From 10 to 13 September, 2018, the MPIL Masterclass was taught by Professor Manuel José Cepeda. Throughout these four days, Professor Cepeda provided a substantive overview of the evolution of the topic of “Transformative Constitutionalism: The Example of Colombia”. The indispensable role of the Constitutional Court as an agent of social change was underscored during all of the sessions.
Professor Cepeda’s historical account began with the violent-ridden context that prevailed in Colombia during the end of the 1980s and beginning of the 1990s. He described the series of cathartic events that led to the emergence of a Constitutional Assembly in 1991, which would in the same year bring the Colombian Constitution into life. Amidst a broader context of systemic social exclusion and violence, unresponsive representative institutions and overwhelming hyper-presidentialism, one of the main goals throughout this constituent process was to devise institutional tools for addressing these phenomena. This was done by identifying some of the core limitations of Colombia’s 1886 Constitution, then in force, for facing modern challenges. Steering away from a prevalent formalistic understanding of constitutional law was a key issue for promoting a turn towards transformative constitutionalism. For this endeavor, judges were singled out as actors with a more central role than before.
Professor Cepeda also related how the public debates within the Constitutional Assembly would eventually tilt in favor of the creation of a Constitutional Court. Both in the protection of fundamental rights and in dealing with the checks-and-balances of the three branches of government, the role of the Constitutional Court of Colombia was designed, from the very beginning, as a catalyst for change. Thus, Professor Cepeda’s presentations addressed the question of how transformative constitutionalism is not only limited to the protection of rights, but also requires having an impact on power structures, especially within the aforementioned context of hyper-presidentialism. At the same time, although the Court has the last say in the interpretation of the Constitution, deference towards other public authorities is also an important factor for the attainment of the goals set therein.
Furthermore, Professor Cepeda tackled the issue of the way in which the Constitutional Court ordered structural remedies for dealing with issues of economic, social and cultural rights. This was the case, firstly, of compelling competent authorities to ensure the minimum subsistence of millions of internally displaced persons due to the internal armed conflict. And, secondly, this also led to the Court’s issuance of orders mandating equitable access to healthcare services for all of the population, not just for those with economic means. Both the benefits of these rulings, as well as some of the ensuing criticisms to what was seen as judicial overreach, came to the fore during discussions led by Professor Cepeda.
As part of the activities of the Masterclass, a public event took place at the Deutsch-Amerikanisches Institut (DAI) of Heidelberg, also within the framework of the Max-Planck-Day. A conversation between Professor Cepeda and Professor Armin von Bogdandy shed further light upon the challenges ahead for the ongoing peace process in Colombia. Being directly involved in negotiations with guerrilla groups, Professor Cepeda shared some of these experiences with an audience comprised of people from various backgrounds. He also took the opportunity to answer questions posed by the public, resulting in insights on the legal status of the agreement after its rejection in a referendum. Ultimately, Professor Cepeda emphasized the fact that peace should have legal weight, especially within the reasoning of courts.
Lastly, Professor Cepeda devoted the final session of the Masterclass to engaging with the participants’ questions and comments related to the pending challenges for the conceptualization of Transformative Constitutionalism. Multiple points of view focused on the extent to which Colombia’s example is more than just the result of national circumstances, were expressed. Even though the role of the Constitutional Court was convincingly portrayed as instrumental in fostering the necessary structural changes, its constant exposure to backlash and to fluctuating political settings should not be overlooked. Ultimately, these questions will prove to be crucial for the purposes of further developing the idea of Transformative Constitutionalism in Latin America.
