Academic journal article Law & Society Review

Ambivalent Legal Mobilization: Perceptions of Justice and the Use of the Tutela in Colombia

Academic journal article Law & Society Review

Ambivalent Legal Mobilization: Perceptions of Justice and the Use of the Tutela in Colombia

Article excerpt

We have rule of law, but I say anything can be said on paper, because [the law as it is written] is wonderful, but we have a very, very deep problem in terms of the application of justice, because we have a lot of corruption... Justice is crap, of course.1,2

So responded an upper-class resident of Bogotá, Colombia, when asked to evaluate the country's legal system. National surveys indicate that the negative view expressed above is far from unique.3 These perceptions give reason for alarm, according to long-standing theories about the judicial role in democratic states. Specifically, the triadic logic of conflict resolution sets out that the impartiality of courts directly feeds into their legitimacy, giving reason for both parties to the dispute to consent to the court's involvement and, in particular, for the loser to accept the judgment (Shapiro 1981). This legitimacy then reinforces judicial independence, as the executive and legislature are both less able and less willing to place undue pressure on the courts, allowing the courts to continue to decide cases impartially, which results in a virtuous circle.4 In the Colombian case, Landau (2010a: 153, 2010b) demonstrates how the emergence of the Constitutional Court as a "workhorse for middle-class claims" and its ensuing popularity bolstered its power and its ability to sidestep political influence. Here, we might expect this reported lack of confidence in the judiciary, which is by no means limited to Colombia, to translate into limited use of the courts.5 Yet, this is not so.

Each year, the number of citizens filing legal claims grows, even after accounting for population growth. The most common legal mechanism used is the acción de tutela, which was created with the 1991 Constitution, alongside various other institutional reforms meant to address what has been called a "crisis of representation" (Mainwaring 2006) and to bolster an ailing, inefficient, and untrusted legal system. The acción de tutela is an innovative legal development related to the amparo and recurso de protección created elsewhere in Latin America.6 The tutela, which is an appeal for immediate relief, allows citizens to make claims to their constitutionally protected fundamental rights without need for a lawyer. In theory, an individual-verbally or in writing-can simply detail a problem in his or her life to a judge, whose job it is to assess whether or not a rights violation may have occurred, regardless of whether or not the individual characterized the problem as one related constitutional rights. All judges in the country must hear tutela claims and must respond to each claim within 10 days in the first instance, making the tutela a relatively cheap, easy, and quick legal mechanism. Still, filing a tutela claim is not costless, as individuals must travel to the courthouse during business hours and often wait in long lines to submit their paperwork. These time and resource costs pale in comparison to the costs of filing other kinds of legal claims, but they are not negligible for those of relatively little means. The Constitutional Court has the power to review every tutela decision, though given the sheer quantity of tutela claims, the Court only formally reviews a small fraction of cases.7

In the early 1990s, the Colombian government engaged in a multipronged educational campaign, featuring a television program, smaller advertising spots, board games, and comic books- in addition to mandatory teaching in schools-to spread information about the new constitution and the tutela. Regional-level bodies in some, but not all, departments have also held outreach programs, from the early 1990s to the present day. Even so, it is not immediately clear why citizens who express a near total lack of confidence in the judiciary would seize upon this tool to air their grievances. In this context, the volume of constitutional claims advanced by Colombian citizens is shocking. Thousands upon thousands of Colombians turn to the judiciary every year to demand the protection of their rights through the use of the tutela procedure-from claiming the right to receive a response to a petition request to the right to a minimum standard of living. …

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