7: The Impact of the INT on the Colombian Judicial System
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Introduction
In no other branch of the Colombian political system has the violent impact of the
illegal narcotics trade (INT) been so sorely experienced as the Colombian state's
authoritative arm, the judicial system. Despite efforts by successive administrations of
Colombian government to restructure specific courts to handle drug cases, judges remain
underpaid, overburdened, bribed, and assassinated. According to a report issued by the
United States Government Accounting Office (GAO), an "estimated 350 judicial
personnel have been murdered since 1980, including 50 judges, and a Colombian government
survey shows that 25 percent of the judges reported that they and their families have been
threatened."(1)
In Colombia, the effects of the INT upon its judicial institutions have had a multiplier
effect. Generalized violence by the INT has inspired a declining confidence of the polity
in formal rules which govern and exemplify behavior characteristic of its judicial
institutions. The impunity rate, or rate with which crimes go unreported and/or
convictions are not obtained, has been historically high in Colombia and have attained
even higher rates over the past fifteen years.
If the defining characteristic of a state is its legitimate monopoly on the primary
mechanisms of coercion and affording citizens' security, the Colombian state has
experienced a declining level of autonomy accompanied by both dimensions of
deinstitutionalization. To recap the definitions provided in Chapter One, deinstitutionalizing
refers to institutional norms and the erosion of their capacity to serve the political and
social needs of the polity. The first dimension concerns the strengthening or weakening of
institutions by formal and informal rules or mechanisms. The second dimension of
deinstitutionalization involves the enforcement of formal and informal rules in terms of
transaction and transformation costs. Among the roles required of institutions are solving
problems of human cooperation and reducing uncertainty by providing a stable structure
within which human interaction occurs. Deinstitutionalization is driven by national and
international forces.
The second dimension of deinstitutionalization affecting the Colombian judiciary stems
from the inability of the Colombian state to enforce its contracts. On the one hand,
German Palacio makes a convincing argument that international pressure has resulted in
treaties often unenforceable due to either unconstitutionality or, when enforced,
"contribute(s) to . . . weakness by undermining the credibility of the Colombian
legal system."(2) On the other hand, Palacio and Pahl
agree Colombia is closer to an anarchic state judicially than the liberal democratic state
it has claimed and wishes to be. Palacio's research is important for the way it enables
researchers to more clearly identify and examine the forward and backward linkages of the
INT affecting institutionalization.
The purpose of this chapter is to assess the impact of the INT on Colombia's judicial
institutions. I hypothesize the INT has negatively affected the Colombian judicial system
by eroding the willingness and capacity of the Colombian state to interpret and uphold the
law. As in the previous chapter I treat the INT as a transnational organization with the
organizational structure of a network organization. To test my hypothesis I examine the
following: 1) the growth of paramilitary organizations; 2) circumventive behavior
exemplified by the INT's penetration of the judiciary legal representation; 3) inability
of the Colombian state to enforce its own laws concerning prosecution of drug cases; 4)the
INT's formation of political parties to further its aims; 5) enforceability of
international treaties with specific attention to the extradition treaty between Colombia
and the U.S.. Examining these phenomenon and their relationship to the Colombian state
allow a clearer evaluation of abstractions such as legitimacy and autonomy.
German Palacio suggests, when speaking of paramilitary organizations, privatization of
justice is better understood as one of two judicial mechanisms in Colombia. Both compete
or substitute for/with the official judicial system. He conceptualizes privatization of
justice as para-state justice that he subdivides into para-police (referring to
"private justice" groups acting as anonymous police forces under police
protection )and paramilitary organizations. Para-military justice organizations may
perform similar policing activities but are organized and protected by the army and also
financed by narco-entrepreneurs.(3) Despite the historic
tradition of broker-clientelistic relationships in Colombian history by which citizens
might obtain justice and protection, the polity is less able to rely on such informal
mechanisms. Individual body guards have become better organized, financed, and beholden to
the INT.
Penetration of the judiciary by the INT through either corruption or legal
representation allows some conclusions to be drawn about: 1) channels of interest
articulation through which the state can respond to the polity and 2) the degree to which
corruption of public officials brings some veneer of legitimacy to a person or act.
Klitgaard attempts to rank the effect of corruption upon a state. When corruption exists,
such as police or judicial corruption, it does not reallocate a private good. It produces
a public bad or what Robert Klitgaard considers a negative externality.(4) This can include an increased cost in obeying the law,
alienation, and cynicism among the polity. Michael Pahl reports that approximately 20
percent of all crimes are reported to Colombian authorities. Of these only 4 percent, of
which 2 percent are for crimes of robbery, assault and battery, result in convictions.(5) The authorities' ability to meet the social and political needs
of the polity has so eroded that Colombian society relies more strongly upon informal
rules than the formal rules implemented to strengthen the state. The emphasis of informal
rules over formal rules is the first sign of a deinstitutionalizing erosion of state
autonomy reflecting alienation and cynicism among the polity.
Political parties formed by the INT to further its aims permits evaluation of its
alliances. It also allows us to assess the importance of organizational evolution as a
means to enhance state/INT negotiations. Successfully prosecuting drug cases is a
measurement of the state's bureaucratic capacity as an enduring structure of governance
and rule.
The handling of the aftermath of the attack on the Palace of Justice reveals the
Colombian state's inability to enforce its laws between the state and its citizens on the
one hand and between the state and another government agency, the military, on the other
hand. The continually changing status of an extradition treaty illuminates the multiple
levels of contestation over the organizing principles of a dependent industrializing state
such as Colombia. Additionally, examination of the Extradition treaty enables us to
understand the effects of international pressure of political deinstitutionalization.
An exquisite irony developed in Colombia, however. As the study progresses, we shall
see the Supreme Court of Justice, quite subordinate to the executive branch before the
attack on the Palace of Justice in 1985, become an activist court within a civil law
tradition. Its championing of individual rights, in a way uncharacteristic of a peripheral
industrializing nation, served as a catalyst for the judicial reorganization in 1991.
To examine the impact of the INT on the Colombian judicial system, one must first
understand the structure of the Colombian judiciary. The first section of this chapter
provides a brief literature review of comparative judicial approaches and the second
section highlights the historical development and structure of the Colombian legal system.
The third section examines the relationship between the changing organizational structure
of the INT and its impact on the Colombian judicial system.
Review of the Literature
Legal scholar Robert Cover observes that we inhabit a normative universe in which rule
making occurs both formally and informally.(6) But rule
making and its legal institutions cannot exist apart from the narratives or discourse
within which such occurs. We live in a world where tension between meaning and reality is
everpresent. Legal meaning or jurigenesis occurs through a cultural medium where, for law
to be meaningful it
must...permit those who live together to express themselves with it and with respect to
it. It must both ground predictable behavior and provide meaning for behavior that departs
from the ordinary.(7)
Unification of meaning stands at the center of a pure, paideic normative order
that exists but for a moment. After this moment the social organization of legal precepts
as power and the organization of law as meaning becomes dichotomized. Thus the
"uncontrolled character of meaning exercises a (beginning) destabilizing influence
upon power."(8)
Emile Durkheim conceptualizes law as an external index of the internal attribute of
social solidarity, which does not lend itself to direct observation.(9)
Durkheim hypothesizes that there is a positive relationship between the structure of a
professional group and its professional ethics. Durkheim suggests the greater a group
structure, the larger the numbers of moral rules appropriate to it and the greater
authority such rules shall have over its members. Thus the sustenance of diverse
relationships, on a one
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