Const.). Giraldo A. (1997: 20) believes that this has contributed to their decisional autonomy. Although this remains doubtful, the justices themselves do not seem to think that this provision is a major handicap on their independence. Staying in office is subject to "good conduct," and magistrates who violate this rule can be removed from their cargoes. Such impeachment of one of its members is not responsibility of the respective Court, but is carried out by the Senate on request of the House of Representatives (Art. 13 (1), Law 270). All other judges have received the benefit of unlimited tenure "subject to good conduct and while they render satisfactory output" by the Law 270, establishing a career judiciary (Giraldo A. 1993: 97).

Immunity from lawsuits for decisions taken in their official capacity is not guaranteed for Colombian judges, neither in the Constitution nor in Law 270. The Constitution does also not prohibit the reduction of judicial salaries, but Art. 152 (7) of the Law 270 says that judges should receive pay "according to their function, dignity and hierarchy, which cannot be reduced in any way." The autonomy of the judiciary in the appointment procedure depends on the court and level of the position under consideration. There are two different models. For courts belonging to the civilian, criminal, or administrative jurisdiction (including Corte Suprema and Consejo de Estado), new judges are elected by the Corporation or by superior judges from lists which are assembled by the Superior Council of the Judicature after a preliminary exam. The Senate elects the magistrates of the Constitutional Court, from lists assembled by the President, the Supreme Court and the Council of State (Art. 44, Law 270).

A unitary judicial system has never really existed in Colombia. The phenomenon of "parainstitutionalism" (Palacio/Rojas 1989: 82) has been a determining factor in preventing the evolution of a strong unified state, and by extension, of all encompassing, unitary state institutions. This is evident in the judiciary, were there are not only the ordinary civil and criminal courts, and separate European-style administrative and constitutional jurisdictions, but also various special courts, like the military courts, or the public order courts, which frequently assume delicate cases. The attempts to abolish the military jurisdiction in the Constituyente were soon abandoned and there is an ongoing battle about the constitutional limits and competencies of these courts. The public order courts were created by decree in 1988 to combat narcotrafficking and guerrilla violence. Although their working has repeatedly been questioned as violating due process and fair trial standards, they have still not been replaced (Nemogá 1996). A number of petty crimes have been turned over to the Police for investigation and sentencing e.g. personal injuries, theft or counterfeiting of checks. The police are formally subordinated to the judiciary in criminal investigations, but have wide discretion and cooperation with the prosecutors often does not work.

The Constitution and the Law 270 have given the courts wide legal powers to act as a check the other branches of the State. First and foremost, there is the individual action against fundamental rights violations called tutela (Art. 86 Const.). This procedural tool can be interposed by anybody who feels his rights threatened or infringed by any public authority. The petition can be brought before any judge who is obliged to resolve the complaint within 10 days. The Constitution also protects the citizen from arbitrary arrest by stipulating the right to impose a petition of Habeas corpus (Art. 30). Article 241 grants the Constitutional Court the power to review acts of legislation on request of any citizen, on request of the Executive or automatically, if a statutory law is concerned. The Court also has the control of all state of emergency decrees.

The management of the judicial branch with regard to budget and personnel has largely been turned over to the new administrative organ at the top of the hierarchy, the Superior Council of the Judicature. This body is made up of two Senates, the administrative chamber (six members, elected by the highest Courts for eight-year terms), and the disciplinary chamber (seven members, elected for eight years by Congress on government proposal). The Council is the supreme organ of the judicial power, administrates the branch, can investigate the conduct of judges, and decide over appointments and promotions. The draft judicial budget has to be elaborated by the Council, but is subject to approval by the executive branch and by Congress (Art. 256 (4) Const.). The autonomy in fiscal matters for the branch is therefore limited. A special case is the Prosecutor’s Office, which not only enjoys fiscal and administrative autonomy (Molano L. 1992: 70), but also received an explicit constitutional guarantee that prohibits the Executive to modify its structure or competence in a state of emergency (Art. 252 Const.).

Summing up, the independence of the Colombian judiciary has been improved by the constitutional reform of 1991, but there remain areas of concern. While the Ministry of Justice has lost many of its competencies to manage the branch technically and functionally, the executive and legislative have regained substantial influence via the appointment procedures (Moncayo 1995: 143). Especially the election of the majority of members of the Superior Council of the Judicature has been characterized as a "serious limitation on judicial autonomy" (Giraldo A. 1997: 20) That the Council can become object of political manipulations was shown immediately after the transition to the Constitution of 1991. President Gaviria appointed, based on a transitory article of the Constitution, the first members of the Consejo Superior de la Judicatura. Immediately, the traditional clase política intervened and Congress annulled this norm, stripped the newly designated magistrates of their position and appointed new members of their own liking (Pizzaro 1993: 165). The continued existence of parallel jurisdictions outside the judiciary is also an important limitation on judicial autonomy and independence.

4.2. Judicial Efficiency

The Colombian judiciary has been diagnosed as being in crisis for a number of years. The traditional indicators largely support this finding. The number of cases pending at the end of 1994 has been calculated as follows: administrative law 38.176, civil law 1.426.834, family law 375.777, penal law 602.890, and labor law 129.797 cases, which makes for a total of more than 2.4 million cases pending (Corporación Excelencia en la Justicia 1997: 6). Interestingly, backlog figures have not been substantially influenced by the adoption of the 1991 Constitution. Numbers for the early 1980s show 1,397 million penal and 1,337 million civil cases pending, with labor law statistics unavailable (Giraldo A. 1991: 122 s). The substantial reduction in criminal law cases is due to the 1987 reform of the code of penal procedure, which abolished the jury trial, established a special judicial police (CTI), and introduced the public order courts. The most effective and controversial reform of 1987, however, was the provision not to open criminal investigations without a known suspect (Gúzman L./Reyes A. 1992: 25). This measure cut the number of criminal proceedings opened by more than 100% between 1987 and 1994 (Rubio 1996: 32). More recent reforms to discongest the judiciary, e.g. negotiated sentences or benefits for collaboration with the prosecution have not had measurable effects on caseload. Criminal courts are still operating at full capacity, with a tremendous backlog congesting their services (Rubio 1997a: 17). Overall efficiency of Colombian courts has not improved, as can be seen clearly in the civil law field. In 1995, 800.000 new cases were filed to join the 1,5 million cases pending from preceding years. This was matched by about 250.000 sentences (Rubio 1997b: 10).

Average duration of a case in the courts is 3 years and 9 months in civil litigation and 3 years 2 month in penal proceedings (Consejo Superior de la Judicatura 1995: 18). The rates of impunity are alarming by any measure. Rubio (1996: 18) estimates that out of 100 crimes, 31.5 are reported, 9.9 are investigated by the prosecution, 2.8 reach the stage of trial and in 1.7 there is a conviction. In real numbers, this means that in 1995 there have been around 36.000 convictions with an estimated number of crimes above 3,5 million (Uprimny 1997b: 136).

The judicial budget has been growing over the last decade, according to figures by the Corporacion Excelencia en la Justicia (1997: 10), going up from 0.6% of GNP in 1980 to 0.99% of GNP in 1990, reaching 1.17% of GNP in 1995. This means that Colombia has been spending considerably more on its judiciary than other Latin American countries, dedicating 4.46% of its national budget to this branch of government (Ministerio de Justicia 1995: 22). These figures have to be put into context, however. According to Portafolio (1997), the fiscal crisis of Colombia has been affecting the judiciary, with its budget shrinking over the last three years, reaching an all time low in 1998, due to drastic cuts. The judicial system is currently in financial trouble, no money being available to complete various justice buildings, including the unfinished Palace of Justice. The union of judicial personnel, ASONAL Judicial, haws taken strike action in autumn of 1997 to prevent cuts in the real wages of their members. The only exception to this general malaise is the Fiscalia General de la Nacion, which has a separate budget that is almost as high as the one for the rest of the branch.

Concerning environmental factors, the Superior Council of the Judicature has established an Integrated System of Judicial Statistics in corporation with the DANE, which is currently in probation (Guzmán/Reyes 1992: 62). The numeration and classification of judicial cases has been unified. Also, there exists a "Unidad formacion y informacion judicial" with the Council, which is collecting information on cases and sentences. This information has been made available over the Internet, and an Intranet system for all the courts in the country is being planned. Available space and courthouse maintenance depends very much on the location and hierarchical position of the court under consideration. While Constitutional Court justices do not complain about their working environment, local or municipal judges in far-out regions of the country often do not encounter favorable conditions for doing their jobs.

Judicial training and education also present a very mixed picture. While some law schools give an excellent education, others produce graduates who leave much to be desired. Quality control has not been a high priority of the Colombian Ministry of Justice. Judicial personnel are trained in the Rodrigo Lara Bonilla School of the Judiciary, which is still very much of the old positivist style of Latin American legal education. Many judges therefore do not have the necessary tools to adjudicate in a complex and highly conflictive social environment, a problem which was aggravated by the new guarantist and rights-oriented Constitution of 1991. The quality of procedural codes the courts have to apply presents some further problems. Studies have shown that, starting in the late 1980s, penal and civil legislation has exploded dramatically (Rubio 1995: 56). A number of ad hoc laws and decrees were passed to speed up proceedings and bring the infamous "tramitomanía" to an end. Special legislation designed to meet some urgently arising need (e.g. prison overpopulation) was frequent (Gómez/Orozco 1997). This has not helped judicial coherence or created stability of expectations, but has produced considerable insecurity in the legal community and the courts.

Finally, the judiciary has been a very activist and strong protagonist in the field of horizontal accountability. The Consejo de Estado has sanctioned a considerable number of congressmen, who have violated congressional regulations with loss of office. The Attorney General's Office has initiated a number of high profile criminal investigations against active politicians, basically for reasons of drug money financed political campaigns. The most prominent target of these investigations has been the President himself, Ernesto Samper Pizano (1994-98) even though the members of the Camara of Congress finally absolved him (Comisión Ciudadana de Seguimiento 1997). The Fiscalía has been able to use its institutionally independent position to accuse congressmen, ministers, members of party directorates and other high political figures and functionaries of the State (Uprimny 1996). In several of these cases, there has been a conviction by the Supreme Court. However, the Fiscalía has been much less successful in bringing down common crime, which has lead to the suspicion that the Attorney General is prioritizing certain high-profile cases in which he has a personal interest. Opponents were quick to accuse the institution of "politicized justice" (Martínez 1997) and of abusing its tremendous powers (Camargo 1995).

On the civil rights and constitutional control front, the Constitutional Court has shown a very high profile. The acción de tutela has been enormously successful, with 2089 cases (1992-96) before the Constitutional Court alone, with an average percentage of slightly below 50% being decided in favor of the applicant. The Court has also repeatedly struck down acts of Congress or presidential decrees as unconstitutional, with an average percentage of 30.48% of findings of unconstitutionality (of a 1053 cases total 1992-96) (Observatorio Constitucional 1998: 19 ss). This shows that the Court is taking its role as a guardian of executive and legislative accountability very seriously and is also not afraid to address controversial issues.

4.3. Judicial access

The Constitution of 1991 in Article 229 explicitly guarantees everybody's right to accede to the judiciary. It has tried to improve judicial access by a variety of measures: decentralizing and privatizing the administration of justice, introducing new forms of non-judicial settlement, and giving incentives to the courts to work more efficiently. Briefly examining our indicators, we have to conclude however, that the situation is still far from perfect. Concerning the economic obstacle, it is obvious that there still exists a gulf of economic inequality and this prevents many people from seeking redress in the formal justice sector. State means of legal aid and public defenders are very scarce. There are a total of 254 public defenders in all of Colombia, which have taken 5348 cases in 1994 (Moncayo 1995: 96). Compared to the number of cases in the criminal justice system, this is insignificant. Although law schools have been obliged by law as early as 1972 to provide free legal services, this does not help in wide rural parts of the country because almost all universities are concentrated in urban areas. Law school graduates were recently obliged by law (No. 446 of 1998) to render one year of unpaid legal service to obtain their professional license. The effects of this measure remain to be seen.

As regards confidence in the judicial system, a recent study has shown that as many as 92% of all crimes in metropolitan Bogota are not brought to the attention of authorities, because there is a widespread lack of trust in the judiciary. The last national survey of households carried out by the DANE in December of 1995 has yielded the following results: 62% of crime victims "did nothing" after the fact, 1% "made arrangements", 5% took justice in their own hands, and only 31% reported the incident. According to figures of the National Police, each year fewer crimes are reported, not only in relation to property but also concerning homicides (Rubio 1996: 59 s). A survey by the FES foundation in 1995 has found that 96.8% of the sample believed that judges can be bought, and 93% were of the opinion that the social position of the accused affects the sentence (Corporación Excelencia en la Justicia 1997: 5). In short, all data point to the fact that the justice system is widely regarded as corrupt, inefficient, insecure, and unjust.

Colombia has a record 17.1 judicial functionaries per 100.000 inhabitants (Ministerio de Justicia 1994: 23), but this has not contributed to a wider availability of legal services, basically due to the concentration of the courts in the larger urban areas of the country. A case study by Galvis (1997) shows that outlying departments like Casanare have very deficient judicial infrastructure, with too few judges, antiquated systems of organization, and no space for archives, public hearings, or conciliation sessions. Various alternative dispute resolution (ADR) techniques have been introduced by the 1991 Constitution as a means to discongest the judiciary, e.g. conciliation (Law 23 of 1991), arbitration, and friendly settlement (Law 446 of 1998). According to available studies (Gómez A. 1995a; Instituto SER 1996) these mechanisms have started to work in practice, but the results still leave much to be desired. In the casa de justicia in Cali, which is a pilot project, conciliation settlements have been ranging between 29% in the Centro de Conciliación, 22% in the local ficalía and 17% in the Comisaría de Familia. (Instituto SER 1996: 5 ss) ADR is still implemented on a very small scale and has not reached a large segment of the population. Furthermore, problems like lack of knowledge, absence of trust and failure to comply hamper recourse to ADR techniques.

Summing up, judicial access is still a huge problem in Colombia, especially because of lack of trust and the scarcity of judicial institutions in the countryside.

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