To defer justice is to deny democracy

This phrase, pronounced by Robert F. Kennedy in his book In Pursuit of Justice, holds an absolute truth; without justice there is no democracy. And this is explained with great clarity by Dr. Luis Fernando Álvarez, dean of the U.P.B. and former president of the Council of State, in his recent column entitled Justice and Democracy when he states that "when the judicial apparatus ceases to be independent and autonomous, democracy runs the risk of weakening or collapsing, and the people are condemned to suffer the infamy of tyrannies".

The relationship between justice and democracy is crystallized in public actions (tutela actions, popular actions, unconstitutionality actions, nullity actions for unconstitutionality, compliance actions, Habeas Corpus actions, Habeas Data actions) because through these actions citizens can seek judicial protection of their fundamental and collective rights or request the exclusion, in the legal system, of norms contrary to the Constitution.

The existence of these mechanisms of judicial activism is connatural to the existence of the State. So much so that Articles 1 and 2 of our Constitution establish that "Colombia is a Social State of Law organized in a (...) democratic, participatory and pluralistic manner, founded on (...) the prevalence of the general interest" and that the essential purposes of the State are "to guarantee the effectiveness of the principles, rights and duties enshrined in the Constitution; to facilitate the participation of all in the decisions that affect them, (...) and to maintain the validity of the just order".

In development of the above principles, our Constitution, in its article 228 establishes that the administration of justice is a public function, whose actions will be permanent and in them the substantial law will prevail over the formal. Likewise, Articles 229 and 230 state that the Constitution itself guarantees the citizen's access to the administration of justice and that judges, in their rulings, will only be subject to the rule of law. In relation to the Constitutional Court, the closing body for the great majority of public actions and high impact public actions, the Constitution indicates in its article 240 numeral 4 that one of its purposes is to "decide on the unconstitutionality claims filed by citizens against laws" and must do so within a term of sixty (60) days (article 242 numeral 4 of the Constitution).

In order to facilitate access to justice, the Constitutional Court, for many years has developed, through a line of jurisprudence, the concept of the "pro actione principle". According to this principle, and in view of the fact that what is sought is the protection of the legal system and not of a particular right, any procedural or argumentative deficiency that exists in a claim of unconstitutionality must be assessed with a criterion that tends to give prevalence to the substantive law over the formal and that the Court may interpret such request in order to produce a meritorious ruling. This principle also indicates that when there is a doubt as to the fulfillment of any formal requirement of the claim, the Court must interpret and accommodate it so that such doubt may be resolved in favor of the plaintiff.

In theory, everything is fine; everything is perfect. In practice, not much of this works or is applied. The lawsuits filed before the Constitutional Court, although in theory they do not need to be presented by a lawyer, begin with the via crucis of inadmissibility. At this stage, the Constitutional Court requires the plaintiff to comply with the requirements of certainty, clarity, specificity, pertinence and sufficiency of the constitutional reproaches alleged, thus transferring to the ordinary citizen (who supposedly did not need a lawyer) a titanic argumentative burden that must be overcome in the peremptory term of 5 days, under penalty of rejection.

Many public actions reach this point, because the filter applied - although it is contrary to all the principles of access to justice and the prevalence of substantive law over formal law - is efficient, since it discourages the plaintiff. If the plaintiff, at this stage, does not meet the threshold of legal argumentation sufficient to convince the Court, the popularly called "cajonazo" is applied, which is the rejection in limine of the claim. If by any chance the plaintiff is a constitutional lawyer (and practically a constitutional lawyer) and manages to overcome this obstacle, his process will most likely be suspended while the Constitutional Court defines its agenda and priorities, and receives the opinions and concepts of the Attorney General, the Universities and other think tanks in the country on the specific case. These suspensions may cause a constitutionality process to last up to a year and a month, when the Constitution itself indicates that it may not last more than sixty days.

Since there is no deadline that is not met, when the day comes to finally receive the judgment of the Court on the merits of the specific case, it is possible to find the unpleasant surprise that the Court declines to rule because it considers that the plaintiff did not comply with the sufficient level of argumentation that could give certainty, clarity, specificity, relevance, and sufficiency of the constitutional reproaches. And this, despite the fact that the plaintiff had already corrected the claim and the Court had admitted such correction.

This type of action not only makes formal law prevail over substantive law (in a matter where there can be no formalities, since citizens can initiate public constitutional actions without the need of a lawyer) but also violates the principle of legitimate trust (since the citizen trusted that the Court, once it had accepted the correction of the claim, would rule on the merits of his case) and the right of access to justice, since by refraining the Court from deciding on the merits, it violates the same mandate contained in Article 240, paragraph 4 of the Constitution. Inhibition to rule on the merits of a lawsuit is nothing more than deferring justice, and deferring justice, as Kennedy said, is nothing more than denying democracy.