Judicial independence is a fundamental part of any democracy: It is a precondition for the separation of powers, a fundamental guarantee to impede the consolidation of absolute power, which endangers the rule of law. It is also essential for the judicial branch to be able to administer justice without any interference. It guarantees that no one is above the law – independent of how powerful they may be – while protecting fundamental rights and giving assurance to citizens that if they turn to the judicial system they will be able to have a fair trial in keeping with the rules and procedures established in a legal framework suitable for government under the rule of law, respectful of the fundamental rights of all persons.
The principle of judicial independence has been extensively developed in Colombian constitutional law, from the text of the Constitution and the case law to the international instruments that are part of what in Colombia is known as the bloque de constitucionalidad (the sphere of core constitutional principles), such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the American Convention on Human Rights, the International Convention for the Protection of All Persons from Enforced Disappearance (Article 11(3)), and Additional Protocol II to the Geneva Conventions on the protection of victims of non-international armed confl icts (Article 6(2)), which establish that every person shall have the right to an eff ective remedy before competent domestic courts that aff ord protection from any act in violation of fundamental rights, in addition to the right to be heard by an independent and impartial court in conditions of equality, and open to the public.
Based on the evidence and analysis set forth in this report on the four most important problems facing judicial independence in Colombia at this time – (1) underfunding plus initiatives to limit judicial autonomy, (2) harassment and persecution of judicial offi cers, (3) failure to comply with judicial decisions that place checks on the presidential power, and (4) politicization of appointments and elections of judicial offi cers, favoring clientelism over meritocracy – it is worrisome how in Colombia, beyond the institutional defi cits that have accumulated historically, the authoritarian political project being pushed by President Iván Duque has picked up steam. This project and this president are contemptuous of judicial independence; seek the political cooptation of judicial bodies – and the oversight agencies – at their highest levels; and act in contempt of, are disrespectful of, and seek to eliminate judicial bodies that regulate his power or may stand in the way of his political ambitions.Executive Summary