Justice Fair Play Initiative: The key to improving justice delivery in Colombia
Access to justice is a crucial component of the rule of law and the defense of democracy. A robust judicial system ensures that laws are applied fairly and equitably, strengthens confidence in institutions, protects rights, and promotes transparency and accountability, which are essential for democratic stability and economic development.1Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge, UK: Cambridge University Press, 2004), https://books.google.com/books?hl=en&lr=&id=p4CReF67hzQC&oi=fnd&pg=PA1&dq=On+the+Rule+of+Law:+History,+Politics,+Theory&ots. In a global context where threats to democracy are increasing, strengthening access to justice and the rule of law becomes even more critical. An accessible judicial system acts as a safeguard against those threats.2“2020 Corruption Perceptions Index—Explore the Results,” Transparency.org, 2020, https://www.transparency.org/en/cpi/2020. Access to justice for businesses and the general Colombian population is vital to ensure both fairness and economic efficiency. When businesses can resolve disputes quickly and fairly, uncertainty is reduced, fostering a favorable investment climate and sustainable economic development.
This research, based on a holistic and integrated approach, involves two key elements: a thorough understanding of access to justice and a comprehensive view of the justice system. The first element implies that effective access to justice extends beyond the initial approach to legal systems; it encompasses both the entry point and the ongoing journey within the system. The right to access justice is fully realized when it results in a prompt, comprehensive, and enforceable solution. This understanding of access to justice is essential for addressing the multifaceted challenges faced by individuals and corporations in Colombia.
Building on this thorough understanding of access to justice, this research sheds light on the problems faced by actors within the system, which affect companies of all sizes and citizens alike, regardless of their socioeconomic status. It explores the procedural journey, revealing systemic issues and managerial barriers embedded in the justice system. Forty-four percent of respondents expressed medium to high concerns about judicial corruption and threats to judicial independence and impartiality.
The second element is the comprehensive view of the Colombian justice system. Such a view requires data collection regarding the three routes of access to justice in Colombia, all different in nature: the judicial branch; administrative officials with jurisdictional functions; and individual entities that have the right to administer justice, such as conciliators and arbitrators.
The Colombian constitutional system allows the congress to delegate certain judicial powers to specific administrative authorities including superintendencies (regulatory agencies) of industry and commerce, finance, corporations, and health; police inspectors; and family commissariats, among others. However, it is worth noting that administrative authorities’ judicial power excludes criminal prosecutions and proceedings.3Pursuant to Article 116 of the Colombian Constitution and Article 24 of the General Code of Procedure, some administrative authorities exercise jurisdictional functions, which are exceptional, must deal with precise matters, and must be duly attributed to them by law. When administrative authorities exercise jurisdictional functions through resolutions, they act as judges rather than as administrative entities. Individuals can choose, preventively, whether to approach judicial-branch judges or superintendencies judges with jurisdictional functions to resolve their disputes.
This report seeks to identify public policy recommendations that can enhance the efficiency and equity of the justice system through a holistic and integrated approach. Tackling access to justice during the process is crucial not only for the private sector, which relies on the justice system to protect its interests, but also for the broader Colombian society. This will ensure that justice is accessible and equitable for all.
By the numbers
Expert Insights
“This timely and deeply researched report exposes another one of Colombia’s many paradoxes: although it has perhaps the most legalistic society in the hemisphere, the justice system is widely seen as incapable of delivering consistent and reliable results. The report’s authors suggest specific, concrete, and practical policy recommendations to improve justice delivery. As the report notes, a credible and efficient justice system is key to a thriving democracy, and this report will be a key resource for those committed to justice reform.”
Kevin Whitaker, Nonresident Senior Fellow, Adrienne Arsht Latin America Center, Atlantic Council; Former US Ambassador to Colombia, US Department of State
Key data
For all jurisdictions and types of disputes included in this study (both judicial and administrative proceedings), fewer than half of the companies surveyed fully or partially agreed that the duration of proceedings is reasonable. This finding is consistent with the study’s qualitative research component and existing cross-country data on unreasonable civil-justice delays from the World Justice Project (WJP). Colombian scores on timeliness of civil-justice delivery in the WJP Rule of Law Index are lower than those of both best-in-class nations (e.g., Germany or the Netherlands) and regional and income peers in Latin America (See Graph 1).
Delays permeate the system, affecting small, medium, and large companies. When companies were asked about the obstacles limiting effective access to justice when dealing with judicial authorities, the number of legal processes that never concluded scored as the highest obstacle, with 51 percent of companies ranking it as their top obstacle and 15 percent ranking it as a medium level obstacle (See Figure 1).
Similarly, when asked about the obstacles limiting effective access to justice when resorting to administrative authorities, interviewees ranked unjustified delays as the biggest obstacle. Forty-one percent of companies ranked it as the top obstacle and 20 percent ranked it as a medium-level obstacle (See Figure 2).
In terms of judicial independence from hierarchical superiors and other sources, superintendencies perform worse than all other paths to justice, and considerably below all judges (44 percent of companies either totally or mostly disagree that this path is free from this pressure). Critically, in terms of access to justice, it is the second-worst mechanism (34 percent of companies find it difficult to access this mechanism), (See Figure 4).
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Image: Facade of the Palace of Justice in the main square of Bogota, Colombia with the caption “Colombians, weapons gave you independence, laws will give you freedom.” Shutterstock/Simon Maye.