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7: The Impact of the INT on the Colombian Judicial System

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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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