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Between democratic security and democratic legality : discursive institutionalism and Colombia’s Constitutional… Boesten, Jan 2016

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Between Democratic Security and Democratic Legality: Discursive Institutionalism and Colombia’s Constitutional Court     by       JAN BOESTEN B.A. (Hons), University of Calgary, 2007 M.A., The University of British Columbia, 2009     A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF  Doctor of Philosophy  in  THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES  (Political Science)      THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver)  February 2016     © Jan Boesten, 2016    ii Abstract  This dissertation seeks to explain why the Colombian Constitutional Court disallowed a referendum to extend presidential terms in 2010, when it allowed a similar reform in 2005. There are three elements to this decision that make it remarkable for institutional theory and comparative politics: 1) The sitting president, Álvaro Uribe, was an extremely popular and powerful president, who used his transformative capacities to initiate a far-reaching reform agenda; 2) the Court’s authority appreciably increased between 2005 and 2010; 3) the jurisprudence of the Court involved a doctrine that is not explicitly mentioned in the Constitution, but a re-interpretation of the norms outlining judicial review of constitutional reforms. This dissertation inserts the 2010 decision in the historical and political context and asks three questions that guide each chapter: 1) Does the 1991 Constitution amount to a critical juncture in Colombia’s political history? 2) Does the post-genesis evolution of Colombia’s constitutional jurisprudence follow a path-dependent logic? 3) Did judges follow strategic incentives when they developed and applied the substitution doctrine, which struck down Uribe’s reform to extent the number of terms in the presidential office? Building on the Colliers’ critical juncture framework, I show that the 1991 constituent process was a contingent event marked by genuine communicative action that incorporated sections from society previously marginalized, negotiated with important public input, and entirely restructured the meaning of the organizational imperatives of the polity. Contrary to expectations from the discontinuous change model, post-genesis development cannot be fully captured by path dependence, but involves incremental changes of institutional learning inside the judiciary. The investigation into the re-election decisions will show that institutional learning depends on carefully administered spaces of deliberation inside the Court that buttress the cohesion of legal reasoning. Altogether, this leads me to view institutions not as structured expectations in a game between rational actors or regularized patterns of conducts, but discursive structures, in which actors negotiate the meaning and significance of norms with reference to a constitutional text and the intention of the constituents that drafted the charter in the first place. The constitutional judge is a deliberative judge.  iii Preface  This dissertation is original, unpublished, individual work by Jan Boesten. UBC Ethics Certificate number H12-00631 covered the fieldwork and conduction of elite interviews in the course of the research.  iv Table of Contents  ABSTRACT ....................................................................................................................................................ii PREFACE ......................................................................................................................................................iii TABLE OF CONTENTS..............................................................................................................................iv LIST OF TABLES .......................................................................................................................................vii LIST OF FIGURES ....................................................................................................................................viii LIST OF GRAPHS .......................................................................................................................................ix ACKNOWLEDGEMENTS...........................................................................................................................x DEDICATION..............................................................................................................................................xii 1. INTRODUCTION: ETHICAL DISCOURSE IN DELEGATIVE DEMOCRACIES ....................1 1.1. DEMOCRATIC LEGALITY TRIUMPHS OVER DEMOCRATIC SECURITY.................................................1 1.1.1. Legislative Act 02 of 2004 “by which some articles of the Constitution are reformed and other dispositions are introduced” (C-1040/05) ....................................................................................3 1.1.2. Review of constitutionality of law “by which to convey a referendum and submit a constitutional reform to the people” (C-141/10)....................................................................................6 1.1.3. The question of judicial power in Colombia..........................................................................10 1.2. THE PECULIAR CASE OF ÁLVARO URIBE.........................................................................................12 1.3. THE PRIMACY OF DEMOCRATIC LEGALITY OVER DEMOCRATIC SECURITY AND ITS SIGNIFICANCE FOR DISCURSIVE INSTITUTIONALISM ..........................................................................................................23 1.4. CASE SELECTION AND DATA COLLECTION ......................................................................................29 1.5. STRUCTURE OF THE ANALYSIS ........................................................................................................36 2. THE NOVELTY OF THE 1991 CONSTITUTION: A CRITICAL JUNCTURE IN COLOMBIA’S HISTORY. .........................................................................................................................38 2.1. INTRODUCTION ...............................................................................................................................38 2.2. CRITICAL JUNCTURES AND THE STUDY OF COLOMBIA’S HISTORY ..................................................41 2.3. IDENTIFYING A BASE LINE: VIOLENCE, PARTIES, AND THE STRUCTURATION OF A FRAGILE STATE..45 2.4. THE INTERREGNA OF GEN. RAFAEL REYES AND GEN. GUSTAVO ROJAS PINILLA: CONSOCIATIONALISM AND INSTITUTION BUILDING UNDER MILITARY TUTELAGE ......................................58 2.4.1. Cleavages and crisis: the political origin of the Thousand-Day-War and La Violencia ......60 2.4.2. Political junctures: institutional engineering under and after General Rafael Reyes and the National Front pact ..............................................................................................................................65 2.4.3. Consociationalism and its discontent: political stability at the cost of democratic quality ..69 2.4.4. Pacted democracy in Colombia: building institutions shielded from public pressure ..........75 2.5. THE 1991 CONSTITUENT ASSEMBLY: STUDENTS MOVEMENTS AND THE IMPLEMENTATION OF PUBLIC REASON. .........................................................................................................................................76 2.5.1. The aftermath of National Front: hyper-fragmentation of a regime in crisis .......................78 2.5.2. The extra-institutional path: the communicative action in the student movement ................82 2.5.3. The institutional path: breaking the Conservative-Liberal hegemony ..................................86 2.5.4. Institutional novelties of the 1991 Constitution .....................................................................90 2.5.5. Normative changes: interpreting rights.................................................................................94 2.5.6. The 1991 political juncture: the atomization of the nation ...................................................98 2.6. CONCLUSION: THE 1991 CONSTITUTION AS A CRITICAL JUNCTURE IN COLOMBIA’S HISTORY......107 3. THE CHOQUE DE TRENES BETWEEN COLOMBIA’S HIGH COURTS: PATH DEPENDENCE AND LEGAL ARGUMENTATION............................................................................111 3.1. INTRODUCTION .............................................................................................................................111  v 3.2. PART I: PATH DEPENDENCE AND COLOMBIA’S NEW INSTITUTIONS. .............................................116 3.2.1. Courts and the new constitutional regime: selection, jurisdiction, and interdependence of branches of government .....................................................................................................................122 3.2.2. The choque de trenes and Nuevo Derecho ..........................................................................128 3.2.3. “Via de Hecho“: legal vs. constitutional certainty .............................................................132 3.3. PART II: SETTING AN IRREVERSIBLE PRECEDENT? THE PROCESO 8000 AND THE INVIOLABILITY OF THE VOTE IN CONGRESS. ..........................................................................................................................137 3.3.1. Surviving without governing – Samper’s strategy and the increasing atomization of the party system ........................................................................................................................................139 3.3.2. The normative issues – illicit enrichment and the inviolability of parliamentary votes......146 3.4. PART III: PARAPOLÍTICA, THE CRISIS OF REPRESENTATION, AND THE STRUGGLE WITH THE COURTS: HOLDING CONGRESS ACCOUNTABLE AND RESTRAINING EXECUTIVE POWER ...........................................157 3.4.1. The political evolution of parapolítica ................................................................................159 3.4.1.1. Uribe I – The unfolding of Democratic Security ...........................................................160 3.4.1.2. Uribe II – Courts in the defense of Democratic Legality...............................................167 3.4.2. Parapolítica and the courts: the Uribe years and the tutela contra sentencias ..................182 3.4.2.1. Uribe I – Confronting the Constitutional Court’s prerogatives .....................................183 3.4.2.2. Uribe II – facing a united judicial front of solidarity .....................................................185 3.5. PART IV: THE QUESTION OF PATH DEPENDENCE AND THE PRODUCTION OF LEGAL FACTS: PROCESO 8000 AND PARAPOLÍTICA IN COMPARISON.................................................................................................193 4. DISCURSIVE INSTITUTIONALISM: THE DELIBERATIVE JUDGE, THE INSTITUTIONALIZATION OF DELIBERATION, AND NORM CREATION IN A DELIBERATIVE CONTEXT ..................................................................................................................204 4.1. INTRODUCTION .............................................................................................................................204 4.2. RATIONAL CHOICE INSTITUTIONALISM AND JUDICIAL BEHAVIOR .................................................206 4.3. THE MAJORITARIAN-CONSTITUTIONALIST DIVIDE AND ABILITY TO REFORM THE CONSTITUTION 211 4.3.1. Uribe and the delegative turn in Colombian politics ..........................................................213 4.3.2. The fragmentation and co-optation of Congress .................................................................218 4.3.3. The Making of the Substitution Doctrine – neo-constitutionalism and the implementation of ethical reasoning inside the Constitutional Court..............................................................................224 4.4. LA LEY CUENTA – LAW MATTERS: REASON AND PROCEDURE INSIDE THE COURT...........................241 4.4.1. Models of the reasoning judge – between the constitutional and democratic imperative...243 4.4.2. The institutionalization of deliberation in Colombia’s Constitutional Court......................246 4.4.3. Ethical legal reasoning in the Constitutional Court............................................................252 4.5. CONCLUSION ................................................................................................................................255 5. CONCLUSION: BETWEEN DEMOCRATIC SECURITY AND DEMOCRATIC LEGALITY. IMPLEMENTING ETHICAL REASONING IN COLOMBIA’S CONSTITUTIONAL COURT...263 5.1. THE QUESTION ...............................................................................................................263 5.2. THE 1991 COLOMBIAN CONSTITUTION: THE CRITICAL JUNCTURE REVISITED ..............265 5.3. INSTITUTIONAL LEARNING IN JUDICIAL INSTITUTIONS ..................................................269 5.4. THE SUBSTITUTION DOCTRINE AND THE DISCURSIVE JUDGE .........................................274 5.5. AGENCY AND THE DELIBERATIVE JUDGE.......................................................................279 REFERENCES ...........................................................................................................................289 BOOKS AND JOURNAL ARTICLES .............................................................................................289 MEDIA.......................................................................................................................................310 COURT CASES ...........................................................................................................................315 Constitutional Court of Colombia .......................................................................................315 Actas................................................................................................................................................................ 315 Autos ............................................................................................................................................................... 315 Constitutionality decisions.............................................................................................................................. 315 Tutela Decisions.............................................................................................................................................. 317 Supreme Court of Colombia ................................................................................................317  vi Inter-American Court of Human Rights ..............................................................................317 INTERNATIONAL ORGANIZATIONS ...........................................................................................317 NON-GOVERNMENTAL ORGANIZATIONS .................................................................................318 WIKILEAKS CABLES..................................................................................................................318 APPENDICES .............................................................................................................................320 APPENDIX A: PUBLIC OPINION AND PUBLIC DISCOURSE ..........................................................320 APPENDIX B: INVESTIGATING PARAPOLÍTICA .........................................................................327 APPENDIX C: INTERVIEW DATA ...............................................................................................330 APPENDIX D: STATE AND STATE WEAKNESS. ...........................................................................335 APPENDIX E: DEMOCRACY INDICATORS ..................................................................................339   vii List of Tables  Table 1.1: Democracy measurements for Colombia 1985-2011 ...................................................................21 Table 2.1: Colombia’s high courts in the new constitutional regime. ...........................................................93 Table 3.1: Phases of the Parapolítica scandal. .............................................................................................158 Table 4.1: Uribe’s majorities in Congress, 2002-2010. ...............................................................................221 Table 4.2: Votes in Congress for Legislative Act 02 of 2004 and Law 1354 of 2009. ...............................222 Table 4.3: Constitutional Court decisions between 2003 and 2010 and the substitution doctrine. .............226 Table 4.4: Magistrates’ votes in the presidential election reform decisions. ...............................................234 Table 4.5: Interview data – views on constitutionalism inside the Constitutional Court. ...........................239 Table 4.6: Interview data - the implementation of deliberation in Colombia’s Constitutional Court. ........248 Table A.1: Quality of discourse, 2002-2010................................................................................................323 Table C.1: Comprehensive interview data. ..................................................................................................332 Table D.1: Freedom House Scores, Polity IV Scores, delegative democracy indicators, 1985-2011. ........339  viii List of Figures  Figure 3.1: The courts and the branches of government in Colombia’s 1991 constitutional regime. .........123   ix List of Graphs  Graph 2.1: Intentional Homicide Rate, 1981-2011........................................................................................82 Graph 2.2: Composition of Constituent Assembly 1991. ..............................................................................89 Graph 4.1: Presidential (dis) approval ratings, 2002- 2010. ........................................................................214 Graph A.1: Presidential approval ratings, 2002- 2010.................................................................................320 Graph B.1: Parapolítica investigations 2006................................................................................................327 Graph B.2: Parapolítica investigations 2007................................................................................................327 Graph B.3: Parapolítica investigations 2008................................................................................................328 Graph B.4: Parapolítica investigations 2009................................................................................................328 Graph B.5: Parapolítica investigations, 2010...............................................................................................329 Graph B.6: Parapolítica investigations, 2011...............................................................................................329 Graph D.1: Homicide rate per 100 000 Citizens, 1981-2011 ......................................................................336 Graph D.2: Total kidnappings per year........................................................................................................337 Graph D.3: Kidnappings by actor ................................................................................................................337 Graph D.4: Massacres committed by year ...................................................................................................338 Graph D.5: Tax Revenue (percent of GDP), 2001-2011. ............................................................................338     x Acknowledgements  Giants of the natural sciences, and polar opposites in their political conviction, Albert Einstein and Wernher von Braun agreed that research essentially is what scientists do when they do not know what they are doing. These endeavors of letting run free the speculative mind are impossible to conduct without the assistance and guidance of others. So it is now my privilege to thank those individuals and organizations that supported me in my modest effort to shed a little more light on the processes and procedures of political interaction that keep baffling our inquisitive minds. My supervisor, Maxwell A. Cameron, deserves the most credit for his patient support and willingness to not only read numerous drafts at various stages of my research, but also provide meticulous comments that, regardless of how painful the realization of one’s own imperfection as a consequence can be, always helped to significantly improve the content. My committee, Antje Ellermann and Pilar Riaño-Alcalá, also donated time and their respective expertise to sharpen questions and results. To both I am indebted for greatly benefiting from their advice at each stage of this project. Of course, research is never an individual effort. Even if we are bound to our laptops on our own – how the ivory tower more realistically looks like – we not only proverbially stand on the shoulders of giants (of whom there are way too many to provide even a short-list), we always benefits from the thoughts and arguments our peers and colleagues develop in seminars and discussions. The Political Science Department of the University of British Columbia provides a collegial and thought-provoking environment that never lets a question untested. For the hours of discussions I am thankful to my peers and professors, who have continuously inspired deep discussions and debates. The department itself always provided institutional support and critical funding that allowed me to travel to Colombia and conduct the research for this dissertation. I particularly owe thanks to Alan Tupper for his interest in this project. I want to thank my friends and colleagues Jan, Sam, Katrina, Agustín, Stewart and Rebecca for their help at critical  xi points of this dissertation. Of course, without Marlen by my side, it would have been difficult to live through the occasional anguish that comes with writing a thesis.  Throughout my research I benefitted from opportunities to spend time at institutions to develop my framework, collect data, and interpret research results. I am grateful to Prof. Mattias Kumm at the Wissenschaftszentrum Berlin für Sozialforschung (WZB) for inviting me to his Rule of Law and Global Constitutionalism Group. The Universidad de los Andes in Bogotá, Colombia, allowed me to benefit from their first class research facilities at the university and helped me procure contacts to conduct interviews. I want to specifically thank Felipe Botero, Juan-Carlos Rodríguez, Angelika Rettberg, and Victoria Gomez Segura. Prof. Charles Jones from Cambridge University provided space for a brief visiting scholarship at the Centre of Latin American Studies. Finally, Dr. Christian Steiner from the Konrad-Adenauer-Stiftung in Bogotá spent time and effort with me to organize interviews and co-ordinate them with student workshop held at their facilities in Colombia.  In the end, I am only left to give credit to the various interviewees, who remain anonymous, but deserve utmost appreciation, because they often sat with me for hours to debate and discuss the evolution of Colombian constitutional politics. Their responses are the backbone of the analysis that follows in the next 300 pages. Of course, any errors of facts and interpretation are my own.   xii Dedication  For Oma and Opa, who did not live to see the end of this, and Mama und Papa, who always gave a helping hand!   1 1. Introduction: Ethical discourse in delegative democracies  1.1. Democratic Legality triumphs over Democratic Security The Colombian state is a social state of law (estado social de derecho), defined thusly in the first Article of the 1991 Constitution. In general terms, the social state of law combines the liberal state and its focus on individualism and diversity as requirements for democracy with the materialization of human rights as benchmarks of justice (Eslava, 2009).1 The question of constitutional reform to allow presidential re-election, benefiting an extremely popular and powerful President, Álvaro Uribe, put the meaning of this clause to the test. Colombia’s Constitutional Court had to decide how far the legislature can go in amending the political charter before its basic principles are unrecognizably altered. In 2005, the Constitutional Court affirmed a law that sought to change the Constitution and allow one consecutive presidential re-election.2 In 2010, the Court defected and disallowed a law that called upon Congress to ask Colombians in a referendum to change the Constitution to allow a potential second and consecutive re-election of the President.3 The Court found that a third term fundamentally changed the institutionalization of the separation of powers, which, as the Court argued, was an axiomatic principle implicit in the social state of law and consecrated in the articles outlining the organic structure of the Colombian state (Art. 113).                                                 1 The term itself invokes the heritage of the 1948 German Basic Law and the Spanish Constitution from 1978, which stood as models to the constituent assembly that deliberated on the Constitution. Borrowing and further developing the concept of a social state that is based on the rule of law, Colombia’s new Constitution embraced five defining traits of Latin America’s turn towards neo-constitutionalism: 1) a Kelsenian system of constitutional review; 2) an expansive rights catalogue including private, social, and collective rights; 3) introducing international law – specifically human rights treaties – as constitutionally binding; 4) incorporating new and independent ombudsman institutions as well as specific mechanisms (the writ of injunction or tutela) to enforce human rights; 5) addressing governmental corruption through better functioning judicial institutions (Lee Van Cott, 2000). 2 Republic of Colombia. Constitutional Court of Colombia. C-1040/05. M.P. Manuel Jose Cepeda Espinosa, Rodrigo Escobar Gil, Marco Gerardo Monroy Cabra, Humberto Antonio Sierra Porto, Álvaro Tafur Galvis, Clara Inés Vargas Hernández. The denotation of Constitutional Court decisions follows a specific pattern: the letter specifies the type of case (C= Accion de Constitucionalidad; T= Tutela by a revision chamber; SU= Unification decision of tutelas by the Sala Plena; A=Auto), the middle number its chronological position of the year, and the number after the dash the year. M.P. indicates the magistrate(s) penning the initial study and decision (Magistrado Ponente; see Chapter 4). 3 Republic of Colombia. Constitutional Court of Colombia. C-141/10. M.P. Humberto Antonio Sierra Porto.  2 The Constitutional Court in Colombia through its decision not to grant the seal of constitutionality to that reform asserted its judicial power by drawing on a “substitution doctrine.” This doctrine increased the Court’s authority by means of a re-interpretation of constitutional norms enshrined in the 1991 Constitution. In the same period between 2005 and 2010, Colombia’s Supreme Court also disclosed scandals and revealed a web of nefarious relations between corrupt Members of Congress (from the President’s bench) and paramilitaries associated with the international narcotics trade. Together, the courts essentially stopped a corrupt and abusive executive in its tracks—an assertion of judicial power unprecedented in Colombia and perhaps in Latin America. Since many constitutional reform efforts elsewhere in the Latin American region before and since have resulted in the erosion of constitutionalism and judicial independence, the surprising outcome in Colombia has profound implications for our understanding of the potential of constitutional reform to reinforce the rule of law. This dissertation seeks to explain why the Court decided differently in 2010 from 2005, countered very evidently delegative trends in Colombia’s democracy, and reinforced the separation of powers and rule of law by buttressing horizontal accountability functions of a constitutional democracy. In the end, President Álvaro Uribe, who enjoyed significant formal powers assigned to the executive in the Constitution, and could count on extremely high levels of popularity throughout his entire time in the presidency, complied with the verdict.  This is not a narrative of institutional consolidation through interest alignment as is the explanation given in neo-institutionalist accounts of the consolidation of the separation of powers (North, 1990; North & Weingast, 1989; Helmcke 2005; Finkel 2008; for Colombia see Hartlyn 1989), nor does it follow a path dependent logic of institution building (Pierson, 2000; Mahoney, 2000; Page, 2006; Ackermann, 1991). The consolidation of the separation of powers in Colombia as a consequence of the empowerment of the courts in general, and the Constitutional Court in particular, followed a deliberative and communicative logic that evolved around discursive patterns. Central for the significance of this case is the so-called substitution doctrine, which weighs if a constitutional reform exceeds the actors’ competence to implement such a reform. It is judge made law, giving dogmatic expression to the principle of proportionality in constitutional adjudication. It is not only judge made law that does not  3 appear in the written text of the 1991 Constitution, some argue that it explicitly contradicts the stipulation that the Constitutional Court can review constitutional reforms for procedural defects only (Article 241, 1-3) by introducing substantive parameters for the review of constitutional reforms. For these reasons, this doctrine is central for understanding the importance of this case for institutional theory, because by virtue of its creation and evolution it defies a strategic account of institutional development. It is therefore only prudent to quickly review the two decisions central to this dissertation before explaining the contributions and designing the structure of this analysis.  1.1.1. Legislative Act 02 of 2004 “by which some articles of the Constitution are reformed and other dispositions are introduced” (C-1040/05)  The 1991 Constitution only allowed one term in the highest office of the Republic. Álvaro Uribe, contrary to most of his predecessors, was hugely popular in Colombia, and had achieved considerable successes with his Democratic Security policy, which, as the name suggests, rested on the notion that good democratic governance arises in a secure environment. Due to the perceived fragility of these successes, and the key role that Uribe was said to play in implementing his policy, calls for amending the Constitution started surfacing early into his first term; in September 2003, Congress discussed the issue for the first time in plenum. The Colombian Constitution provides three ways for amending the charter and its norms: by legislative initiative through Congress, a popular referendum (that passes through Congress), and a constituent assembly. In 2004, Congress initiated the re-election reform with law 02 of 2004 via the ordinary procedure through Congress. The reform project to allow a second immediate term in the presidential office encompassed four different articles: Article 1, legislating the provisions for the incumbent in order to level the playing field; Article 2, altering Article 197 of the charter to the wording that any individual cannot be president for more than two consecutive terms; Article 3, specifying the role of the vice-president; Article 4, guaranteeing the rights of the opposition in a statutory law. The last Article included a transitory clause, which gave the State Council measures to legislate in case the law did  4 not pass Congress prior to expiration of the legislative term or the Constitutional Court declared parts of the legislation unconstitutional.4  Article 241 of the Constitution stipulates that the Constitutional Court has the mandate to review constitutional reform projects. The norm differentiates between the ordinary way through Congress, in which case the Constitutional Court reviews those complaints submitted by citizens, and the call of a referendum or constituent assembly, in which case the review by the Constitutional Court is not limited to the individual complaints by citizens, but is all-encompassing. Regardless of the way the constitutional reform is initiated, the Court’s review is procedural only, and not substantive or material (“solo por vicios de procedimiento en su formación”). The constituents in the assembly in 1990 wanted a flexible constitution that is open to reform. In the case of the ordinary route, plaintiffs submit demands (demandas) against a law or reform. In 2005, citizens presented ten complaints against the constitutionality of Uribe’s reform, arguing that it incurred procedural defects in the formation of the legislative act and exceeded the competence of the actors that introduced the reform (‘substitution doctrine’).5 To begin with the formal complaints, plaintiffs lamented that the authors of the reform disowned the principle of the separation of powers by having the executive assist in legislative debates; the required first reading in the first committee of the Senate did not meet constitutional standards due to the absence of the Vice-President of the Senate; an open debate in Congress was suppressed when the President of the Chamber of Representatives ordered the vote to go forward June 17th, 2004, when opposition members were not present out of protest; the exact text of the reform was not published 24 hours prior to debate in the Congressional Gazette as is demanded by the Constitution nor were citizens interventions in the debates published in the Gazette; and complaints by fellow representative Germán Navas Talero against Yidis Medina against                                                 4 Republic of Colombia. Congress of Colombia. Acto Legislativo 02 de 2004. December 27, 2004; Last accessed on: January 7, 2015. http://www.alcaldiabogota.gov.co/sisjur/normas/Norma1.jsp?i=15519.  5 The case was the first hard case test for the theory of competence that the Court established in its 2003 decision (C-551/03) on Uribe’s first political reform of the Constitution (see Chapter 4). For the first time, a member of the Court dissented on the parameters of the substitution doctrine, but the doctrine was nevertheless applied and utilized to strike parts of the law down.   5 her last minute change were not given sufficient voice in the process.6  The most contentious part of the submissions argued that the reform constituted a substitution of the Constitution. They held that Congress did not have the competence to perform such a reform – only the primary constituent, namely the sovereign people, could invoke original constituent power to draft a reform of such substantial degree. They argued that Law 02 violated this doctrine, because of the absolute prohibition of re-election in Article 197 of the Constitution. In addition, they viewed the principle of equality violated by granting the President the possibility of re-election without according governors and mayors the same prerogative. Finally, plaintiffs argued against a statutory law that empowered the Consejo del Estado (State Council) to expedite norms in a transitory and supplementary way. The complainants held that Congress holds that power and cannot confer these powers to any other institution – much less a juridical institution without powers to legislate. They submitted that this, too, constituted a violation of the doctrine of competence and constituted a substitution of the political charter for which Congress lacked authority.7  The Constitutional Court followed the plaintiffs only on the point that the statutory law authorizing the Consejo del Estado with new powers amounted to a partial substitution of the Constitution, while the law enabling a second re-election in itself did not amount to such overreach of competence under the condition that the equality of chances for other candidates would be addressed in a statutory law. The Constitutional Court wanted to have the unfair advantage of a sitting president over his/her opponents minimized. In its entirety, the Court argued:  The essential elements that define a social and democratic system based on the rule of law, [and] on human dignity, were not replaced in this reform. The sovereign people will decide whom to elect to the presidency, the institutions with supervisory or overseer roles in electoral matters completely preserve their powers, the checks and balances system is still operating, the independence of the government branches is granted, the executive branch does not receive new powers, the reform contains rules to reduce the inequality in the electoral competition, which will be enforced by independent entities, and their decisions will continue to be subject to judicial review to protect the rule of law. It is not enough to make historical references suggesting that                                                 6 Republic of Colombia. Constitutional Court of Colombia. C-1040/05. M.P. Manuel Jose Cepeda Espinosa, Rodrigo Escobar Gil, Marco Gerardo Monroy Cabra, Humberto Antonio Sierra Porto, Álvaro Tafur Galvis, Clara Inés Vargas Hernández. 7 Revista Semana. “Estas son las demandas” 14 February, 2005. Last accessed: 2 August, 2014. http://www.semana.com/portada/articulo/estas-demandas/70872-3.   6 the drafters of the Constitution had the intention to limit presidential powers, and that therefore an amendment that contradicts that purpose is unacceptable. It is not enough to remark that the reason that may have inspired the drafters of the constitution to prohibit a presidential reelection is today a valid standard, by which to conclude that the elimination of such a prohibition amounts to a substitution of the Constitution. The historical analysis takes us to the exact opposite conclusion. The Constitution has clauses [and] mechanisms to update the institutional design when the social and political reality requires it. Some people could argue that there is not enough political maturity in Colombia to adopt an immediate reelection scheme; that the reform could take us to scenarios of violent confrontation or institutional instability; or that the powers of the presidency could be used in the reelection project. Such opinions, to the extent that they are not an expression of an objective substitution or destruction of the institutional design, belong to the sphere of political assessments, of timing and convenience, and cannot be a matter to the constitutional judge (C-1040/05).  The reform went ahead and Álvaro Uribe was re-elected President in a landslide victory. In addition, in the legislative elections held two months prior to the presidential elections, Uribe’s coalition increased its representative share in both houses of Congress, while the Liberal Party witnessed a quenching defeat in the elections to the Senate of the Republic. Uribe’s “coalition” in the Senate now controlled 61 out of 100 seats. 1.1.2. Review of constitutionality of law “by which to convey a referendum and submit a constitutional reform to the people” (C-141/10).    Uribe’s second term in office was a turbulent one. The President remained popular throughout the term and enjoyed spectacular approval ratings of up to 85 %; not least due to equally spectacular military successes against the FARC (Fuerzas Armadas Revolucionarias de Colombia; Revolutionary Armed Forces of Colombia) such as the hollywoodesque liberation of Ingrid Betancourt and the killing of some of its members of the high secretariat. However, at the same time, the second administration was repeatedly embroiled in different political and human rights scandals, tainting the successes of the military campaign against the guerrilla. Most damaging for the executive was the parapolítica scandal befalling Congress and threatening Uribe’s majorities in both chambers. This scandal, involving legislators (most from Uribe’s camp) and armed groups at the margin of legality, not only displayed that Colombia’s democratic regime was in real danger by the parainstitutionalization of its representative institutions (the co-optation by non-state armed groups), Uribe’s response and confrontation with the investigating court openly showed the dangers of excessive (and delegative)  7 presidentialism. As a consequence, even though Uribe’s personal popularity remained unaffected and high, the situation had shifted somewhat when the Court deliberated on the second constitutional reform to alter the norm guiding the election of the executive. Arguably, in 2005 denying a popular president another term carried a higher risk for the institutional stability of the country, in 2009, however, excessive presidentialism very evidently posed a greater risk to Colombia’s democratic institutions.  The law only included one article that included the referendum question of whether an individual, who had already been elected to the presidency should be able to be elected once more. Congress had to pass the law that would place that question to the people. Even though the referendum route differed from the constitutional reform in 2005, the juridical questions posed to the Constitutional Court were the same: did legislators violate formal aspects of procedure in the creation of the reform and did the constitutional reform exceed legislators’ competence? If a constitutional reform takes the referendum route, the charter subjects it to an all-encompassing constitutionality test that must examine the reform against all precedence set in its jurisprudence. In this particular case, it again entailed that the Court had to investigate whether procedural violations had taken place as well as a substitution of axiomatic principles implicit in the political charter of the nation.  The Court first affirmed its competence, arguing that its jurisdictional reach covered all procedures leading to a constitutional reform that pass through Congress, even when they originate outside the formal institutions and are plebiscitary in nature. It then moved to address the five complaints litigators had submitted to the Court in the litigation period. When a referendum for constitutional reform is convened, its committee of promoters and supporters must inscribe with the National Register of the Civil State (Registraduría Nacional del Estado Civil), and receive the support of five percent of legible voters (C-141/10; p. 11). The promoters raised the funds necessary, but did so with little respect to rules governing such campaigns. As Botero et al. write “the referendum records [were] murky and plagued with irregularities, such as self-loans between organizers that deliberately attempted to obscure the way in which the referendum was financed. Promoters spent six times more than the spending cap permitted”, with contributions by individual donors sometimes thirty times as high as  8 allowed (Botero, Hoskin, Pachón, 2010). In addition, Congress violated the requirement to have the votes of support confirmed by the National Registrar prior to vote on the bill and went ahead without approval. The next violation concerned the wording of the referendum. The text placed before the electorate actually read that Uribe would run again in 2014. Promoters of the law assuaged this when the bill was already in Congress. The Court argued that Congress extra-limited itself by changing the wording this late in the process (Botero, Hoskin, Pachón, 2010). The final two procedural flaws involved the domiciliary right - or house right - of the Colombian Congress. The majority backing reform in Congress had five Congresistas (Members of Congress) amongst their ranks, who had joined Uribe’s coalition from a party that parted with Uribe (Cambio Radical). However, the laws against transfuguismo, the practice of changing party affiliation, disallowed such maneuvering between party caucuses and Cambio Radical had sanctioned them, essentially invalidating their votes. Without their votes, the reform coalition did not have the required majority in Congress. Finally, the bill was struck down, because it was not passed within the time limit of the ordinary session that expired December 16th, 2008, at 24:00. At that time, Uribe’s coalition had called-in an extra-ordinary session that began at 00:05 of December 17. However, since extra-ordinary sessions had to be published in the Diario Oficial 24 hours before, the session, too, was invalid and the ordinary session long expired (Botero, Hoskin, Pachón, 2010). These formal violations sufficed to end Uribe’s aspiration for another term in 2010. The magistrate voted 7:2 to declare the law for a referendum unconstitutional on procedural grounds. The Court went further, though, and barred Uribe from the presidency as long as this Constitution is valid, and closed the path through Congress for constitutional reforms of such magnitude. Five magistrates on the Court insisted during the deliberation with their colleagues that the Court had to apply the substitution test, because the Constitution stipulated that judicial review is all encompassing for constitutional reforms taking the referendum route. The substitution test requires the Court to investigate whether the proposed reform introduces a new element or whether it replaces an element from the original text. If it finds that the proposition contradicts the  9 original norm, it must declare the reform unconstitutional for extra-limiting the competence of its author.  The Court argued that the separation of powers is an axiomatic principle of the social state of law that is inscribed in the first Article of the Constitution as well as in the democratic principle of the Colombian Constitution (Article 137). In addition, it specified that the separation of powers in the 1991 Constitution is institutionalized in what is referred to as the periodization of offices. Since presidents in Colombia’s constitutional design wield a large amount of power, constituents sought to constrain their authority by limiting the overlap of their time in office with appointees in offices that have accountability functions. For example, the president can present the short-list of candidates for three positions (out of nine) on the Constitutional Court. Under the original scheme, only every second President, towards the end of his term, had the opportunity to get three of his choices elected by the Senate. With one re-election this changed so that every President could have the opportunity to affect the composition of the Court, and enjoy a much longer time in office with a faction on the bench that he himself selected. The five magistrates argued that another term would further dilute these checks and balances (pesos y contrapesos), not only modifying an axiomatic principle of the Constitution, but substituting it for another. For that, Congress and the President lacked the competence, because only a constituent assembly wields original constituent power legitimating it to draft reforms of such degree. Thus, in a closer vote (5-4), those five magistrates voted the reform down on competence grounds (C-141/10).  When President Uribe received the decision, he declared that the estado de opinión (state of opinion), the ideological figure in his rhetoric justifying the constitutional reform, was not a contradiction to the estado de derecho (state of law or rule of law), but an expression thereof; an assertion that he had not made unequivocally clear prior to the Court’s decision. Now he exclaimed that the estado de opinión must respect the law, because citizens’ participation, its key element, cannot function without confidence in the law and the Constitution. Therefore, he complied with the Constitutional Court’s decision and conceded that there are limits to constitutional  10 reform.8 The importance of this decision arises not least because it is illustrative of an evolution of institutional robustness of the Colombian judiciary in general, and the Constitutional Court in particular. In various fields of constitutional rights jurisprudence, the Court enforced a progressive and “guaranteerist” portfolio that encompassed private, social, and collective cultural rights. What is more, the decision and adherence by President Uribe and his followers to the verdict showed that Colombia was a constitutional democracy, in which the verdict of the guardian of the Constitution in situations where political ambitions and pre-conceptualizations clash, is respected as a guarantee for the “happiness of some and the tranquility of the rest”.9  1.1.3. The question of judicial power in Colombia    Judicial power has two conceptual components. On the one hand, it is defined as the degree of judges’ institutional independence and, on the other hand, as the authority they command in their exercise of judicial review. Courts’ authority breaks down into vertical control involving rights adjudication, and horizontal control involving inter-branch adjudication (Helmke & Ríos-Figueroa, 2011; Ríos-Figueroa, 2011; Kneip, 2011). To fully appreciate the significance of this event for comparative politics, we need to emphasize three key observations: 1) President Álvaro Uribe was an extremely popular and powerful president, who had few scruples to utilize his transformative capacities to initiate a far-reaching reform agenda that served his own political agenda; 2) the Court’s authority appreciably increased between 2005 and 2010; 3) the jurisprudence of the Court involved a doctrine that is not explicitly mentioned in the Constitution, but a re-interpretation of the norms outlining judicial review of constitutional reforms. Consequently, an answer to the question that asks why the Court decided differently in 2010 from 2005 must account for the three caveats of this case.  Institutionalist inquiries study the development of structures and agency therein sequentially (Sanders, 2006), and I intend to do the same. In order to appreciate Uribe’s peculiar position in Colombia’s history – he commanded popular power like no other                                                 8 Revista Semana. “Declaración de Uribe respecto al fallo de la Corte”. 26 February, 2010. Last accessed: 9 February, 2015. http://www.semana.com/politica/multimedia/declaracion-uribe-respecto-fallo-corte/143458-3.   9 Interview subject no. 30 (with a Constitutional Court judge), 20 November, 2012.   11 president before him – and the novelty of the 1991 Constitution that established the Constitutional Court, we need to pay close attention to macro historical processes of institutional development. Furthermore, the Constitutional Court’s increase of judicial power must be viewed in the context of its twenty-year existence making a structured post-genesis investigation of Colombia’s institutions indispensable. This will provide valuable insights for institutional development and theories of institution building. Finally, a close inspection of the processes taking place in the chambers of the Court during the deliberation of the specific re-election cases will help to understand the discursive nature of decision-making processes in constitutional courts. Applying the vocabulary of comparative politics to these caveats, we are left with three research questions that will guide each chapter:   • Does the 1991 Constitution amount to a critical juncture in Colombia’s political history? • What did the post-genesis evolution of Colombia’s constitutional jurisprudence look like? • What motivated judges to develop and apply the substitution doctrine, which struck down Uribe’s reform to extent the number of terms in the presidential office?  This analysis seeks to demonstrate the relevance and importance of the Constitutional Court’s decisions for institutional theory by proposing a three-level inquiry that moves from macro to micro processes. Firstly, the Constitutional Court’s moment of genesis is atypical in Colombia’s political history, because the constituent process that drafted the 1991 Constitution fundamentally differed from previous instances of institutional engineering: new actors participated and procedures were much more transparent, public and inclusive than before. Secondly, post-genesis evolution is difficult to grasp with the conventional or classical interpretation of path dependence that traces outcomes to early decisions from which they linearly develop, because legal decisions remain open to contestation. In Colombia, incremental change evolved from within the institution and implied course corrections. Thirdly, the institutionalization of deliberation inside the  12 Constitutional Court centered on the differentiation between political and legal reasoning. Embracing the latter, deliberation inside the Court constrained magistrates’ individual preferences (be they ideological or material) and imposed an ethics of reason upheld by formal and informal rules governing deliberation. In sum, this analysis will show an instance, in which institutions ought not to be understood as structured expectations in a utility maximizing game or regularized patterns of conduct, but as discursive structures. 1.2. The peculiar case of Álvaro Uribe  There are two aspects that make this case important for comparative politics: 1) Colombia sets itself apart from its Southern Cone neighbors, having a long history of democratic rule paired with high levels of violence; 2) Álvaro Uribe was an atypical leader in the nation’s presidential office, who commanded far-reaching de jure and de facto (popular) power that he used to move his agenda forward. It is this aspect of his style of governance that makes the 2010 decision so unique and important for our understanding of institutional development. His distinctiveness in Colombia’s history, in turn, can only be intelligibly explained in the context of the broader history of Colombia’s democratic institutions and their susceptibility for violent confrontation. As a consequence, both of these aspects require at least a brief a priori grounding in order to fully grasp the contributions of this dissertation.  Democracy in Colombia has its roots in the immediate aftermath of independence, but it evolved with a factionalism that planted the seed for violent confrontations throughout the 19th century and later in the 20th century. The main factions of the independence armies under Símon Bolívar and Franciso de Paula Santander already fought over the direction of the newly formed republics. Both were deeply influenced by the Republican thought of the French and American Revolution and argued over how centralist or federalist the republic were to be, what position the Catholic Church were to be given, and what powers presidents were to receive (Bushnell, 1993; Valencia Villa 2012).10 Factionalism became more deeply ingrained in the course of the wars that                                                 10 Bolivar is the liberator of the region from the Spanish Crown and is most often dubbed as the man of the arms, who favored a more authoritarian and centralistic orientation of the new polity. Santander was Bolivar’s general and his “man of the laws”. The name is program in that he tended to a much higher  13 separated Colombia from the Spanish colonial power. The trajectory of the Wars of Independence left the field open for regional strong men to consolidate their control over the local population and resources. These power clusters are the nucleus for Colombia’s party system as well as the factionalism befalling the republic ever since.  In the aftermath of the Wars of Independence, caudillos and other leaders within Colombia fought each other in up to fourteen national civil conflicts and fifty regional conflicts (Deas, 1997; Bushnell, 1993). In the 20th century, factional warfare was again a prevalent feature in Colombia. After a period of peace that lasted from 1903 until 1948, Colombians fought each other in the continent’s most violent internal war that is eponymously known as La Violencia (the Violence). The National Front reforms could not entirely appease the country and by 1964 the FARC formed as the first of a number of guerrilla groups, commencing the revolutionary and counterinsurgency war. This conflict greatly intensified with the propsering of the drug trade in the late 1960s and early 1970s, creating powerful right-wing paramilitary groups that fought in a coalition between drug lords, landowners, and the armed forces of the state (Bergquist, Peñaranda, Sánchez, 1992 & 2001). The most remarkable trait of Colombian politics is, of course, that despite the tendency for violent conflict, democratic institutions continued to operate. Arguably, 1849 was the most critical watershed year in the 19th century political history, because both traditional parties, the Liberal and Conservative Party, formed in the course of a public debate on normative ideals. From that moment until Uribe’s election in 2002, Colombian public politics were structured through the affiliation to one of the two political parties, making it one of the longest lasting and most institutionalized party systems of the hemisphere. The party system survived prolonged internal conflicts as well as brief periods of military rule. Above all, the institutionalization of two-party politics meant that relatively competitive elections with a fairly generalized electorate                                                 formalism and valued characteristics that were more liberal in origin: decentralization, federalism, and formalism. His epigraph, “the sword has given you the independence, the laws will give you your liberty”, is imprinted on the Justice Palace in Bogota.  14 became a feature of Colombian politics at a time when European countries were still governed by kings and emperors.11  In its more than two-hundred-year history, only twice was Colombia ruled by military men. Contrary to military rulers in the Southern Cone, though, General Rafael Reyes (in power from 1904 until 1909) and General Rojas Pinilla (1953-1957) did not acclaim the presidency in a coup nor did they install regimes akin to the bureaucratic authoritarian dictatorships in Argentina and elsewhere in South America (O’Donnell, 1968). Rather, these brief intermezzos with military regimes helped civilian elites in either party to strike power-sharing deals to overcome impasses that had resulted in violent bloodshed: the re-accomodational reforms of General Reyes (and the Post-Reyes period), and the National Front Agreement. Thus, rather than destroying the stable two-party system, these periods had the effect of further embedding them and creating a legacy of bi-partisan consociationalism (Hartlyn, 1988 & 1989).  The secret to the party-system’s success may well lie in the peculiar way it connects with foundational socio-political relations in Colombia’s society. Above all, the long trajectory of the party system is rooted in its formidable capability to absorb social cleavages without actually addressing the grievances at the root of social polarization - an ability that clearly showed during both reform processes consolidated under military tutelage. Beneath the apparently stable and democratic party-system lies a web of symbiotic relations between patron and clients (Archer 1989; Eaton, 2006). Clientelistic relations are defined by three basic parameters:   two parties unequal in status, wealth, and influence, 2) the formation and maintenance of the relationship depends on reciprocity in the exchange of [non-comparable] goods and services; 3) the development and maintenance of a patron-client relationship rests heavily on face-to-face context between the two parties (Archer 1989).12                                                  11 Already the 1853 reforms to the 1851 Constitution introduced universal male suffrage, which was then limited to literate men above 21 years of age in the 1886 Constitution. This war repealed in the 1936 reforms and women gained suffrage in the National Front reforms of the 1950s (Fergusson & Vargas, 2013). 12 The definition is derived from John Duncan Powell’s seminal study “Peasant society and clientelistics politics” (1970). Mainwaring derived a similar definition by identifying four features in clientelistics relations: 1) unequal character; 2) uneven reciprocity; 3) non-institutionalized nature; 4) their face-to-face character (1991). See also Dix, 1980 & 1987; Leal Buitrago 1980; Schmidt, 1974; Martz, 1997.  15 These basic parameters of clientelists relations help us to differentiate between socio-political patterns in Colombia’s history and establish three periods of clientelism: traditional clientelism stretching from independence until the 1930s, broker or modern clientelism extending from 1950s until the 1980s, market clientelism combined with armed clientelism from 1991 until today.13 The traditional form of patronage is rooted in the absence of a strong centralizing institution after independence in the beginning of the 19th century. When the liberating armies left, regional strongmen became natural leaders, Caciques, who tied the local population through affectionate relations to their domus. Little economic penetration of the hinterland left them largely to themselves, enabling them to deal with collective action problems violently. When violence between factions became too costly, these warlords noted that the party label was a convenient means to establish co-coordinating points without relinquishing their hegemony in the territory under their control. This had the consequence that the discourse of either party – as progressive as it might have appeared – hardly ever matched the political realities: unequal social relations and access to political power remained intact for the entire 19th century. Nation building and national institutions only went so far as they left traditional power relations in Colombia’s regions untouched. The party system is therefore a direct consequence of the absence of the state and at the same time perpetuated its debility, because rather than modernize social relations, archaic relations were conserved through the party label. Importantly, the dissection of national institutions with particularized interests in the party system undermined the provision of public goods, resulting in a high number of internal conflicts between different regional factions that never resulted in a definite victor, again perpetuating the underlying social relations (see Chapter 2).  The consociational deals struck under military guidance, and the economic development associated with the more peaceful situation that followed these deals, helped transform traditional relations of dependence to broker forms of clientelism. These functioned around the original clusters of dependence, but enabled each cluster to negotiate political support and economic development with each other. Thus, these                                                 13 See Buitrago, 1980; Archer, 1989; Peñate, 1998; Gutierrez Sanín & Dávila, 2001; Dávila & Delgado, 2001; Eaton, 2006; García Villegas & Revelo Rebolledo, 2010.  16 various clusters resolved the most pressing issues concerning the exercise of power with, but did not establish institutions that created upward mobility for lower classes. To illustrate: the Thousand-Day-War as well as the collapse of internal security prior to La Violencia essentially consisted of infighting between the Conservative and Liberal Party, which eventually escalated to civil war proportions. The occurrence of neither instance of violence was definitely rooted in a deep social or cultural cleavages, but rather resulted because of the inability of elites to compromise and strike deals that satisfied the entire range of either party’s membership and leadership. Both deals then essentially addressed these issue of factional infighting and served to conserve the socio-political relations by placing them on a more stable formal institutional setting. After the Reyes reforms Liberals enjoyed minority representation and Conservatives controlled most political offices. After the National Front reforms, both parties interchangeably occupied the highest offices in the country and shared representation in the legislature. Both agreements and subsequent socio-political regimes quelled violence, but above all, ensured that traditional elites remained at the pedestal of social power and continued to control the political and economic agenda. Clientelistic relations adapted to the new institutional context, but in their essence remained unchanged and excluded a large section of Colombia society from the benefits of economic development.  The restrictive nature of the National Front agreement and exclusion of legal political contestation eventually opened the path to internal fragmentation of the party system by shifting inter-party competition to intra-party competition. Elections, even though held regularly, could not contain political discontent to peaceful means and created opportunity structures for violent actors to exploit. The arrival of the Cocaine trade aggravated the challenges to the regime and helped armed actors to consolidate huge resources and political influence at the regional level outside of direct state control. These groups – guerrilla groups on the left and paramilitary groups on the right – expanded and controlled pockets of territory, becoming “aspiring state makers” (Bejarano & Pizarro, p. 252). Sociologists call this phenomenon armed clientelism. With the help of their coercive resources, groups could extort control from local politicians and thereby siphon off financial and political resources. In the end, it provides them an inroad to legal politics.  17 In the last three decades, the Colombian conundrum must be viewed in the context of armed clientelism, which pitted various guerrilla groups, paramilitary groups, and the state’s armed forces against one-another. In the course of this conflict, the state’s already tenuous capacities further contracted, because it could not eliminate or neutralize its internal enemies and thereby fulfill the four state building tasks.14 As a consequence, Colombia suffered severe deficiencies in one of the central playing fields of democratic governance. Bejarano and Pizarro contend that it is “true, elections are held on a regular basis – but candidates and elected politicians are also regularly assassinated. The press is free from state censorship, but journalists and academics are systematically murdered” (2005, p. 236). Since “Colombia’s regime is a democracy whose faults are not to be located at the level of the typical dimensions of polyarchy (i.e. participation and opposition)”, its weakness must be situated on the extra-institutional playing field that is populated by armed entrepreneurs. Colombian history in the last decades has shown that when the state recedes and leaves the space open for violence entrepreneurs, these groups establish alternative systems of governance in the territory under their control that have little in common with democratic rule and the rule of law. Therefore, Colombia constituted a “besieged democracy”, that separates into the electoral field, the rules of which are largely respected by legally recognized actors, and the extra-institutional field, where the rules of war apply rather than the rules of democracy (Bejarano & Pizarro, p. 237). It is in this context of a highly contested monopoly of violence and unequal social relations beneath the formal institutional level that Álvaro Uribe appeared on the political scene in Colombia. He came from a landowning family and his ranchero father had been assassinated by the FARC. Prior to 2002, he had gained some political recognition as Governor of his home Department of Antioquia for defending a tough-hand internal security policy approach, which often appeared close to the landed interest that gave rise to the paramilitary project. In the run-up to the presidential election to replace Andres Pastrana, his security record – however ambivalent it in reality might have been – turned out to be a valuable talking point. In 2002, after peace negotiations with the FARC had                                                 14 These are: 1) “war making” to eliminate foreign rivals, 2) “state making” to eliminate internal rivals, 3) “protection” to eliminate the rivals of their clients, and 4) “extraction” to acquire the resources to fulfills the previous tasks. All of these are contingent on exercising the monopoly of violence (Tilly, 1985).  18 failed, and the AUC paramilitaries exercised a tremendous amount of power, some believed Colombia to be at brink of becoming a failed state (McLean, 2002).15 It was this fact that helped Uribe generate a victory in the first run of the 2002 elections. With his heritage as a landowning rancher, Uribe could hardly claim to represent the popular masses, yet, his tough hand security approach (and successes), enabled him to amass popular support. In addition, he ran outside the two traditional parties and could thereby posit himself outside of traditional politics, although he benefitted from his links with the Liberal Party. He used his cloud of popularity and maverick posture to cultivate a strong following, which in addition to internal security focused on creating natural bonds between rulers and ruled as part of a Democratic Security. It is the second point, creating tightly knit bonds between rulers and ruled, that later gave rise to observations that Colombia also exhibited signs of a delegative democracy.  It is unusual in Colombia, because despite the far reaching de jure powers accorded to the executive, the President could never make use of them since he relied on informal networks in the party system that essentially functioned like horizontal controls on his power (Archer & Shugart, 1997). Uribe’s popularity, sense of mission, and capability to utilize both to expand his power fundamentally altered that and by 2007 the Council of Hemispheric Affairs criticized Uribe for political practices associated with delegative democracy (Kline, 2009).16 So what precisely was delegative about Uribe’s style of rule? O’Donnell made the observation that Latin American democracies constitute something akin to a new animal in 1994. The newly democratized nations matched Dahl’s definition of polyarchy, but were not on the way to becoming fully institutionalized democracies nor were they really                                                 15 As Appendix D makes readily apparent, the security situation was indeed dire: intentional homicides had almost reached all-time highs again, and the number of kidnappings climaxed to unprecedented heights. 16 Kline, in his optimistically called book Showing teeth to the dragons, rejected the hypothesis that Colombia during the Uribe administration showed worrying signs of a delegative democracy. According to him, Uribe only successfully defined the greater good of the nation with his hard line against the guerrilla (otherwise he was constrained by Congress and the judiciary), he fulfilled his campaign promise of ending the insurgency, he had the support of a party and had no intention to form his own movement, and even though he considered Congress and the judiciary a nuisance, he did follow courts’ verdicts (2009, p. 182). Kline’s verdict might have been a little too optimistic, given that he developed the book two years prior to the end of Uribe’s term. His second term in office was mired in scandals, which together do indeed paint the picture of a president that thought himself to be equipped with delegative powers.  19 in danger of reverting to authoritarian rule (O’Donnell, 1994, p. 56). Most importantly, he noticed that presidents seemed to govern as they saw fit. O’Donnell understood that in ideal democracies each institution fulfills a crucial role in mediating between structural factors and the aggregation of individual interests and identities (p. 59). However, the research on presidential regimes has suggested that “the president is a one-person executive, [in which] the members of presidential cabinets are mere advisers and subordinates of the president” (Lijphart 1994, p. 93). Linz and Valenzuela, too, argued that presidential democracies almost inevitably place the president above the pragmatic politics of mediation between interests. They held that the framework of being directly elected for fixed terms seems to suggest to presidents that they have a personal mandate (1994). O’Donnell coalesced these observations into his model of delegative democracy that essentially evolves around the notion that “whoever wins (reasonably free and fair) elections to the presidency is thereby entitled to govern as he or she sees fit, constrained only by the hard facts of existing power relations and by constitutionally limited term of office” (1994, p. 59-60).  A critical component of delegative democracies is its plebiscitary features that are instrumentally utilized to push aside key horizontal control institutions. As O’Donnell explains, strategies often involve directly appealing to the people and bypassing the legislatures, parties as well as organized civil society groups (O’Donnell, 1994). He explains that representation may exist alongside delegation, but never achieves the degree of fixedness as in constituted representative democracies due to the lack of horizontal accountability. In systems of separation of powers, the legislature and judiciary enforce horizontal accountability. When these are pushed aside as nuisances to the rebirth of the nation, the republican dimension of democracy that enforces the differentiation between the private and public exercise of power is also pushed aside, undermining the effective exercise of the rule of law. As Cameron, Blanaru, and Burns showed: if presidentialism tends to erode regime stability, due to its rigidness, immobolism, and aggressive majoritarianism, coalesced into a one-man executive, it also tends to result in a vicious circle in which electoral outcomes maybe respected, but legal norms are treated with disdain (2006).  20 When originally conceived, O’Donnell’s construction of delegative democracy was the result of inductive reasoning, which, given his rich experience in comparative politics, was certainly empirically informed. Over the years, it not only proved to be an appealing theoretical concept, but was also more explicitly applied to empirical cases in an effort to refine its conceptual elements. After twenty years of experience in studying the evolution of “uneven democracies” (Brinks, Leiras, Mainwaring, 2014), the fruits of this collective research effort have specified the meaning of delegative democracy and resulted in an index of eight testable elements. According to González (2014), these are:  • The president is taken to be the embodiment of the nation. • The policies of his government need bear no resemblance to the promises of his campaign. • The president’s political base is a political movement; the president herself as above both political parties and organized interest. • Other institutions, courts and legislatures, are considered impediments to the exercise of power. • Exercise of power is non-institutionalized. • The president nominates isolated and shielded técnicos to office. • There is extremely weak or non-existent horizontal accountability. • There is swift policy making leading to the possibility of gross mistakes and hazardous implementation.  González used this break down of delegative traits into eight variables to create and index of “delegativeness”. He then plugged in the data from various countries in order to trace the evolution in various countries. To conclude this brief discussion and visualize Uribe’s effects on Colombia’s institutions it is useful to reproduce his results together with the scores from other democracy and freedom measurement indices (table 1.3). Freedom House measures civil and political rights on a scale from one to seven, while polity measures the state of national elections for competitiveness and openness, the nature of political participation in general, and the extent of checks on executive authority. The Delegative Democracy Indicator measure the abovementioned traits and gives a score for each of those features present (eight in total).     21  Table 1.1: Democracy measurements for Colombia 1985-2011  Year Freedom House Scores (1-7; 1 being most free) Polity IV (Out of 10) Delegative Democracy Indicator (out of 8 features)   Freedom Rating  Civil Liberties Political Rights     1985 2,50 3,00 2,00 8 2 1986 2,50 3,00 2,00 8 5 1987 2,50 3,00 2,00 8 0 1988 2,50 3,00 2,00 8 0 1989 2,50 3,00 2,00 8 1 1990 3,50 4,00 3,00 8 4 1991 3,50 4,00 3,00 9 1 1992 3,00 4,00 2,00 9 0 1993 3,00 4,00 2,00 9 0 1994 3,00 4,00 2,00 9 1 1995 3,50 4,00 3,00 7 5 1996 4,00 4,00 4,00 7 4 1997 4,00 4,00 4,00 7 5 1998 3,50 4,00 3,00 7 5 1999 4,00 4,00 4,00 7 2 2000 4,00 4,00 4,00 7 1 2001 4,00 4,00 4,00 7 3 2002 4,00 4,00 4,00 7 4 2003 4,00 4,00 4,00 7 1 2004 4,00 4,00 4,00 7 1 2005 4,00 4,00 4,00 7 3 2006 3,00 3,00 3,00 7 4 2007 3,00 3,00 3,00 7 5 2008 3,00 3,00 3,00 7 4 2009 3,50 4,00 3,00 7 6 2010 3,50 4,00 3,00 7 6 2011 3,50 4,00 3,00 7   Source: Freedom House (the freedom score consists of the average between political and civic rights); Polity IV; González, 2014, p. 244.  The values in the delegative column make readily apparent that Colombian democracy – or more precisely its democratic institutions – came under pressure beginning in 2006. It was the year that Uribe was re-elected and the parapolítica scandal involving nefarious relations between Members of Congress and paramiltiaries were earnestly investigated  22 and prosecuted by the Supreme Court. Senators and Representatives from the uribista coalition – including Uribe’s cousin, Mario Uribe – were particularly prominent amongst the indicted congresistas. As a consequence, Uribe and his advisors commenced a campaign against the Supreme Court that did not shy away from personal attacks. Also noteworthy is that the delegative trends climaxed in the last two years of Uribe’s presidency (2009 and 2010). This was the period when the uribista camp prepared the campaign for another constitutional reform process to extend periods in the presidential office. Both these processes combined made evident that there was indeed a very obvious trend towards pushing aside horizontal control institutions as nuisances. In the end, it should not come as a surprise that the Uribe presidency turned more delegative than previous presidencies in Colombia. His ideal of social cohesion between rulers and ruled is built around notions of natural leadership, communitarian ideals of citizenship, and authoritarian trust in political leadership. His sense of mission and agenda to reform the constitutional order not only emulates these ideals, but further developed them into practical doctrines. In the first term, he mostly spoke of the communitarian state and in the second he used the figure of the estado de opinión (state of opinion). It builds on Rousseauesque notions of the General Will, claims for itself to precede constituted power, and thereby defies any control other than public opinion (hence: estado de opinión). Neither is it surprising that the “maximalist” interpretation of the estado de opinión can be used as a means to treat horizontal controls with contempt.17 What is surprising is that both, the Supreme Court and the Constitutional Court of Colombia, withstood these pressures and earnestly followed their tasks to independently and autonomously apply the law of the land, regardless of the popularity and power of the President and the means utilized by the executive against their mandate. These characteristics of Colombian politics, the uniqueness of Uribe as well as the audacity of Colombia’s courts signify the importance of this case for the study of comparative politics. I will approach the study by internally disaggregating the Colombian case and thereby increase the comparative leverage of this study. Above all, this will provide new insights for our understandings of institutional development.                                                 17 Uprimny, Rodrigo. 2009. “¿Estado de Opinión o de Derecho?” In El Tiempo. 17 August, 2009. Last accessed 25 June, 2015. http://www.elespectador.com/columna156600-estado-de-opinion-o-de-derecho.  23 1.3. The Primacy of Democratic Legality over Democratic Security and its significance for discursive institutionalism   The Constitutional Court’s decision to prevent a potential third Uribe term in the presidential office essentially meant that Democratic Legality, the legal authorization of political power, prevailed over the imperatives of Democratic Security and Uribe’s communitarian and plebiscitary appeal to circumvent horizontal control institutions. This analysis will show that this outcome has profound ramifications for our understanding of institutions and the way that they evolve. It is true that the three chapters take a broad view at Colombian history, going as far back as the 19th century, but it is not only the palpable fact that they all deal with Colombian history that ties them together. Rather, each chapter will bring an underappreciated variable to the surface: the formidable force of agency. Neo-institutionalism has had two deficiencies: 1) a bias for structure rooted in concptualizations of institutional developments as striving for equilibria; 2) limiting human agency to rather simplistic (namely utility maximizing) microfoundations of human motivation (Hall & Taylor, p. 950). The analysis will show that human agency matters; whether it involves macro social processes of constitution-making, or micro processes of legal decision-making.  Political philosophy has long moved away from conceptualizing the individual as naively and affectively paying respect to authorities in favor of an understanding of authority as emanating from communicatively shared validity claims that arise and are tested in deliberative processes (Habermas, 1996; March & Olsen, p. 15). Yet, when historical institutionalism turned against the behavioralist accounts of the 1950s and 1960s that took the institutional structure for granted, they, ironically, also rediscovered “the momentous agency of ‘state managers’”; exactly at a time when historians started rejecting the study of “powerful white men” for the histories of the people (Sanders, 2006, p. 45).  The analysis of the 1991 constituent process to some degree serves as a correction of this trend to only identify the agency of state makers as important, because it identifies the centrality of communicative action for the selections of topics and processes to negotiate and deliberate the new political charter. Communicative action, reflected in the actors involved in the drafting the Constitution as well as the processes  24 followed to organize debates, is what set it apart from earlier experiences of institution making in Colombia. My analysis will utilize the Colliers’ critical juncture approach to the study of institutional genesis. This will show that the 1991 Constitution by virtue of the events and processes that triggered the collective movement calling for a constitutional renewal, and the implementation of procedures to negotiate the norms of the political charter differed from previous instances of institutional engineering – namely the reforms associated with General Rafael Reyes and the National Front. At the beginning stood a student movement that spontaneously formed after the traumatic assassinations of promising political leaders (Luis Carlos Galán). It then morphed into a genuine, cross-sectional, and multi ideological social movement that engaged in communicative action to draft suggestions for a new constitution. The procedures to discuss norms were public and gave citizens the opportunity to submit points that had to become the subject of debates in the constituent assembly. Finally, the composition of the assembly itself included various new and formerly marginalized political actors. It therefore shows two important caveats of deliberative democracy: the appearance of communicative power to create ideal speech situations. Given the institutionalization of this public constituent process, it is not surprising that the result – the 1991 Constitution – was very different from previous constitutions, and, above all, included an expansive rights catalogue and mechanisms to enforce these rights. After all, it was a neo-constitutionalist moment that valued rights, because they correspond well with the authorization of political power in publically shared validity claims.  The next chapter concerns post-genesis evolution. Historical institutionalists provided comparative politics with one of the most powerful tool to conceptualize institutional development by borrowing from economics and hold that institutions reproduce themselves in path-dependent logic (Pierson, 2000). The logic implies that once a decision is taken, lock-in, increasing returns, and other equilibrium-based mechanisms ensure that further institutional development follows the direction of the early decision.  This analysis will test if the path-dependent logic holds for the post 1991 evolution of central legal institutions. After the implementation of the new Constitution,  25 Colombian jurisprudence evolved, resulting in a valuation of earlier decisions over later ones. Together with the origin in a moment of contingency that could not be predict on existing institutional patterns, two central conditions for path dependent development were fulfilled. This chapter will develop an ideal-type reading of path dependence rooted in classical conceptualizations. It will then apply that reading to the post-genesis evolution of legal institutions. Legal institutions were most fundamentally restructured in the 1991 Constitution – not least because of the abhorrent human rights situation that motivated the student movement and later the constituents to redraft the political charter in the first place.  Since the inclusion of rights is the most important merit of the new Constitution, a meaningful post-genesis analysis of institutional development must pay credit to the centrality of rights in the constitutional framework. The tutela – a writ of protection any Colombian citizen can file against rights abuses by public institutions – is evidently concerned with human rights, and also creates tensions between actors that can give rise to distributive dynamics that was often identified as the source of path dependent developments. The Constitution subjects decisions by all public institutions to rights based judicial review, but also states that the Supreme Court is the highest instance of the ordinary justice. This created a clash over jurisdiction – the so-called choque de trenes (train crash), which evolved around the question of whether the Constitutional Court can review decisions of the other high courts. The potential for distributive dynamics becomes amplified by the absence of parliamentary immunity in the new political charter. The 1991 Constitution invested the Supreme Court with the task to investigate and judge criminal allegations against Members of Congress, who in turn exercise the same task vis-à-vis the President.  Together, this sets up a configuration of actors and rules that is valuable for our understanding of institutions and their trajectory, because 1) various courts with different jurisdictions and contradictory normative principles results in a distributive conflict over the application of those norms; 2) these tensions are amplified by the absence of parliamentary immunity (further adding distributive dynamics to the equation); 3) the connection to rights and rights defense introduces ideational variables that involve the meaning of foundational constitutional principles.   26 In a longitudinal study of two political scandals involving the criminalization of Congress and the strategies used by Members of Congress to avoid prosecution, I will show that in the course of the proceso 8000 (Process 8000) only few Members of Congress were prosecuted while in the parapolítica (parapolitics) scandal 102 were investigated between 2006 and 2010 making Uribe’s second term a much contentious term in office. Three key observations conclude that chapter: the continuous production of legal facts – “facts” resultant from judicial processes – is what set the parapolítica apart from the proceso 8000, which showed, not least, in the extensive response that Uribe and his administration orchestrated against the Supreme Court and its individual judges. Furthermore, the continued production of legal facts was to a decisive part the result of an agreement between the Supreme and Constitutional Court in tutela decision implicating the role, privileges and duties of legislators. Finally, the trajectory of jurisprudential development in the question of the tutela and the tutela contra sentencias does not become more intelligible with a classical understanding of path dependence. The shifts and differing outcomes were the result from endogenous changes that occurred within the institutions.  The contrasting of the choque de trenes with an ideal type reading of path dependence reinforces the call by some historical institutionalists to better incorporate agency into their reading. As March and Olsen remind us, actors re-interpret institutional ideals in a given context so that change evolves within institutions from “both intra- and inter-institutional dynamics and sources” (March & Olsen, p. 12). Here it is the interpretation of norms and how they apply to criminal processes that have political significance. Thelen and Mahoney, too, call attention to the incremental changes that occur as a consequence of actors debating compliance with institutional imperatives (2010, p. 10-11). The indeterminacy of behavior in the choque de trenes and the tutela contra sentencias appeals to the notion that change evolves from argumentation itself. In the end, it was simply not argumentatively feasible to defend parliamentary immunity as a bulwark for free deliberation, when Members of Congress utilized the norm for impunity. Knight and Epstein exclaimed that new research ought to look at the argumentation of judicial decisions to understand what drives judges in their reasoning (2013). I follow this call not only in the analysis of the choque de trenes, but take the cue  27 and investigate the practice of coming to legal decisions – the deliberation inside the court – as an important variable. The last substantive chapter will turn to the re-election decisions. The separation of powers model of judicial behavior borrows the modulation of agency adopted in rational choice models and presumes a utility maximizing and forward-looking judge. The strength of these models is their precise conceptualization of the interaction between behaviour and institutions that are amenable to generalization, theory building, and falsification. The weakness lies in the image of human nature that misses important facets of human motivation (Hall & Taylor, p. 950). The fourth chapter of this dissertation will explicitly deal with the re-election reforms and embed the analysis 1) in the tensions between majoritarian and constitutionalist ideals of democracy, and 2) in the contrasting understanding of the constitutional judge as a strategic actor and a discursive actor. The first tension contributes to the importance of this analysis and the second signals its contribution. In other words, the decision to disallow further re-elections is particularly surprising in face of Uribe’s popularity/power while the creation of the doctrine at the centre of said decision is illustrative, because it followed a discursive and not a strategic logic.  We already saw that the substitution doctrine was the critical doctrine to disallow a third presidential term. The substitution doctrine essentially is a dogmatic expression of the proportionality principle in constitutional adjudication. It submits constitutional reforms to a test that inquires whether the new norms contradict the original norms to the degree that it substitutes them and not simply reforms them. The critical step in this test requires the judge to establish axiomatic principles in the constitution and the relation of the reform to those principles. Here, the judge exercises a form of public reasoning that weighs between positions. The analysis will explain these essential steps in much more detail. At this point it is important to note that this evident expansion of judicial authority cannot be explained with reference to a strategizing judge, who has fixed preferences. Investigations of Colombia’s Constitutional Court have argued that it builds its jurisprudence prudently by acting carefully in politically important cases. Here, the most essential steps were taken in cases of immense political importance.   28 Thus, contrary to the imperatives of rational choice theory, I found that the careful management of deliberation inside the court helps to explain the outcome and not strategy. The insistence of the majority in 2010 to apply the substitution test was justified with the imperative to properly follow the procedures of constitutional adjudication. These procedures – involving formal and informal rules of conduct – have three basic goals: (1) prevent a rationally unmotivated termination of argumentation, (2) secure both freedom in the choice of topics and inclusion of the best information and reasons through universal and equal access to, as well as equal and symmetrical participation in, argumentation, and (3) exclude every kind of coercion—whether originating outside the process of reaching understanding or within it – other than that of the better argument, so that all motives except that of the cooperative search for truth are neutralized (Alexy, 1979). By preventing coercion – in all its forms – to affect legal debates inside the court, magistrates protect their duty to contest the acts of public authorities and test their reasonability.   Institutions, Douglas North argues, are the “humanly constructed constraints that shape human interaction”. They are at the root of historical change by devising the incentive structure in human exchange, be it “political, social or economic” (1990, p.3). O’Donnell defines institutions as “regularized patterns of interaction that are known, practiced, and regularly accepted (if not necessarily normatively approved) by given social agents” (1994, p. 5). In the processes assessed in this dissertation we will come across institutional frameworks that do not simply function as the rules of the games that structure the expectations of strategic actors. Neither are they cultural norms that discipline actors into subjection. Rather, we will see that institutions are discursive structures, in which actors negotiate the meaning and significance of norms – rules in other words – with reference to a constitutional text and the intention of the constituents that drafted the charter in the first place. The text as basis for negotiation ensured at critical moments that the negotiating process is not simply an expression of the “survival of the fittest” that benefits the actor with the most profound resources. Texts and intention of constituents entail that this process often is an interpretive process that requires actors to make arguments as to how text and intention applies to the given context. This introduces a logic of public reasoning that forces even strategic actors with  29 fixed interests (such as lawyers and prosecution in a court room), who engage in rhetorical action, to convince and persuade an audience with argumentative rationality (Risse, 2002; Habermas, 1996). 1.4. Case selection and data collection   Methodologically, this study faces particular caveats, because of its case study design (highlighting validity issues of causal inferences) and focus on judicial processes (emphasizing data validity issues). Any social science research involves trade-offs regarding its validity and generalizability. Case studies in particular are good in showing some things while very weak in disclosing others. Therefore, we need to be fully aware and self-conscious what this case of Colombia can in fact tell us about (judicial) institutions without making too sweeping generalizations. Case studies can be very useful for closely analyzing the applicability of specific theories in special cases and generating new hypotheses. The data validity issues in this inquiry arises for two reasons: 1) the focus of this dissertation is on judicial institutions and reasoning, 2) dissatisfied with the explanations from the neo institutionalist views, this dissertation looks at the importance of discursive practices to develop explanations for the outcome. Judicial decision-making is particularly challenging to study for social scientists, because, as a general rule, it takes place behind closed doors. Colombia’s high courts, and the Constitutional Court in particular, are no exception to that. On the contrary, one of the specific features of the Colombian Constitutional Court that this dissertation will analyze and include in the explanation of the outcome, is that it went to great length to shield the deliberation from public pressure and influence. Discourse in the Schmidtean framework, however, implies that policy makers communicate between actors, and justify their ideas against a background of overarching philosophies. How then can a discourse that specifically shields itself from being too public be a form of public reasoning? Here I will try to provide satisfactory answers to these methodological admonitions and thereby highlight the value of this analysis for broader social science research.  The value of studying the outcome of the 2010 constitutional decisions derives, first, from the fact that Colombia constitutes a special case within Latin America’s political history that did not make substantial experiences with authoritarian rule, but  30 lived through long periods of internal violence, and a peculiar form of presidentialism, in which the executive enjoys expansive formal powers, but is constrained in its exercise of power by informal clientele networks organizing the distribution of political and material rewards. Secondly, President Uribe is unusual for Colombia’s history, because, armed with personal charisma, he was able to amass great popular support, dominate legislative politics, and discipline a factionalized and decentralized Congress. Thirdly, even though a quick glance at Colombia’s history shows that judicial independence has had precedents in Colombia’s, the 2010 Constitutional Court decision is deserving of explanation, because it ventured into unchartered, legal territory by invalidating a constitutional reform based on the distinction between reforming and replacing a constitution. It was, as explained at the outset, a decision that re-interpreted constitutional norms in a novel way and it did so in a context inauspicious for the growth of judicial power and independence. All of these features provide credible hints that the Colombian case veils new hypotheses for explaining the growth of judicial power that we need to recover to sharpen our understanding of institutional development.   The case study is defined as the “intensive study of a single case for the purpose of understanding a larger class of cases (a population)” (Gerring, 2007, p. 95). Therefore, a properly, and self-consciously, applied case-study method is always involved in the broader context of a universe of cases and does not stand on its own analysis. As McKeown put it, social scientists, even those employing “standard quantitative methods, are ‘interactive processors’ [and intuitively] move back and forth between theory and data” (2004, p. 159). They are folk Bayesians. The case study does exactly that and carefully treads between theory and new data. The first imperative to take away for this inquiry then is to understand the existing literature and theory in order to place the original work in the context of the state of the art. This inquiry therefore begins each chapter with a conceptual discussion on the critical juncture (Chapter 2), path dependence (Chapter 3), and the strategic judge (Chapter 4) to properly place the Colombian case within the literature and eventually be able to explain the contributions of this inquiry. The most important advantage of a case study lies in its capacity to generate new hypotheses that imply causal relationship. A shared observation amongst theorists of social science research is that the “relationships discovered among different elements of a  31 single case have prima facie causal connection” (Gerring, 2007, p. 100; see also McKeown, 2004; Ragin, 2004). This prima facie causal connection helps to explain the advantages of case studies as well as the context traits more amenable to case study approaches. A case study generates new hypotheses rather than testing them, provides internal validity, discloses causal mechanisms (and not effects), and provides a deep scope to the proposed hypotheses (2007, p. 97). The empirical characteristics of cases mean that case studies are better suited for heterogeneous cases, for cases when strong causal relationships are to be expected (since weak causal relationships are particularly opaque), for cases with rare variation, and limited data availability.   The value of the Colombian case then hinges on what makes it special in a universe of cases and what is the specific goal of this dissertation. Rather than test hypotheses from comparative politics, this study envisions to understand the constitutional judge in a novel way: as a discursive actor. To my knowledge, there has not been a discursive explanation for why a court’s authority increases. This dissertation closely looks at the interaction in specifically arranged discursive places, which I hypothesize to have had an impact on the outcome. Colombia belongs into the category of a least likely case to experience the growth of judicial independence. Gerring refers to such a case as a case that “on all dimensions except the dimension of theoretical interest, is predicted not to achieve a certain outcome, and yet does so, [providing] the strongest sort of evidence possible in a non-experimental, single case setting” (2008, p. 659). Critical for the effectiveness of this method are the facts of the case and the predictive capacity of the theory at hand. Colombia under Uribe’s charismatic leadership is a highly unlikely case for judicial independence not solely due to the background conditions of a long history of violence and clientelism, but also because his governance style created a unusual situation for Colombia itself: he was capable of dominating public policies to the degree that a fractioned Congress united in a strong and disciplined coalition, supporting his leadership. Despite these parameters, judicial independence did materialize and the Constitutional Court’s powers grew appreciatively. The close inspection of the development of the substitution doctrine in the fourth chapter will further show that the outcome was not only surprising in a generic sense, but inexplicable for conventional theory. Strategic accounts of the constitutional judge have the advantage of providing  32 testable, or in the Popperian sense, risky predictions (Gerring, 2008, p. 660). In this chapter we will see that the most common predictions of the strategic account that test the conditions for the creation of judicial independence do not hold in this instance. It is thus a very good case to develop new theories and hypotheses. The third chapter begins with begins with the notion that the institutions, from the historical institutionalist perspective, ought to be conducive to path-dependent analysis. I hypothesize, however, that this might be different for judicial institutions, since they involve claims to rights and justice, which carry foundational normative innuendos. To test the application, I disaggregate the Colombian case into two sub-cases with differing outcomes. In short, I engage the most similar research design. The most similar research design can do two things: it can be used as an exploratory or confirmatory tool of analysis (Gerring, 2008, p. 668). Here we use it as a hypothesis testing device and then move to thick analysis to propose that the dynamic of judicial institutions must be placed in the discursive context, in which apparently settled questions remain open to contestation, and change can develop from within the institution. Finally, the second, and thereby first substantive, chapter (after this introduction) investigates the 1991 Constitution in historical perspective. It, too, incorporates the most similar research design and takes three instances of constitutional amendments and replacement that share the basic characteristic that they fundamentally alter the way the political interaction was organized in Colombia. There is of course a legal distinction between constitutional replacement and amendment, in that the former disrupts the validity of the existing charter, while the latter preserves the legality of the existing constitution. As Negretto explains, however, “both modify the constitution by introducing textual changes, and these formal alterations are sometimes comparable in scope and importance” (2014, p. 19). This was indeed the case for the three sub-cases: in each instance, electoral, legislative, executive, and judicial institutions were altered. In addition, even the amendment processes had plebiscitary components and were submitted to popular confirmation in referenda. Yet, the outcome in the 1991 Constitution differed on most of these parameters. Furthermore, these amendments and replacements warrant selection for closer inspection, because they were the only amendments that  33 fundamentally altered judicial institutions (see next two sections on the specific contributions and set up in each chapter).  Thus, the analytical set-up of this dissertation provides us with a narrative that moves from historical comparisons through comparisons of the 20-year-period since the new Constitution’s existence, to a close inspection of processes within the chambers of the Constitutional Court. As seen, each chapter is internally divvied up to provide analytical leverage and increase the study’s value for comparative politics.  From case selection, we can then move to data collection. Data collection for judicial processes and reasoning poses heightened methodological problems, because they are said to be particularly disagreeable to public exposure. The analysis in the fourth chapter will reveal in detail that Colombian constitutional judges deliberately curtailed exposure to the public spotlight. Thus, without active participation in public debates, how can we discern the impact of discourse and ideas on decision-making processes inside the Court? The simple answer to that challenge is to go and ask the participan