Distrust of Legislature and Implications for Social Rights Adjudication: Colombian case

Although a lot has been written to refute the Separation of Powers (SOP) objections against judicial enforcement of social rights, the same kind of attention has not been paid to the effect the said jurisprudence has had on the construction of SOP doctrine. Colombia is an appropriate case-study on this question. The notion of “harmonious cooperation” between branches in the 1991 Constitution has been difficult to realize due to the dysfunction of the legislature. This is not surprising considering the Colombian context, where distrust seems to be the default starting point in the interaction of the branches. This led the court to link trust on substantive issues of social rights protection, to the quality of the deliberation in Congress. In light of the case-law, the paper aims to locate these developments under appropriate SOP doctrine and answer the question, what the appropriate judicial tools are to overcome the failure of the political system in the social rights context.