Although the historical process through which Colombia has come to be what it is has been long and complex, it is necessary here to consider some elements to better understand the current socio-political, legal, cultural and economic conditions in which a conflictive but productive relationship between the medical profession, healthcare services, and bioethical/ethical discourses has been evolving since the early 1990s. The history of modern Colombia can be traced back to the early nineteenth century when many Latin American countries were born as a result of the wars of independence. In 1823 the former Viceroyalty of New Granada seceded from Spain. These territories included current Colombia, Venezuela, Ecuador, and Panamá, which together became the Republic of La Gran Colombia. Following internal political and military struggles, Venezuela and Ecuador seceded in 1830, and Panamá in 1903.187 The war of independence was basically a bourgeois revolt against Spanish rule, taking the advantage of the Napoleonic invasion of Spain and, moreover, the realisation of the dream of Liberté, Egalité, Fraternité that inspired this war did not come automatically. In fact, following the war of independence the country entered a long period of chaos for almost the whole of the nineteenth century. For some authors, independence was just a „name changing‟ while an oppressive regime continued in the former Spanish colonies. As L. Eslava has argued, “[…] the historical revolutionary process in Colombia came to be seen as transference of power from a foreign monarchic elite to the local Creole elite” (Eslava, 2009, p. 193).
Throughout the nineteenth century Colombia had a variety of political constitutions and experienced several civil wars. Some of these constitutions included revolutionary ideas ahead of their time, such as the recognition of citizen‟s rights for indigenous people in 1812 or universal suffrage in 1853, earlier than in many European countries (Posada, 2011). In 1863, the radical liberal government in office introduced a new constitution that turned Colombia into a federal state, The United States of Colombia. However, when the conservatives were victorious in another civil war in 1886 they gave Colombia yet another constitution to counterbalance the previous influence of radical liberalism. With the
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124 constitution of 1886 the now re-named Republic of Colombia became a paternalistic, protectionist and centralised state with a strong presidential system. The country adopted a clear confessional identity when Roman Catholicism was recognised as the official religion. This constitution was so anti-liberal that some have argued it prevented Colombia taking part in the first wave of globalisation (Mejía, ND, p. 5). Yet two constitutional reforms (carried out by Liberal governments in 1910 and 1936) softened this authoritarianism and made the constitution more inclusive, something that according to R. Uprimny (2011) allowed the constitution of 1886 to have a long life.
In 1948, when the liberal leader Jorge E. Gaitán was assassinated, the country went into a period known as „La Violencia‟ [The Violence], which has had strong and lasting effects on Colombian society until the present day. The origins of Colombia‟s current guerrillas can be traced to this period, when many liberals had to flee to the countryside to escape the persecution of the conservatives. The only period in which Colombia was under a military dictatorship in the twentieth century was 1953-1957, and when it finished, the ruling classes made an agreement to share power during the following years. Thus, until the early 1980s, conservatives and liberals would each have their opportunity to be in office.188 But violence never ceased. In the last 50 years, Colombia has experienced an irregular and complex armed conflict. Moreover, in the last 30 years it has developed a global reputation for drug production and trafficking. Hence, apart from suffering internal violence in different forms (armed conflict, state repression, inequalities, corruption and so on), additionally Colombians had to tolerate the international stigma of being considered drug-traffickers. Nonetheless, Colombia is the oldest democracy in Latin America, and its economy is one of the most stable of the region. Violence, however, is so pervasive in Colombia that some consider it an „epidemic‟ (Franco, 1997; Quevedo, Hernández & Miranda, 1993, p. 233) in which different factors converged: leftist guerrillas, ultra-right paramilitaries, drug-dealers, criminal gangs and even state military forces. Yet, as L. Eslava (2009) has argued, “[c]ynically, Colombia is still considered a model of democratic stability and economic growth in Latin America, [a situation that some have called] the Colombian paradox […] the country‟s resilient capacity to remain in a painful state of stability” (pp. 192, 195f). This irrational, paradoxical, painful and endless way of living of Colombians was masterly depicted by the Colombian Nobel laureate writer G. García Márquez in his celebrated novel One Hundred Years of Solitude.
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125 At the end of the 1980s the country seemed to have reached the absolute low point. Four presidential candidates were killed, many people massacred or displaced, bombs rattled the cities and corruption was endemic in the country. It was the time of Pablo Escobar Gaviria, the infamous and most powerful drug baron. Against this backdrop, a political student movement, embodying a wide societal desire for change, succeeded in promoting a process that led to the creation of a National Constituent Assembly in 1991 (Dugas, 2001; Murillo & Gómez, 2005, p. 2f). Thus, the new constitution of 1991 was enacted, marking the most fundamental break in the more recent history of Colombia (Uprimny, 2011). The intention behind this constitution was to pull the country out of a profound institutional and ethico- political crisis that had been manifest since the late 1980s (Cardona, J., 2011).
Under the new constitution Colombia defined itself as a “social rule-of-law state189
[which is] democratic, participatory and pluralistic, founded on respect for human dignity, work, and solidarity between all citizens […]”(PC, 1991) Also, a “truly effective system for the protection and promotion of a new, generous bill of rights” was introduced, following the Universal Declaration of Human Rights, Articles 11 to 95 (Cepeda, 2004, p. 575f). The 1991 Constitution also introduced the acción de tutela [tutelage action or demand of custody], popularly known as tutela, “a writ of protection of fundamental rights [that] enables any person whose fundamental rights are being threatened or violated to request that a judge with territorial jurisdiction protect that person‟s fundamental rights” (Cepeda, 2004, p. 552). This innovative legal tool has given Colombians the possibility of demanding from the state that their fundamental rights are guaranteed and protected. As L. Eslava has argued, without
tutela the status quo in Colombia would have remained untouched (Eslava, 2009, p. 209).
Moreover, the Constitutional Court, the highest court in the Colombian legal system, was designated the ultimate “guardian of the constitution”.190
Twenty years after the impact is still a matter of debate. By and large, Colombian citizens think positively of the Political Constitution of 1991 (hereafter PC of 1991), particularly because it guarantees fundamental human rights, promotes the idea of a secular society based on pluralism and human dignity, and gives citizens legal security before the state (Cajiao,
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The idea of adding „social‟ to the concept of „rule of law‟ was inspired by the 1948‟s German as well as 1978‟s Spanish constitutions (Eslava, 2009, p. 185).
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Under the Constitution of 1886, the Constitutional Chamber of the Supreme Court of Justice carried out this function.
126 2011; R. p. El Tiempo, 2011a, 2011b). However, the PC of 1991 did not mean the end of problems for Colombian society. According to the renowned constitutionalist R. Uprimny (2006), “[t]he constitution of 1991 came into being amid the crisis of 1989-1991, but it did not solve it. The war has not finished, corruption is pervasive, and the political establishment continues as if nothing had happened. On the contrary, even positive aspects of the Charter have been reversed” (p. 81). Although it was introduced only fairly recently, the original text of the PC of 1991 has already been modified 34 times (El Tiempo, 2011b). Some have argued that the PC of 1991 was too idealistic that it was “best suited for Switzerland”, while others repeated what Victor Hugo said of the Colombian constitution of 1863: “it is a constitution fit for angels” (Cepeda, 2004, pp. 532, footnote 1). Yet the more ferocious criticism of the PC of 1991 and the laws which derived from it, for instance, the healthcare reform of 1993, has been against its supposedly „neoliberal inspiration‟ (Cruz, 2010, p. 274; Vega, 1999).