Michelle Bernier*
The constitutionalist Rodrigo
Uprimny said that, the Colombian justice is ambiguous and paradoxical, while
trying to legislate on everything, broad discretion is given to judges, who are
increasingly distancing themselves and their decisions from the citizenry. It
has some aspects that work well, but others are terrible which end up causing
more problems than what was actually intended to be solved. The Colombian
judicial system has always prided itself on enjoying a great deal of autonomy
from the political regime and a notorious institutional stability. According to
Sánchez (2013), to maintain this distance between
politics and the judiciary, the co-optation process was fundamental, which
granted autonomy to the branch to fill vacancies without them being directly
appointed by the government or other power structures.
However, co-optation combined with
other factors such as the lack of transparency, a misconception of judicial
independence, and a few internal controls, have converted judicial autonomy and
independence into judicial corporatism. Formal controls are currently
insufficient, while non-formal and informal controls are gradually gaining
importance as they adapt to the needs of
individuals and not to the politicians in power. For instance, the status quo
of the High Courts. Cliques of power where real clans fight for their
successors and their dynasty as if they were royal houses. According to Ramiro Bejarano,
professor and director of the Procedural Law Department of the Universidad
Externado, the causes of this problem lie in the modification of the
Constitution to allow the reelection of Álvaro Uribe Vélez. This led the
current government to successfully intervene in the designation and appointment
of the judges of the Superior Council of the Judiciary, particularly those who
are responsible for preparing the shortlists of candidates for the high courts.
The current enthusiasm for the
application of Alternative Disputes Resolution (ADR) methods are due to the
crisis that justice suffers. Thus, faced with a jurisdictional power that is
mostly inaccessible, incapable of providing effective legal protection, costly
to access, and slow and ineffective, individuals are compelled to look outside
the jurisdiction for ways of deciding disputes. According to a 2019 World Bank Doing Business report,
Colombia fell six places compared to the 2018 edition, going from 59th to 65th
place. Among the factors that most affected the nation's performance, legal
insecurity stood out, which scared away not only foreign private investment,
but also citizens from the courts Thus, Colombia is undergoing a major
revolution in the domain of dispute resolution. Civil justice system in most
jurisdictions have been privatized, and Court decisions are disappearing. With
the help of decision-making facilitators, out-of-court settlements have
increased through settlement agreements.
The particularity of
appealing to private agreements goes beyond the distrust in the monopoly of
justice exercised by the State or in the liberal social ideal, but also finds
its virtues in practical consequences: One of them is the decongestion that
would mean for the judicial system the fact of bringing matters processed under
the logic of the bureaucratic public company and all that this implies
(slowness, political use, and resistance to change) to the private sphere where
efficiency and innovation are guiding principles.
If someone asks, "In the field
of civil dispute resolution, what is the most important event in recent
decades?": People can easily respond to its privatization. We have seen that the practice of
replacing the public trial system with ADR is gradually being accepted as the
main way to resolve conflicts between individuals. Although, the practice of
ADR is not limited to one jurisdiction, but is in trend almost everywhere: for
instance, the United States, and most common law countries. These countries are
moving towards a system that uses litigation and judicial systems as the last resort.
According to Salamanca (2004) the
favorable opinion in the doctrine and in some legislators to the use of
alternative methods to the jurisdiction to solve an important range of legal
conflicts, advances mainly -but not only- by three types of arguments, in some
cases concurrently. The first sees in ADR, a clear and possible solution to the
problem of the crisis of Justice; a way to decongest justice. The second sees a
new way of facing and solving the conflicts that arise in society, different
from the traditional jurisdictional recourse. That is to say, the ADR would be the manifestation of a new
justice; a non-contentious but existential Justice. The third argument advances
a new solution to conflicts of legal relevance, according to the type of
property or right in need of protection.
The way law works is based on two
closely related goals, one is a political goal, and the other is a moral order:
to ensure the predictability of the law (political goal), which is understood
as the ability to foresee one’s own legal consequences and act. And as far as
possible to ensure that all people are equal under and before the law (moral
aims) (see Lucy, Abstraction and Equality (n 65) 38). Intuitively, only one
person can know in advance which legal category his behavior belongs to, and
then he can modify his behavior (political goal) accordingly. Only under the
same circumstances, the opinions of others will not be treated differently in
the law, will they consider their treatment to be fair (moral goal).
The law’s abstract judgment has a
fundamental meaning: if there is a dispute, the judge must only consider and
evaluate the facts and circumstances that are clearly considered in the
application of the law when applying the law. However, it is precisely the fact
that the judge is prevented from considering all these circumstances, in other
words, through formal justice, the judgment can be reached.
This view, which represents the
current function of the law, is completely inconsistent with the special and
personalized view of justice that the ADR promises. It is regarded as belonging
to a broader category of cases, but is regarded as a single, unique and non-repeatable
phenomenon. Though in ADR, justice is not a universal concept, but is defined
by those directly involved.
ADR can assist the bench and the bar
to begin digging out from the overwhelming backlog of cases caused by the
pandemic. For the most part, over the past several months, both sides have been
negotiating in good faith despite everyone's uncertainty as to when a case will
be reached for trial. The message of ADR
is: there is no formal justice, only personal justice or temporary
justice. According to this view, it is useless to view the law as a system of
general and abstract rules.
* Researcher
on the Youth Arbitration Network of the Bogotá Chamber of Commerce. Master of
Laws and International Business from the Universidad
Internacional Iberoamericana in Mexico and the Universidad Europea del
Atlántico. Students for Liberty’s inaugural cohort of Fellowship
for Freedom in India. Email: berniermichelle@hotmail.com
References:
Gardner, John. 2014. The Evil of
Privatization. Available on: http://dx.doi.org/10.2139/ssrn.2460655
Giabardo, Carlo. 2020. Private
Justice: The Privatisation of Dispute Resolution and the Crisis of Law.
Wolverhampton Law Journal, Vol. 4.
Higgins, Andrew. 2017. The Costs of
Civil Justice and Who Pays?. Oxford Journal of Legal Studies, Volume 37, Issue
3, p. 687–713.
Sánchez, Nelson. 2013. Judicial Crisis in Colombia. Dejusticia, Available on:
https://www.dejusticia.org/las-crisis-de-la-justicia-en-colombia/
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