Colombians Happy to Tell It to the Judge

Any Colombian with a gripe can take it to the judge.

And not just in small claims court. Colombians who believe their rights have been violated can demand justice from any judge within 10 days--and then take their complaints all the way to the Supreme Court.

Supreme Court justices contend they are flooded with thousands of frivolous claims that delay their decisions on important cases. They are demanding limits on the clause in Colombia’s 1991 Constitution that gives every citizen the right to go to court, without a lawyer, to protect his rights.

But proponents of the tutela--as the claim, similar to a writ, is known--say that, in the five years since the complaints were created, they have finally turned the courts over to the people.

Justices’ demands to modify the tutela have provoked a spirited debate about who owns the courts: lawyers and judges or the citizens of Colombia.

Proponents say the tutela is a means of enforcing the constitution’s bill of rights in a country where the police are so ineffective that 95% of murders go unsolved and where citizens feel that the justice system--from the police to the courts--ignores them.

“The law has ceased to be the monopoly of judges and 75,000 lawyers,” said Gustavo Zafra, dean of the law school at the respected Javierana University here. He drew an analogy to the Roman Catholic Church, in which priests once celebrated Mass in Latin with their backs to the congregation. Later, a Vatican decision turned the priest to face the congregation and ordered him to speak in a language that his listeners understood.

Similarly, the tutela forces the courts to speak the language of citizens. Any citizen may file a tutela by simply stating the facts and why he thinks his rights were violated. He does not even have to know which rights may have been trodden upon. And the judge who receives the complaint must determine whether or not it is valid. All cases are then passed on to a higher court for review.

However, critics claim that, in the case of the tutela, the result is that everyone is talking at once. Since November 1991, 110,000 tutelas have been decided in Colombia.

“This has produced considerable congestion in the courts,” said Jose Roberto Herrera, presiding justice of the Supreme Court. He estimates that between 60% and 80% of the 23 Supreme Court justices’ time is occupied reviewing tutelas. Because of the pressure on judges to decide tutela cases, all other cases become a lower priority.

“If the tutelas we were deciding were truly important, it would be different,” Herrera said. “But most of the cases we are presented are laughable.”

Earlier this year, one Bogota apartment owner filed a tutela on behalf of his dog, which was banned from the apartment building. When the Supreme Court decided that tutelas protect only the rights of human beings, hundreds of pet owners marched on the court in protest.

Other tutelas have been filed by a would-be Birdman of Alcatraz, who was not allowed to feed pigeons where he was imprisoned, and a woman denied entrance to a beauty contest.

“There has been a great abuse,” said Herrera. “About 90% of the cases we see are frivolous.”

But for many Colombians, the tutela has been a matter of life or death. Humberto Caceres, a 42-year-old carpenter, desperately watched his 17-year-old son dying of cancer.

Doctors refused to amputate the youth’s cancerous leg because he and the grandparents who raised him are Jehovah’s Witnesses and, for religious reasons, would not accept a blood transfusion.

Caceres filed a tutela, and the court decided that, in this case, the constitutional right to life took precedence over religious beliefs. His son received his operation and a transfusion.

Although the youth is terminally ill despite the surgery, Caceres said: “I felt better as soon as I learned of the ruling. It is important to leave a footprint where we pass.”

Other tutelas have protected the rights of university researchers, pregnant students, workers with children, and common-law spouses, said Manuel Jose Cepeda, dean of the law school at the University of the Andes here.

By putting the rector of the University of the Andes in jail for failure to obey a tutela ruling in her favor, a graduate student proved that the law can apply to everyone--a novel concept in Colombia--said Cepeda.

In that case, a doctoral student in genetics had taken longer than usual to complete her research because of family obligations and the complexity of the project she had chosen. The university restricted her access to its laboratories.

The student filed a tutela, claiming that her rights had been violated. The judge agreed and ordered the university to let her use the laboratory as all other students do. Rector Arturo Infante refused, citing the traditional Latin American principle of university autonomy from government domination.

The judge ruled that the student’s right as a citizen was more important than the university’s institutional right of autonomy and ordered the rector jailed until the student was given unrestricted access to the lab.

After Infante spent several days in jail, the university and the student reached an agreement that allowed him to be freed.

Another result of the system has been a new word in the Colombian vocabulary: tutelazo, an attack with a tutela.

“The tutela has been like a tank of oxygen for the judicial system,” said Zafra.

Still, even the most ardent proponents of the tutela recognize that the complaints are overworking the Supreme Court. However, they believe that the problem can be solved short of a constitutional amendment curbing the right of tutela.

First, said Cepeda, fewer tutelas would be filed if the courts would act more quickly on other kinds of suits. Many Colombian lawyers intentionally delay suits that they expect to lose, clogging the courts until the opposing side files a tutela in desperation.

Zafra suggests that the Supreme Court simply follow the example of the Constitutional Court--which rules only on constitutional issues--by hearing only selected tutela cases, rather than every case sent from lower courts. Then, in most cases, the lower court decision would simply stand.

Judges have announced that they will begin to impose stiff fines on Colombians who file frivolous tutelas, a move that is expected to discourage many questionable claims.

In addition, predicted Constitutional Court Chief Magistrate Carlos Gaviria, with time, fewer tutelas will be filed because Colombians will begin to realize that there are penalties for violating the rights of their fellow citizens.

For example, he said, pension funds that once delayed their first payments until four years after participants retired are making payments in a timely fashion, because so many tutelas have been filed against them.

And that, after all, is the purpose of the tutela, said Gaviria: “We want to make sure that people’s fundamental rights do not just stay on paper.”