The Colombian Constitutional Court versus the International Monetary Fund: Economic Reforms, Social Rights and Sovereignty

Article excerpt

I. INTRODUCTION

One of the implications of the process of globalization concerns the diffusion of regulatory competences across governance levels and across state borders. New regulating actors have appeared on the scene, both externally (e.g. IMF, WTO) and internally (e.g. constitutional courts, mixed private-public entities). Especially in developing countries, the regulatory autonomy of the traditional actors (governments and parliaments) has further weakened and reaches sometimes worrying low levels.

This paper presents a case study of Colombia and builds further on an ongoing debate on the compatibility between the Intel-nationalization of the economy and macro-economic stability, on the one hand, and the recognition of the economic and social rights as fundamental rights, on the other, and on the implications of the growing complexity of the economic reality for constitutional case law with economic effects (Clavijo, 2001, 2004; Kugler and Rosenthal, 2005; Kalmanovitz, 2001, 2002; Uprimny, 2000, 2001, 2002; Alesina, 2002). This controversy is a local reflection of a debate that is also going on at the global level between, for example, the IMF that is regulating the global economy and the United Nations who are defending the right to development (cf. also Burgos, 2000; De Feyter, 2002).1

Defenders of the Constitutional Court (CC) in Colombia sustain that sentences should not take into account economic consequences; otherwise, it would become a politicized body (Uprimny, 2000a). Economists, however, consider that adjudications should be efficient and reflect the opinion of the majority (Kalmanovitz, 2001, 2002; Clavijo, 2001; Palacios, 2001:10-11; Kugler and Rosenthal, 2005). Moreover, the CC was accused of contributing to a sub-optimal allocation of scarce resources, solving problems for minorities but endangering rights and welfare of the citizens in general, and obstructing social policies of the State (Kalmanovitz, 2001:153-156; Palacios, 2001:10-11 ).

In Colombia, in the present situation, the CC is playing an active role in the process of economic regulation through the sentences of constitutional control (judicial review) which have erga omnes effects2, but also through the action of protection of fundamental rights (A.P.F.R.) (Acción de Tutela).3 It has also issued sentences which do not only establish the (un)constitutionality of a law but which give compulsory orientations to the legislator to produce norms to regulate certain sectors (in particular, financial and labor market regulations). In other cases, the CC explicitly stated that it will not necessarily follow the regulations in force (cf. health system) and decided to apply directly the constitutional principles even if these decisions have a negative impact from a macroeconomic point of view (Uprimny, 2000).

Simultaneously, the influence of the multilateral banks on the formulation of economic policies increased with the necessity to have access to external public credit and with the problems related to the generalized financial crises. As a consequence, the Colombian economic authorities signed three structural adjustment agreements with the IMF: an Extended Fund Facility (EFF) (1999-2002), a Stand-By Agreement (20022004) and a second Stand-By Agreement (2005-2006)4. All of them imposed institutional reforms to obtain macroeconomic stability. Some of these reforms were presented and, in some cases, approved by the Congress before the presentation of the IMF program. Other regulations were in accordance with the action plans of each economic sector that was targeted, although they were not part of the list of structural commitments in the agreements.

The interaction (and tensions) between these new "regulators" started when the CC modified or reversed some of the reforms enacted to comply with the IMF agreements. Although the CC declared the constitutionality of the articles of the IMF agreements and their amendments as valid and applicable international treaties, it did not attribute any normative value to the more specific structural adjustment agreements. …