judicial activism and forced displacement: lessons from the colombian paradox

June 26th, 2014

Cesar Rodríguez-Garavito and Diana Rodríguez-Franco

Forced displacement affects millions of people in the world and entails a violation of basic human rights. In many countries, given the lack of institutional capacity, the main way of addressing this issue is through international human rights law and humanitarian law institutions. But forced displacement does not only occur in places where the state has nearly collapsed. It also takes place in national contexts where the state does have the institutional capacity and favorable legal frameworks to protect human rights, allowing these goverments to address displacement with more tools that just international and humanitarian law. This occurs, for example, in Kenya, India, and South Africa, countries that face huge displacement problems due to violence, large-scale economic projects, and the eviction of shanty town residents, respectively, but that also have infrastructure and innovative courts protecting social rights.

Colombia is a paradigmatic example of this paradox. While it has the second largest displaced population in the world due to violence, it is known for its constitutional and judicial protection of human rights, including the rights of internally displaced persons. Not long ago, Colombia marked the tenth anniversary of the Constitutional Court’s decision regarding displaced populations (decision T-025 of 2004), known for being one of the most innovative and active in the judicial protection of constitutional rights. A decade after this decision was issued, what lessons can we extract from the Colombian case for other similar contexts in the world?

As we have documented in a book that evaluates the first five years of the implementation process of this decision (the updated version will be published in English by Cambridge University Press in 2015), the Colombian case offers many lessons about the role the courts can play in these contexts, the necessary procedures for these types of interventions, and the effects it can generate.

What the Colombian court has achieved in the last decade is noteworthy. It did not limit itself to declaring a violation of the rights of the displaced, but has also ordered the government to adopt short and long-term policies to address the structural causes of the problem. In addition, it put in place a participatory monitoring system to guarantee the implementation of the decision. Through more than 280 judicial orders, about 15 public hearings, a dozen technical sessions, and the creation of a chamber dedicated to monitoring the process, the Court has followed up on the government’s progress and failures on a variety of topics, including problems with registering the displaced population, coordination problems between the different service agencies, sexual violence against displaced women, as well as the precarious situation of displaced people with disabilities and displaced indigenous and afro-Colombian populations. As a result of this monitoring process, this court decision has a broad range of effects, from direct material ones, to indirect and symbolic ones, that can all be equally as important to the protection of social rights as the effects that come directly from the court orders.

Let’s look at four examples:

With the ruling of 2004 and the monitoring process that followed, the Court shook up a governmental bureaucracy whose inaction and lack of internal coordination contributed to the massive violations of the rights of the displaced. In this sense, the Court’s intervention illustrates the application of “destabilizing rights” defended by judicial activism theorists. As a result, the budget for programs for the displaced has multiplied tenfold, laws have been issued to improve emergency assistance, and coordination mechanisms between government agencies were reactivated. The Court’s decisions set off immediate reactions in state agencies, something we have called an “unblocking effect.” These are precisely the types of structural blockage or stagnation that result from a lack of capacity, will, or budget, and frustrate the realization of constitutional rights, justifying court intervention to reactivate the government’s operation.

The case has also produced what we call a “framing effect,” through which judges redefine social problems in terms of human rights. The Court has unquestionably contributed to the increase in the visibility of this topic in public debates, in the media, and in the government’s agenda. One example of the change in how the problem is conceived was the adoption in 2011 by Congress of the armed conflict “Victims Law” that covers all displaced persons.

Similarly, the Court has produced what we call a “participatory effect.” It has encouraged a monitoring process with deliberation spaces that include victims’ organizations, while at the same time fomenting participation and a dialogue with other sectors of civil society. Civil society, in turn, has contributed with verification surveys and proposals, such as the ones published by the Monitoring Commission of the decision, led by the NGO Codhes and made up of organizations like Dejusticia. Furthermore, the displaced population has been invited to participate in the Court’s public hearings along with public officials in charge of developing the policies. Together with civil society organizations and government institutions, the Court has created a list of indicators that has allowed it to evaluate the evolution of the actual enjoyment of rights.

In the end, what effect has this 10 year judicial process had on the displaced population? Since there is no base line from which to begin measuring the effects of the decision, and there are multiple causes that contribute to the evolution of forced displacement, starting from the continued armed conflict in Colombia to the variation in public policies, the answer to this question is difficult and uncertain. On the one hand, there has been considerable improvement in education and health coverage for the displaced and a decrease in the annual displacement rates. While in 2002, close to half a million people were displaced, in 2013 the number dropped to a hundred thousand. On the other hand, critical deficiencies persist in housing and income generation for the displaced population.

Beyond the Colombian particularities and the specifics of the topic of forced displacement, this case illustrates the utility of what we have termed “judicial dialogic activism” to protect human rights generally, and social rights in particular, in paradoxical contexts that combine institutional capacity with massive social rights violations. In fact, Colombia’s Court is not the only one to have adopted this type of progressive activism. Its decision addressing the problem of forced displaced is part of an international trend of having constitutional court judges be protagonists in the realization of these rights in these types of contexts. Among the best known is the jurisprudence of India’s Supreme Court, which has grappled with structural social issues like hunger and illiteracy, and the South African Constitutional Court, which has protected rights like housing and health. As we have explained elsewhere, this type of activism combines a generous reading of the content of rights with injunctions that leave public policy decisions in hands of the government, while at the same time establishing deadlines and guidelines to implement them, and a monitoring process to verify their fulfillment. In this way, it tries to close the constitutional circle: effectively protecting social rights, promoting deliberative democracy and respecting the division of powers.

Cesar Rodríguez-Garavito is an Associate Professor of Law at the University of los Andes, the International Director of Dejusticia, a human rights research and advocacy organization based in Bogota, Colombia, and Affiliated Faculty of the Displacement Research and Action Network at MIT.

Diana Rodríguez-Franco is an Affiliated Researcher at Dejusticia and Ph.D. Candidate at the Department of Sociology at Northwestern University.