1 Defining Judicial Activism: Judicial Activism as the (Im)proper use of Judicial Powers and the Colombian Experience of Judicial Review of Constitutional Amendments1 Vicente F. Benítez-R.∗ Fabio Enrique Pulido-Ortiz† Pablo Rivas-Robledo‡ Abstract: This chapter aims to address the idea of judicial activism from two perspectives, a theoretical and an empirical one. From a theoretical perspective, it seeks to articulate a definition of this phenomenon. To this end, the chapter will ‘clean’ the definitional slate and will argue, first, that an accurate conception of judicial activism should not be equated with concrete manifestations of what is usually thought of as judicial activism. Later, it will claim that judicial activism is better understood as the (im)proper use of judicial powers: judges act beyond the set of powers vested by norms of competence, but just as if they were within them. It will be contended, likewise, that this definition is accurate enough to prevent the existence of false positives and false negatives when identifying instances of judicial activism. Secondly, and from an empirical angle, the chapter will test the performance of this conception using as a case study the Colombian Constitutional Court’s case law on judicial review of constitutional amendments, one of the most activist forms of review in contemporary constitutionalism. This second part also will show that, in the case of the Colombian Constitutional Court when scrutinizing amendments, standard definitions of judicial activism miss the mark as they are prone to produce false positives (i.e., incorrectly labeling certain non-activist decisions as activist judgements) and false negatives (i.e., missing the identification of actual activist decisions). Keywords: judicial review, constitutional amendments, Colombian constitutional court, judges in politics, rule of law 1 This text was enriched by the comments and suggestions of many colleagues. The authors would like to thank Luciano Laise, Andrej Kristan, José Miguel Rueda, Pedro Rivas-Robledo, Natalia Ariza, Camila Osorio, Carolina Benjumea, Alfonso Lozano, Juan Bautista Etcheverry and the research seminar of philosophy of law at Universidad de la Sabana (Fundamentos Filosóficos del Derecho Constitucional). Parts of this work were funded by the Research Projects DER-60-2019 and DER-042-2012, Universidad de La Sabana (Colombia). ∗ Constitutional Law Professor, Universidad de la Sabana. Email: vicente.benitez@unisabana.edu.co † Constitutional Law and Legal Theory Professor, Universidad de la Sabana. Email: fabio.pulido@unisabana.edu.co ‡ Constitutional Law and Research Methods Part-time Lecturer, Universidad de la Sabana. Email: pablo_rivas_robledo@hotmail.com Penultimate draft - To appear in late 2021 2 Introduction Judicial activism is, without doubt, a key problem in contemporary jurisprudence and the practice of law as a whole. Despite the fact that its relevance is almost universally recognized, until now there has been no elaboration of judicial activism as a concept. As we will see, this is in part due to the fact that researchers have been devoted to studying particular manifestations of judicial activism, rather than the concept itself. Furthermore, studies on the matter are normally limited by the legal and political system the author comes from, so their conclusions are equally limited. This ultimately leads them to take for granted that some American examples or manifestations of judicial activism are universal examples of judicial activism just because they would be considered as judicial activism in the U.S.A at some point in time. Surprisingly, most of these examples are just about everyday judicial practice at systems that belong to the Civil Law tradition. For instance, judicial review is almost universally accepted as the prime example of judicial activism from an American point of view. And so, this has led some to conclude that judicial review is a paradigmatic example of judicial activism. Nevertheless, those who write from a different legal perspective (as we do) find this perplexing and disagree with such a statement given that judicial review, in Colombia, has been recognized as a valid exercise of judicial powers for more than 100 years. Thus, it would be wrong to call Colombian judges activists just because they exercise such a review. We, therefore, think there is a conceptual problem in the following sense: there is no definition of judicial activism that can account for its different manifestations on a global scale. In this chapter we want to address this problem from a theoretical and practical point of view: we want to offer a proper definition of judicial activism that encompasses all its possible manifestations and then apply it to particular cases. To that end, we want to switch the priority in the definition by first offering a conceptualization or definition of judicial activism and, then, showing how different manifestations or examples or judicial activism satisfy said definition, whether in Colombia, Argentina or any other legal system with judges. Thus, here we claim that judicial activism can be explained in terms of norms of competence and then we test the soundness of this definition in various landmark cases. Namely, we argue that judicial activism is the judge’s modification of competences by her decisions ((im)proper use of powers) and that this concept allows us to avoid false positives and false negatives when examining two paradigmatic decisions by the Colombian Court. We have divided the chapter in two main sections. The first section aims to provide a notion of judicial activism capable of overcoming the definitional issues that stem from conventional accounts of judicial activism. To reach this goal, this first section is composed of three subsections. In the first subsection, we summarize the main theories of judicial activism and point out how many of them use local manifestations of judicial activism to try to define it. After that, we present the concepts needed to offer our own definition of judicial activism. Namely, norms of competence, constitutive rules, and their relation. In the second subsection we make a case against previous theories of judicial activism. In the third, we contend that the best way to understand judicial activism is as the judge’s modification of his competences through his decisions. We call this the (im)proper use of competences. Thus, presenting activists judges as those who go beyond the valid use of their powers (either by expanding them or by limiting them) but who act as if they were within a valid use of those powers, thus the (im)proper. 3 Finally, in this subsection we will show how the definition proposed here has clear advantages over those discussed previously. There we will explain why understanding activism as the judge’s modification of his competences through his decisions overcomes the critiques formulated against previous definitions and therefore fulfills the desiderata of the definition. The second part constitutes the empirical section of the chapter where we assess the performance of our conceptual proposal. Relying on two decisions by the Colombian Constitutional Court on constitutional amendments, we show that extant approaches to judicial activism are unable to capture actual instances of judicial non-activism and of judicial activism in Colombia. We also find that, in contrast, our conception accurately identifies activist and nonactivist judgements. Some conclusions are offered in the end. I. Defining judicial activism A. Judicial activism, constitutive rules, and norms of competence The purpose of this subsection is to provide a framework for the discussion that is to appear over the next pages. First, we will present the main theories of judicial activism. We will highlight how many of them prioritize manifestations of judicial activism over the concept itself. In the second part we present the concepts necessary to develop our theory of judicial activism. We explain the concept of norms of competence and Eugenio Bulygin’s theory of norms of competence as constitutive rules. 1. Judicial activism from Schlesinger to Zarbiyev More than 70 years ago, Arthur Schlesinger coined the term judicial activism for the first time. In 1947 he used the term in a somewhat derogatory fashion to talk about judges who, in their judgements, went beyond the self-restraint that is expected from them (Schlesinger, 1947, pp. 73– 74, 201–204). And this original sense may have contributed to the fact that even today in legal practice judicial activism tends to be associated with judges that go beyond their roles or usurp the roles of other bodies.2 In addition, Schlesinger was the first to notice the close relationship that exists between judicial activism, decision-making, and politics (Schlesinger, 1947, p. 78). With this he did not only mean that every decision by judges has political motivations or political consequences. He also thought that courts with a higher hierarchy have a far greater political power than any other courts and this, in turn, makes higher courts (such as the U.S. Supreme Court) to drift away from the selfrestraint that is expected from them (Schlesinger, 1947, pp. 78, 202). Schlesinger’s work has been very influential. It basically gave birth to a whole wave of scholarship on the subject that quotes his original piece extensively. Normally, studies on judicial activism can be divided into two categories. The first one comprises works that presuppose the concept of judicial activism and focus on judicial activism’s impact and justification, disregarding 2 Even in more recent scholarship it is possible to find vestiges of Schelesinger’s proto-definition: see (Kmiec, 2004; Pulido Ortiz, 2019; Saffon & García-Villegas, 2011; Terpan & Saurugger, 2018; Waltman, 2015) Kmiec (2004), Pulido-Ortiz (2019), Saffon & García Villegas (2011), Terpan & Saurugger (2018), Waltmann (2015) y Zarbiyev (2012). 4 any theoretical consideration. For some scholars, this impact is positive for it promotes social rights and strives towards morally acceptable results (Gómez Pinto, 2012; Landau, 2010; Lozada, 2018; Rodríguez, 2005; Saffon & García-Villegas, 2011; Smith, 2015; Terpan & Saurugger, 2018). Some others, on their part, think that this impact is negative for it affects institutions and, more generally, the rule of law (Escobar Torres et al., 2013; Pulido Ortiz, 2019; Stone, 2011; Waltman, 2015). A second category includes works that list certain activities that are paradigmatic examples of the activism of courts, that is, manifestations of judicial activism (Canon, 1983; Harwood, 1992; Itoh, 1990, 1991; Kmiec, 2004; Maraniello, 2012; Schubert, 1965; Zarbiyev, 2012). For example, for Kmiec the following manifestations are expressions of judicial activism: (1) striking down constitutional actions of other branches, (2) ignoring precedent, (3) crafting judicial legislation, (4) departing from the accepted interpretive methodology, and (5) injecting moral result-oriented contents to judicial outcomes (Kmiec, 2004, p. 1444). According to Harwood, typical manifestations of judicial activism occur when the judge (1) refuses to take an attitude of judicial deference for legislative or executive, (2) relaxes requirements for justiciability, (3) breaks precedent; and (4) loosely or controversially construes the law, contained in either constitutions, statutes or precedent (Harwood, 1992, pp. 2, cited in Zarbiyev, 2012, pp. 249–250). Lastly, it is important to talk about Canon’s theory which is not widely read today, but that inspired contemporary accounts that understand judicial activism through the lens of its manifestations (Kmiec, 2004; Marshall, 2002; Young, 2010). For Canon, judicial activism has six dimensions or degrees. The more salient these dimensions are in a court’s judgements, the more activist it is. The dimensions are (1) the degree in which judgements strike down or make void public policy adopted by democratic bodies, normally via judicial review; (2) the degree in which judgements modify precedent, legal doctrine or interpretations of the law; (3) the degree in which judgements interpret dispositions against their ordinary meaning; (4) the degree in which judgements introduce public policy that distort democracy; (5) the degree in which judgements establish how to implement public policy, usurping the role of state agencies; and (6)the degree in which judgements replace arguably constitutional decisions and actions by other branches (Canon, 1983). Nevertheless, Canon’s most interesting contribution is that he proposes that there are two practices that, if followed, lead to judicial activism. These are the creation, modification or elimination of public policy, and the improper use of judicial powers (Canon, 1983, pp. 238–239). As we will examine later, this last point is particularly useful to develop a definition of judicial activism because it separates judicial activism from some indigenous manifestations of activism and mentions the powers that judges have within legal frameworks. Despite these undeniable contributions, an analysis of the theories inspired by Canon reveals that they are limited, geographically speaking. Canon, who was an American, treats these dimensions in a derogatory manner. Those who followed him saw in these dimensions some negative aspects of the American legal system and from them proposed a concept of judicial activism based solely on the manifestations of it in the U.S.A. On the other hand, and even in the light of the constant complaint that there is no uniform definition of judicial activism, it is surprising that there has been little to no scholarship that do 5 not contain or develop a definition of it.3 Where we do find definitions is ins texts as Black’s Law Dictionary (BLD) and the Panhispanic dictionary of legal Spanish (Diccionario Panhispánico del español jurídico, DPEJ). The former claims that judicial activism is “[a] philosophy of judicial decisionmaking whereby judges allow their personal views about public policy, among other factors, to guide their decisions, with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent” (“Judicial Activism,” 1999). The DPEJ holds that judicial activism is a “particularly creative position of judges and courts, by which they interpret available sources of law or they cover legal lacunae” (“Activismo Judicial,” 2017). Both definitions reduce activism to some manifestations: BLD cites two, while the DPEJ cites other two. As we can see, many of the theories presented here only point to some manifestations of judicial activism, and always do it with a sense of resentment, because they are not supposed to act in this or that way that is considered activist. Therefore, there is a common feature in all the theories that has been overlooked: they depend precisely on a proper understanding of judicial powers. And so, to understand what judicial activism is, we need to first understand what is for a judge to have the power to do something. That is why before we can discuss and criticize the theories of judicial activism referred so far it is necessary to introduce the concept of norms of competence, that is, the norms that establish the extent of the powers that authorities have in a legal system. 2. Constitutive rules and norms of competence: Searle and Bulygin4 As Schlesinger first noticed, the concept of judicial activism is linked to what judges are supposed to do. To make this explicit, it is beneficial to understand this in terms of norms of competence. The thesis that we want to defend here is precisely that what defines judicial activism is the fact that judges rewire the norms of competence that define the powers of judicial bodies through their own acts. To this end, we first present the notion of competence and norm of competence, and in a different subsection we will explain how judicial activism as the judge’s modification of competences by her decisions.5 The debate over the nature of norms of competence is an ongoing discussion. Nonetheless, nowadays it is possible to say that there is some consensus on some general issues. In particular, on how we can use the concept of constitutive rules to explain the nature of norms of competence, a theory championed by Bulygin (1992) and followed by others (Alexy, 1986; Ferrer Beltrán, 2000; Spaak, 2003, 2009; Villa Rosas, 2018). Norms of competence are those that establish what powers individuals and legal bodies are entitled to exercise in a given legal system. For example, presidential regimes normally have a 3 There is a small group of works that, even if they are not trying to provide a definition of activism, they propose terms or variables that can be used to define it. In this sense, La Torre (2015) holds that a definition of judicial activism can be offered from the concepts of Constitution, reasoning and Law; de Almeida Ribeiro (2015) prefers powers (in the sense of separation of powers) and adjudication. 4 Here rule and norm are not synonyms. For the purpose of this chapter, norms are legal dispositions, rules are dispositions that regulate agent’s behaviour, whether legal or not. 5 As far as we know, there are no previous attempts to define judicial activism from the concept of norms of competence. Villalobos (2015) is probably the only one that has noticed the relation that there is between judicial activism and judicial powers, but he does not elaborate. 6 norm that establishes which are the actions that the president is entitled to do as an official; for instance, appointing ministers. In this sense, we understand that the president has the competence –the power– to appoint ministers. The role that norms of competence play in legal systems is crucial, as they allow institutions and all other participants to know what actions are permissible for them in a particular legal system. In other words, the president’s norm of competence or the norms of competence of a ministry endow these offices with certain powers or the competence to act in a certain way. With judges and courts something similar happens. Take, for example, these three dispositions of the legal system C: ● Judges of the criminal jurisdiction may decide over all the matters brought by district attorneys. ● The Constitutional Court has to decide over claims of unconstitutionality against constitutional amendments. ● The Court will choose its own Chief Justice. The way these norms are written may confuse us. It seems like the first says that criminal judges may decide over some matters, that the Constitutional Court has to decide over other issues, and that the Chief Justice of the Court will be appointed by the Court’s members. Despite these differences, these three norms provide that said courts or judges have the power to bring upon certain acts. Thus, they are not requiring or permitting any conduct, but rather establishing the limits of what these judges are entitled to do (Bulygin, 1992, secs. 3–6). To explain norms of competence in this fashion, Bulygin and those who follow him have used the concept of constitutive rule, developed in John Searle’s work. In social ontology it is common to draw a distinction between two types of rules, regulative and constitutive. Searle has used this distinction through his opus continuously with a myriad of different purposes, including how social institutions such as Law, money and government are created and maintained thanks to human collective actions. According to Searle, most institutions are systems of constitutive rules, and they have the following structure: ‘X counts as Y in C’ (Searle, 1969, 1995, 2010, 2018). For instance, ‘moving the king one block to the right (X) counts as a valid movement for the king (Y) in chess (C)'. Thus, the set of constitutive rules that states what counts as what in chess constitutes the totality of chess. This allows us to shape, and tell institutions and sets of rules from one another (for example, chess from sudoku). And this is precisely what Bulygin would later apply to norms of competence. More on that in a minute These rules are definitional in that they do not demand any behaviour from the recipients of the rules, contrary to what regulative rules do (Placani, 2017, p. 60; Searle, 2010, pp. 9–10, 2018, p. 52). What constitutive rules do is to take facts and assign them an institutional interpretation that otherwise it would not have. It is because of this that it is claimed that in the absence of a constitutive rule, the action that it is constituted would not exist: there would be no thing as the king’s movement in chess if there wasn’t a constitutive rule that defines how the thing is to be moved (Searle, 2010, p. 10, 2018, p. 53). According to those who consider norms of competence as a kind of constitutive rules, norms of competence have the same structure (‘X counts as Y in C’), such that we need to interpret them as X being the action an official must do to bring about Y in C. In terms that will be more familiar, the norm of competence according to which the president can appoint ministers can be restated as ‘the appointment of someone as the head of an administrative sector by the president 7 (X) counts as the appointment of a minister (Y) in Colombia (C)’, and it is, therefore, conferring the president the power to appoint ministers. The very same analysis can be carried out with the examples provided earlier: cases brought up by district attorneys count as matters to be decided by criminal judges in C, and so on. We will follow this proposal in the next subsections to advance our notion of judicial activism. B. Against previous theories In the previous section we elaborated on the main theories of judicial activism and how they, in one way or another, gave priority to its manifestations over the definition of the concept itself. In this section we will present some critiques against said theories. For clarity’s sake, we will divide the theories into three categories or families: (1) Schlesinger’s original theory, (2) Canon and its followers6 and (3) the definitions by the BLD and the DPEJ. Theories such as Canon’s (and those of scholars who follow him) are posited from an American perspective more often than not, and frequently make use of American examples to build their concept. And even if they do not write from the U.S., this methodology is replicated elsewhere, just by changing the examples. Hence, these accounts are limited by the legal systems they write from. Briefly stated, they mix judicial activism with the manifestations that it can have across systems. This hinders any possible conceptualization of judicial activism as it only points out some limited examples of judicial activism for a system at a given point in time. Perhaps the most ironical case of this problem can be found in the book Judicial Activism in Comparative Perspective, edited by Kenneth Holland. In the introduction, the editor claims that judicial activism occurs when the judge creates public policy (Holland, 1991, p. 1). Nevertheless, this book collects other accounts of judicial activism from places other than the U.S.A., and it is notorious that in several of these countries to create public policy is not considered as judicial activism. For example, in Jacobson’s contribution, it is claimed that there is judicial activism when the judge takes a pedagogical role with both parties of a legal dispute (as it happens in Israel (Jacobsohn, 1991)). And even conceding for the sake of discussion that judicial activism entails the creation of public policy, in places like Colombia that is hardly the case. Colombian judges have the power to create, modify or even eliminate policies when solving issues in which social rights are at stake (Gómez Pinto, 2012). Consequently, if judges in Colombia are endowed with the power to create, modify or eliminate public policy, are they really activist judges? It is safe to answer this question in the negative. A positive response, otherwise, would bring about a false positive—namely, categorizing non-activist decisions as activist ones. One consequence of all of this is that it is not possible to define activism just from some examples from the American legal system or from some current examples of judicial activism. This definition would be pointless, as legal systems constantly change and even disappear, and thereby, what can be considered activism at one point in time may not be regarded as so in a short time. This list would not be a definition of judicial activism, but merely an enumeration of what is considered judicial activism as of today. Therefore, we need a definition of activism that can comprise all or at least most of the manifestations at a global level, at any point in time. 6 Here we can include the following works: (Cross & Lindquist, 2007; Escobar Torres et al., 2013; Itoh, 1990, 1991; Maraniello, 2012; Marshall, 2002; Saffon & García-Villegas, 2011; Smith, 2015; Young, 2010) 8 On the other hand, the definitions by the BLD and the DPEJ also lead to false positives. Let’s imagine a very conservative judge that pronounces a judgement that agrees with her moral principles but also with applicable law. This would be activist according to the BLD, because the judgement reflects the judge’s personal opinion, but it is not against the law. For the DPEJ a judge that uses the analogy to fill a lacuna would be an activist judge, even when analogy is normally permitted across legal systems (except in criminal law). Is to fill lacunae really activist? Precisely because the analogy is even considered as a source of law, we are inclined to say no. C. What is judicial activism? As can be seen, no argument was formulated against Schlesinger’s theory, and this is because here we will try to explain what it means to go beyond judges’ expected self-restraint and thus explain what judicial activism is. We hold that this self-restraint not only implies to do things outside judges’ own norms of competence, but actually to perform these and make it as if they were legally conferred powers. Let us then change the priority in the explanation: let us first propose a concept and then see what are its manifestations. Consequently, we want to propose that judicial activism is the judge’s modification of competences by her decision. Thus, the activist judge is the one who goes beyond the exercise of her competences, extending or reducing them, but acts as if she was within the scope of the powers defined in the rule of competence, i.e., she issues orders as if she could do in these cases. For the moment, let us look at a case on how a court can become activist. For example, Siri and Kot are two cases labeled as activist judgements by Argentinian scholarship (Laise, 2020, pp. 163–164; Maraniello, 2012, p. 55; Racimo, 2015, pp. 136–137). And in the light of this definition, they indeed are. In these cases, the Argentinian Supreme Court established that the habeas corpus now could be filed against violations to any constitutional right, despite the fact that the Constitution was clear that it could only be filed against violations to the right of personal freedom (Samuel, Kot S.R.L, 1958; Siri, Ángel, 1957). Even when the Supreme Court had no bearing whatsoever in deciding over an habeas corpus unless it had even appealed twice. Judicial activism? Of course, the Supreme Court not only decided over an habeas corpus despite it had not been appealed, it also changed the way it worked, which was probably something worthy of a constitutional amendment. Here, the Supreme Court was acting precisely as if it could decide over these cases despite the fact that (1) it had no jurisdiction and (2) could not change the Constitution. Judicial activism, therefore, consists of issuing an order on which the court does not have jurisdiction and of making it pass as if the court had the power to do so. To better understand this, remember that the norms that confer legal powers to courts have the structure “X counts as Y in C” where X is a fact and Y is its interpretation. Consequently, when a judge passes down an activist decision it is taking another fact, Z, which is not accepted as valid use of powers and making it look as Y. In the previous example, Z is either deciding over non-appealed habeas corpus or changing the nature of the habeas corpus. Therefore, we are starting from a count as (the norm of competence) and moving to an as if (the activist decision itself). Activist judges are those who make invalid uses of power look as if they were otherwise. To facilitate the discussion in what follows, we have shortened our definition of judicial activism as the (im)proper use of competences. It is a recognition that judges went beyond the scope of their authority, notwithstanding their declarations otherwise. 9 Of course, the way in which judicial activism manifests varies not only from country to country, but also from court to court (according to their jurisdiction and the definition of their powers). Consequently, it is important to underscore that although we can provide a definition of judicial activism, its manifestations change depending on the country the court in question operates in, and on the period of time when it renders its decision. In a few words, activism is, in geographical and chronological terms, context-dependent. In those situations where there are judges it is reasonable to think that there also will be rules of competence. In these scenarios, we can discern whether a particular decision is activist by looking at judges’s norms of competence and by judging if the decision went beyond these norms. Therefore, definitions of activism such as Kmiec's or Harwood's (who list a series of behaviours that they conceive of as activism) can be accepted as long as we keep in mind that their breadth is limited: these are just examples of activism from the US at a particular point in time. This notion of judicial activism overcomes the critiques raised against the two types of theories examined earlier. Regarding the first type of theory, by interpreting judicial activism as a concept and not as the sum of its manifestations in the American legal system, we avoid the criticism that we cannot generalize the concept of judicial activism just from local manifestations of it. As for the second kind of theory, it does not suffer from the problems that undermine the BLD’s and DPEJ’s definitions (existence of false positives and false negatives). More specifically, a conservative judge whose decisions follow the rule of law is not activist and a judge that fills lacunae is not activist either, provided that she has the competence to do so. In the next section, we will further explore how our conception successfully prevents the existence of false positives and false negatives in the Colombian context. II. Judicial activism in the Colombian Constitutional Court This second section will test the previous conceptual considerations using, as case studies, two decisions rendered by the Colombian Constitutional Court after reviewing the constitutionality of momentous amendments. The main contention we will advance in this section is that that extant approaches to judicial activism are not accurate enough to capture real instances of judicial activism because they are prone to, both, yield false positives (i.e., incorrectly labeling certain non-activist decisions as activist judgements) and false negatives (i.e., missing the identification of actual activist decisions). At the same time, we will show that, in contrast, an understanding of judicial activism associated with whether the court in question has (im)properly made use of its powers by modifying its own competences, overcomes these problems of inaccuracy that riddle some to the traditional accounts. Before delving into the analysis of specific decisions, it is appropriate to say a few words about case selection. The two cases we picked to conduct our examination dealt with two consequential amendments. These amendments were not only heavily endorsed by the presidential office (arguably the most powerful office of government) and its congressional coalition, but they also significantly restricted key fundamental rights and enlarged the orbit of influence granted to the President by the Constitution of 1991. In addition to their political relevance, these two cases on amendments clearly illustrate how, if we follow traditional approaches advanced in the literature 10 that embrace an American-oriented perspective, we can very well miss the mark when determining whether a particular ruling was, indeed, activist. To accomplish these ends, we will address, first, a case that under a conventional approach, would be erroneously categorized as a manifestation of judicial activism. Afterwards, we will study a second Constitutional Court’s decision that, prima facie, does not constitute judicial activism but that, upon closer inspection, is an activist judgement. A. Decision on the ‘Anti-Terrorist’ Amendment (Sentencia C816/2004): A False Positive7 Álvaro Uribe was elected as president in 2002 in the midst of a severe public-order crisis triggered by the presence of far-right and far-left armed groups across the country and the correlative weakness of the government in many regions. From day one, Uribe made clear that the main political goal of his administration would be the military destruction of guerilla groups and, most prominently, of the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, FARC) (Gamboa, 2017, pp. 459, 463; Mayka, 2016, p. 139). According to Uribe, it was necessary to amend the Constitution to accomplish that end. His government proposed an amendment bill that, among others, dramatically restricted some fundamental rights like the right to hold private communications and loosened some of constitutional guarantees of individuals under criminal prosecution. Namely, the amendment proposal authorized the interception of private communications, police raids in private domiciles, and arrests of suspected criminals without a judicial warrant (Acto Legislativo 2, 2003, arts. 1 and 3). Despite the outcry such a proposal provoked, his legislative coalition passed the amendment in late 2003. This amendment’s constitutionality was challenged before the Constitutional Court. The petitioners advanced two different arguments. Number one, and from a substantive perspective, they argued that the amendment implied a replacement of the Constitution as it destroyed essential constitutional principles that, in turn, shaped the identity of the 1991 Constitution. Second, and from a procedural standpoint, the claimants maintained that a majority of members of one of the committees of Congress had rejected the amendment bill, but the chairman of the committee dismissed such a vote and adjourned until next day when, finally, the amendment was passed by the required majority. As a consequence, the plaintiffs asserted that there had been a procedural irregularity that breached the Constitution (Sentencia C-816, 2004). In Decision C-816/2004, the Constitutional Court struck the amendment down based on the procedural allegation. For the Court, the strategic postponement of the discussion amounted to a manipulation of the will of the committee’s members who, when the deliberation was being held, were ready to shelve the amendment bill. Since the will of Congress was manipulated and the bill did not reach the required absolute majority for its adoption, the Court held that the amendment was not passed in conformity with the Constitution. Although the Court could have given the opportunity to Congress to rectify this procedural mistake by holding another vote, it observed that the irregularity was so important that this was not an option. Once the amendment was quashed, the Court decided not to tackle the substantive allegation brought by the claimants (Sentencia C-816, 2004, paras. 8–12). 7 Sentencia, in Spanish, means Judgement, Decision or Ruling. 11 Now, if we read this judgement through the prism of Kmiec’s, Hardwood’s and Canon’s manifestations of judicial activism or the BLD’s and DPEJ’s definitions of activism, it is somewhat clear that this would be an activist decision. For a start, the Court invalidated a constitutional amendment, that is, a constitutional rule supported by an important number of congress members and, probably, the people at large. This was the first time, after the enactment of the 1991 Constitution, that an entire amendment was nullified. By the same token, the Court imposed its political-moral views on how constitutional amendments ought to be approved by Congress and, thus, showed no deference to the elected branches. As a matter of fact, one congressman declared that the Court’s decision-making in this case had been guided by political, not legal, criteria (Redacción El Tiempo, 2004a). In some sense, the message sent by the Court was that modifying the Constitution, even if it was motivated by such an important objective such as public-order maintenance, was a rule-oriented enterprise that should follow all the procedural steps enshrined in the constitutional text. Nevertheless, this was not, by any means, an activist decision. As a descriptive matter, no single Colombian scholar nor political actor at the time (except for the one peculiar congress member already mentioned) regarded this decision as an activist exercise of judicial power. As for the former, in Colombian legal academia judicial review of amendments on procedural grounds was a settled discussion (Cepeda Espinosa & Landau, 2017, pp. 327–328; Quinche Ramírez, 2009, p. 581). The constitutional text made very clear that the Court had the power to assess the constitutional soundness of amendments from a procedural vantagepoint (Constitución Política de Colombia, 1991, arts. 241.1, 241.2 and 379). No scholar saw this decision as an improper use of judicial power. Of course, there were some disagreements about whether the alleged manipulation had, indeed, occurred, but no one suggested that the Court had gone beyond the boundaries of its power. Procedural review of amendments was a common feature of the Colombian constitutional landscape since 1978, and striking down a constitutional change, in and of itself, was not viewed as something akin to the Court imposing its views on congressional majorities or a lack of judicial deference) (Sentencia del 5 de mayo de 1978, 1978). This might come as a baffling assertion to, say, an American audience—an unconstitutional amendment is something unconceivable; it’s a political question beyond the province of the judiciary (Coleman v. Miller, 1939). However, this is precisely the point we are trying to make: American-oriented determinations of activism based on its purported manifestations do not work well in other realities. Now, regarding the political reactions, no consequential political player opined that the decision was activist. It is true that they disagreed with the decision, and asked the Court to reconsider its verdict, but never indicated that an amendment being invalidated due to procedural reasons represented judicial activism. For example, although President Uribe expressed some preoccupations about the future of his security-laden agenda, he ultimately abided by the decision (Redacción El Tiempo, 2004a). Some members of his legislative coalition, on their part, acknowledged that the ruling was a valid exercise of judicial review of amendments, and announced they were planning to work hard to pass, according to the procedural rules, another amendment to tackle the rising spiral of violence in the country (Redacción El Tiempo, 2004b). Why was this decision widely regarded as non-activist? The main factor doing the work behind all these reactions is the notion of (im)proper use of competence. The procedural scrutiny of amendments and a potential decision voiding them, is an appropriate use of the Colombian Constitutional Court’s powers. It was consistent not only with the precedent of the Court but, more importantly, with the rules of competence laid out in the Constitution. On the contrary, the 12 decision that comes next evinces how the examination of improper use of judicial powers opens a promising path for a better comprehension of judicial activism. B. The First ‘Fast Track’ Peace Amendment (Sentencia C699/2016): A False Negative Uribe’s military approach radically changed under the administration of his successor in the presidential office, Juan Manuel Santos. Santos initiated a series of peace talks with FARC that led to a far-reaching peace agreement (the Pact) signed between the parties in September 2016. However, the legal implementation of some of the Pact’s contents required the adoption of some constitutional amendments. To secure a smooth and quick implementation, Santos proposed and Congress passed a constitutional amendment that reduced the procedural strictures established in the Constitution’s amendment clauses to modify the Constitution (Durán Smela & Cruz Gutiérrez, 2021, pp. 14–18). To be specific, this amendment –known as the ‘Fast Track’ amendment (hereinafter, FT)– lowered the number of hearings or readings required to modify the Constitution and prohibited congress members' from altering the content of the bills introduced by the government unless the government itself greenlighted such proposals (Acto Legislativo 1, 2016). The rationale of FT was that the implementation of the peace pact through amendments required a faster amendment track than the one required for any other kind of constitutional modifications. Now, since the amendment reduced the constitutional rigidity to amend the Constitution, the government feared that the Constitutional Court might very well quash FT. In 2003 the Court created a doctrine (known as the replacement doctrine) according to which a congressional amendment that destroys essential aspects of tenets of the Constitution, is tantamount to a constitutional replacement. Such an amendment, for the Court, would be ultra vires because Congress does not have the power to replace the Constitution (just the people themselves can do it) (Roznai, 2017, pp. 65–67; Sentencia C-551/03, 2003). To reduce this risk and to invite the Court to deploy a gentler scrutiny, the government organized a plebiscite, asked the people to vote for or against the peace accord, and introduced a provision in FT saying that this abbreviated amendment procedure could be activated only if there was a ‘popular endorsement’. The people’s support for the agreement would make the Court think twice before nullifying FT (GonzálezJácome, 2016). In October 2016, a slim majority of voters rejected the peace agreement (Cobb & Casey, 2016). Hence, one of the main questions in the air was whether FT could be activated. Santos pointed out that the popular endorsement to activate FT could be supplied by Congress as the institution that represents the people’s will (Casey, 2016). His opponents, led by former President Uribe, stated that this was a constitutional mockery and that a second popular vote was required given that the Constitution’s amendment requirements had been considerably lowered. This issue was brought before the Constitutional Court. More specifically, the Court had to determine whether ‘popular endorsement’ could also be understood as a Congressional endorsement so as to trigger FT, and whether lowering the amendment’s procedures passed constitutional muster. In this context, the Court issued the Sentencia C-699/2016 and upheld the amendment. The Court held that FT did not destroy the rigid nature of the Constitution. Colombia was going through a transitional process towards peace and this end justified relaxing some of the procedural steps to amend the Constitution. With respect to FT’s activation, the Court deferred this issue to 13 the legislature—Congress had the duty to decide whether its endorsement was enough to trigger FT. Nonetheless, the Court ruled that if Congress were to endorse the pact, this endorsement should be the product of a democratic process with ample popular participation and with enough spaces of deliberation (Sentencia C-699/16, 2016). At first glance, this would not count as an activist decision. To begin with, the Court was certainly deferential to the elected branches. Besides the fact that the amendment was upheld thanks to the application of a more lenient scrutiny, the court was not an obstacle in the road for the implementation of a public policy (the peace agreement) backed by the elected branch. The President and Congress made a decision with a clear moral-political orientation and the Court did not interfere with it. This is what the standard view of judicial activism that we have questioned would say about this case. But, once again, this appreciation is inexact. Equating decisions striking down legislation (or, in this event, amendments) to judicial activism is not right. Courts can be tremendously activist institutions even when upholding governmental decisions. And Decision C-699/2016 is a case in point. Let us begin by noting that the Court made an improper use of its competence. Even though the very same Court in 2003 created for itself the new power to assess the substantive validity of constitutional amendments and consistently applied it in a strict fashion in several cases, it strategically abandoned such a rigorous stance in this judgement (Cajas-Sarria, 2017, p. 272; GarciaJaramillo & Currea-Moncada, 2020, pp. 17–21). As a result, the Court did not expand its powers. Quite the opposite: it limited its own jurisdiction. Thus, the Court, in this case, basically established an exception to the standard it had used, up until that point, to examine an amendment—from that moment onwards, amendments aimed at attaining the goal of a transition to peace should be reviewed more softly to facilitate reconciliation between warring groups. As two of us have argued elsewhere, this justification was relatively weak, at least in light of the competences granted to the Court by the Constitution (Pulido-Ortíz, 2017; Pulido-Ortiz & Rivas-Robledo, 2017). There were some other equally important areas (such as amendments to the judiciary) where the Court carried out a particularly strict vigilance.8 This legal perspective is echoed by many political figures that reacted to the judgement at that time. First, the political opposition expressed that, with this decision, the Court had relinquished its constitutional duty to protect the Constitution against amendments that enlarged the presidential power’s influence on the amendment power (“Las Seis Críticas Del Uribismo al Fallo Del Fast Track,” 2016). Apparently, the need for peace prevailed over any consideration linked to the enhanced powers of the President in FT. Secondly, even sympathizers of the peace agreement (most notably the government) would eventually and indirectly criticize some of the contents of this decision, particularly the deliberative, democratic and participatory principles that, in the Court’s interpretation, should inform the FT’s popular endorsement. The Sentencia C-699/2016 laid the groundwork for a subsequent ruling (Sentencia C-332/2017) in which the Court limited the presidential prerogatives in the FT amendment process. In this second ruling, the Court found that the way in which the peace negotiations took place and how FT had been used to pass peace amendments, were far from being deliberative, democratic and participatory. Therefore, it struck down, among others, the prohibition for Congress to autonomously (i.e., without governmental authorization) introduce 8 See (Sentencia C-285/16, 2016; Sentencia C-373/16, 2016). 14 modifications to the amendment bills tabled by the government (Sentencia C-332/17, 2017). The government’s reaction was somewhat harsh—a governmental peace negotiator suggested that the Court could have misused its powers (Peña, 2017). Likewise, one of the judges of the Court – known for his unwavering support to the Pact– filed a dissenting opinion and claimed that the Court’s enforcement of the principles set forth in Decision C-699/2016 (deliberation, democracy and participation) was the exemplar of an activist decision (Dissenting vote of Justice Antonio Lizarazo to Sentencia C-322/2017, 2017). The gist of all of this is that Decision C-699/2016 was an activist decision because of how the Court deployed its powers (rather than whether the judgement did fit into one of the manifestations of judicial activism put forward by some scholars and dictionaries). In the political opposition’s eyes, the Court gave up its mission to protect constitutional supremacy by applying a deferential scrutiny to FT. In those of the government and of a member of the Court, establishing a set of principles that should permeate the whole implementation of the Pact and that would be later enforced in another decision, went beyond the scope of the Constitutional Court’s powers. Despite first-impression perceptions that would signal the absence of activism, these two reasons explain why this ruling was regarded as an activist by many consequential actors. Conclusions The main motivation behind this chapter was to refine our grasp on judicial activism. After surveying the most popular approaches to this phenomenon, a key conceptual finding of our research was that they are inaccurate because they can produce false positives and false negatives. Hence, we proposed a revamped notion of judicial activism that could overcome these issues. Judicial activism is better understood as the (im)proper use, in judicial decisions, of the powers vested on a court. One direct consequence of understanding judicial activism thusly is the fact that judicial decisions are not valid. However, the fact that judicial rulings from lower judges tend to be overruled while judicial decisions from higher courts not only become precedent but also landmark cases, speaks volumes about the political power of the latter. To test the practical implications of this conceptual conclusion, we conducted an analysis of two prominent decisions rendered by one of the most activist courts in the world and in an area of the law amenable to judicial activism—judicial review of constitutional amendments by the Colombian Constitutional Court. The results of this analysis are clear: extant notions of judicial activism are not sensitive enough to detect actual instances of activist decisions. Sentencia C816/2004, which is widely regarded as an example of a non-activist decision, is incorrectly interpreted as an activist judgement under traditional criteria. Furthermore, Sentencia C-699/2016, which pursuant to standard conceptions should be a non-activist ruling, is, as a matter of fact, an activist judgement. From these general considerations we can derive some other specific conclusions. First, our study was geared towards the conceptual clarification of a contested concept such as judicial activism. Although our definition of activism as ‘improper’ use of powers might have some normative content, our chapter’s aim was neither normative nor explanatory. However, this conceptual clarification might open the door to hold more productive normative and explanatory conversations. Understanding the phenomenon we are seeking to evaluate and explain is a necessary step to determine the desirability of activist or non-activist courts as well as the sources 15 thereof. From this follows that judicial activism is not necessarily a judicial vice nor judicial selfrestraint is inevitably a judicial virtue. This is a pending discussion that presupposes the existence of sound and accurate conceptions like the one we hope we provided in this chapter. Second, one of the main implications of the practical analysis is that decisions invalidating constitutional changes cannot be equated to judicial activism. Contrariwise, rulings endorsing amendments should not necessarily be conceived of as non-judicial activism. Striking down or upholding pieces of legislation –and criteria related to it like (not)replacing decisions made by the elected branches or (lack of) deference– are overinclusive indicators that not always capture cases of judicial activism and non-activism, respectively (Hein, 2020, pp. 198–199). Even more, the existence of a judicial judgement is not a prerequisite to talk about judicial (non)activism. As Hein has aptly shown in the European context, there have been cases of judicial activism when courts have refrained from adjudicating on amendments when they are supposed to do so and, similarly, examples of non-activism in those events in which courts have properly decided not to intervene in amendment-related cases (Hein, 2020, pp. 197–199). Judicial activism in the absence of a ruling on the merits, is an intriguing new avenue of research that compels us to rethink prevailing ideas of judicial activism. 16 References Activismo judicial. (2017). In S. Muñoz Machado (Ed.), Diccionario panhispánico del español jurídico: Vol. 1 A-F. Santillana. Acto Legislativo 1, (2016). Acto Legislativo 2, (2003). Alexy, R. (1986). Theorie der Grundrechte. Suhrkamp. Bulygin, E. (1992). On norms of competence. In C. Bernal, C. Huerta, T. Mazzarese, J. J. Moreos, P. E. Navarro, & S. L. Paulson (Eds.), Essays in Legal Philosophy. Oxford University Press (Publicado originalmente en 1992). 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