Q&A with Manuel José Cepeda Espinosa, former president of Constitutional Court of Colombia| March 12, 2019
Manuel José Cepeda Espinosa was a magistrate of the Constitutional Court of Colombia for eight years and served as its president from 2005 to 2006. Justice Cepeda was a member of the technical-negotiation team working on transitional justice during the Colombian peace process. From 2014 to 2018, he served as the president of the International Association of Constitutional Law.
Cepeda is also a devoted academic who served as dean of the Universidad de los Andes Law School and has written many books on constitutional law. He is a graduate of the Universidad de los Andes and Harvard Law School.
During his recent visit to the Woodrow Wilson School, The Daily Princetonian spoke with Cepeda about his role in the Colombian peace process and his thoughts on current trends in constitutional law.
Daily Princetonian (DP): FARC’s [the Revolutionary Armed Forces of Colombia] transition from combat to politics has been met with skepticism and controversy. Do you feel that full reintegration is possible in the near future? What are the most significant challenges to reintegration?
Manuel Cepeda (MC): It is important to value that FARC already demobilized, already laid down arms, became a political party, and has started participating in elections. Secondly, it’s very important also to give proper value to what FARC leaders have said concerning the problems and challenges of the implementation of the peace agreement. Until now, the basic position of the main leader of the new party is that, in spite of low implementation of the peace agreement, they continue to believe in peace and will continue to work for peace. In this context, the biggest challenge is what is going to happen with the Special Jurisdiction for Peace, which is the transitional justice institution created by a constitutional amendment in Colombia for FARC and military to account for grave human rights violations and grave infractions of international humanitarian law. There is a huge controversy concerning this Special Jurisdiction for Peace, and the big question is whether it will continue to function without big changes coming from partly the government and also the Democratic Center Party that has criticized this Special Jurisdiction for Peace and now is a party of the government. If the Special Jurisdiction for Peace cannot continue working in a reasonable way, this would, I think, really create a huge obstacle to the continuation of the implementation of the peace agreement in Colombia and the stability of what has already been achieved.
DP: President Ivan Duque campaigned against the peace accords and accused the Special Jurisdiction for Peace of being too lenient on former rebels. What are your thoughts on these accusations?
MC: Well, the Special Jurisdiction for Peace is the first time in Colombia that there is going to be accountability for crimes against humanity and war crimes. Usually, peace processes in Colombia ended with amnesty. Here, there is not going to be amnesty for these crimes. Secondly, the Special Jurisdiction for Peace will condemn those that were the most responsible for these atrocities, and these sentences will not be imposed in absentia but with those responsible present and submitting to Colombian jurisdiction. It should be noted that no other peace process in the world has ended in a way in which those that end the rebellion accept to be judged and sentenced. So of course if there is acknowledgement of truth and responsibility for the crimes the sentence will be lower. This is the incentive. But the Special Jurisdiction for Peace also has an adversarial track procedure for those that do not acknowledge truth and responsibility, and the sentence, if found guilty, may go up to 20 years in prison. So the big question is: could there be a stronger, harsher system? Where has this system been proposed or invented or created? And, to my notice, there is no other part of the world where this kind of transitional justice system that imposes penalties on those that committed the crimes has been established. So ideally, perhaps someone may think it should be different, but the big challenge in Colombia was how to give justice and truth for the victims and at the same time build peace and put that in the agreement, so that justice not only ends with a sentence that stays on paper, but a sentence that is really implemented and applied. No one has proposed yet a viable alternative.
DP: What do you see as the largest challenges to justice at the current time, whether international or domestic, in Colombia or in the United States? What can be done to face these challenges?
MC: I think the challenges to justice are very different depending on the context of each country, so for a country like Colombia, the big challenge is how to end impunity, and I think that the Special Jurisdiction for Peace is an attempt to put an end to impunity for atrocities during that armed conflict. We also have the challenge of ending impunity for other kinds of crimes in Colombia. But in other countries, perhaps the challenge is different. For example, I think that in well-established democracies, the big challenge is how to really give space to the judicial system which is more protective of the rights of the weak within the society, of the vulnerable within the society, of those that are not included in the main benefits offered by the society. And this is a huge challenge because, usually, justice works at the margins of the problem, not at the core of the problem, and there are huge debates on whether it is an appropriate role for justice to work at the core of the problem. In Colombia, constitutional justice has worked at the core of the problems, not at the margins, but I understand that this is very controversial. And I think a third challenge is how to incorporate in the administration of justice’s different systems all the technological advances that are being developed, like artificial intelligence and developments in the organization and decision-making fields of study. The administration of justice in general continues to be heavily influenced by the original design of the judicial system in each country, so the capacity to evolve and to incorporate advances in fields’ technologies is low, and I think this is a general challenge all over.
DP: Can you speak a little about your involvement in the International Association of Constitutional Law and the importance of cooperation between constitutionalists from around the world?
MC: Well, as former president and now president emeritus of the International Association of Constitutional Law, what I can say is that we live in times when basic constitutional institutions associated with liberal democracy are under stress. We are in times in which the examples of how good institutional arrangements worked, like the United States for a presidential system and like Great Britain for a parliamentary system, are in crisis. We are in times in which in areas of the world where we thought that populists were a thing of the past, they are now present and active and challenging important projects of consolidation, of democratic principles. So we are in times in which constitutional lawyers have to think of how to preserve democratic principles in contexts that have changed so much and that require institutional arrangements that are responsive to these challenges but at the same time preserve the basic democratic ideals that have contributed to build peace and the protection of liberty, dignity, and equality in the Western Hemisphere and in Europe.
DP: Do you believe that the increase in right-wing politics, like that seen in several European countries, can have a significant impact on existing constitutional systems?
MC: We are seeing that. It’s already happening. So it’s happening in Hungary, it’s happening in Poland, it’s happening in other European countries where perhaps the right-wing parties have not won but have become very important players in the political process and therefore have affected how the political systems operate and what are the important issues for the debates. And I also believe that not only because of that but because of other deep transformations in societies within each country and deep transformations in the way globalization has operated, we have a challenge as constitutional lawyers to address these new developments in creative ways. Of course there is the temptation always, when these kinds of structural challenges appear, to say, “Let’s go back to the origins, and let’s reaffirm what we know worked and used to work.” And that’s understandable, but I think that we must reaffirm and defend the democratic principles that have guided the political systems in Europe and in the Western Hemisphere, but without trying to apply old solutions to really, totally different new problems.
DP: What advice do you have for students interested in being involved in the field of constitutional law in the future?
MC: Well, I think that constitutional law is one of the most intellectually challenging fields at the moment. First because of the issues I mentioned, and second because exponential technologies are having such a huge impact on what is going to be the future of the human species, constitutional lawyers must think of how to tackle these issues that are already present. Some have to do with just the use of, let’s say, the social media linked to the technologies we know, and these are really huge challenges concerning not only privacy but freedom of expression and the impact on the function of political systems. And also how other exponential technologies will affect what we are as human beings, what is the future of the human species. Such big issues! And since we are concerned with equality, liberty, dignity, these issues are really challenging for constitutional lawyers to address them.