Someone Writes to the Colonel: Judicial Protection of the Right to Survival in Colombia and the State’s Duty to Rescue

Abstract

Every Friday for twenty-seven years the protagonist of No One Writes to the Colonel goes to the Post Office in the hope that his pension check might have finally arrived – to no avail. With this never ending wait come daily degradation, hunger and despair, until the end of the story where the remote possibility that his dead son’s game-cock will win next Sunday’s fight is his only chance of survival. In the last scene, the Colonel’s ailing wife, who has resigned herself to wait until that day, asks him, “In the meantime, what will we eat?” And the Colonel answers: “Shit.”[1] In 1992 Colombia’s new Constitutional Court decided a similar case. The plaintiff was a 69 year old man who after a year had not received response to his pension request from Cajanal, the National Pension Fund. He had lost his house, unable to pay rent, and was at the time living with a son who hardly had the means to support him. He had no resources, and required an urgent medical intervention to save his eyesight, but could not access medical benefits without the recognition of his status as a pensioner.[2] His chances of winning against Cajanal before the Constitutional Court were as slim as the Colonel’s cock of winning the fight, since he was asking for a writ of protection for a fundamental right that did not exist in the Constitution: the right to survive. Against all odds, he won the case. The Court accepted his claim, and decided there was in the Constitution an implicit right to survival that derived from Constitutional doctrine on human dignity: the right to mínimo vital, an existential minimum (henceforth: right to survival). [1] Gabriel García Márquez, El Coronel no tiene quien le escriba, Editorial Norma, Bogotá, 1991. [2] Colombia, Constitutional Court T-426 de 1992.