When Accountability Meets Judicial Independence: A Case Study of the Colombian Constitutional Court's Nominations

Abstract

In 1991, Colombia established a Constitutional Court with expansive powers to protect rights. The power to nominate members of the Court was placed in the hands of the President along with the Supreme Court and Administrative Court. In 2008, fourteen Colombian NGOs formed the Elección Visible, a coalition designed to ensure greater accountability in Constitutional Court nominations by the two higher courts and by the President. In this study I explore the roots of the resulting clash between the Elección Visible and the nominating courts. In my study I concentrated on the nomination process that took place at the Supreme and Administrative Courts, since President Uribe flatly ignored the NGOs demands for more accountability in the nomination process and kept his nomination picks concealed until the very last minute. I show that the conflict between nominating Courts and the NGOs arose when NGO demands for accountability through a more transparent nomination process were resisted by the nominating courts in the name of judicial independence. Moreover, I show that Administrative and Supreme Court's Justices decide whom to nominate according to subjective, political, ideological and personal criteria. In particular, I argue that the Administrative Court relies on a traditional liberal/conservative dichotomy in making its Constitutional Courts nominations, while the judgments of the Supreme Court rely heavily on assessments of loyalty towards the Supreme Court once the candidate is appointed to the Constitutional Court. The cost of admitting these hidden" nomination criteria publicly in a legal system such as the Colombian still highly formalistic and based on a model of Judge who adjudicates based only on the law" is far too high. Therefore, Justices had strong incentives to conceal the real" nomination criteria from the efforts by Elección Visible to ensure greater transparency.