By Prensa Cajar | January 12th, 2022 | Analysis and opinion, Editorial, Editorial Cajar, Overcoming the armed conflict and building peace
Originally published in Confidencial Colombia
The judgment of the Inter-American Court of Human Rights in the Gustavo Petro Urrego vs Colombia case, from July 8th, 2020, is still provoking controversy due to the National Government issued Decree 1851 of 2021, from December 24th, 2021, which created 1,208 new positions in the Attorney General’s Office allegedly to comply with such judgment. Faced with the criticism and controversy generated by the decision, Attorney General Margarita Cabello said that these positions should be created in order to sanction officials elected by popular vote, according to the Court’s ruling that condemned Colombia for the effort to remove Gustavo Petro from his position as mayor of Bogota.
The Inter-American Court had foreseen such an argument and took it upon itself to refute it by means of a Resolution of November 25, notified to the prosecutor on December 21st. As stated in numeral 20, “It is relevant to recall that in several parts of the judgment this Court was emphatic in reiterating, based on a “literal interpretation” of Article 23.2 of the American Convention on Human Rights, that a restriction to political rights by removal or disqualification of popularly elected officials imposed by way of sanction should be “sentencing by a competent court in criminal proceedings.”
The Court added in paragraph 22 of the Resolution that: “In this sense, the legal reform proposed by the State continues to allow a body other than a judge in criminal proceedings to impose restrictions on the political rights of democratically elected officials, in a manner incompatible with the wording of Article 23.2 of the American Convention and with the object and purpose of said instrument (…) with which the Attorney General’s Office is still retaining the power to impose sanctions of dismissal and disqualification on democratically elected public officials”.
The Attorney General’s Office did not pronounce itself on the Court’s questions, pointing out that the issue is being studied, and that the formal response will be given by the State. At the same time, it has insisted that it is complying with the order: “Based on a “systematic interpretation” of the American Convention, it has been admitted that authorities other than criminal authorities may limit the political rights of popularly elected officials, as long as the decision maker is autonomous, independent, and impartial”, contrary to the Court.
This is not the first time that the Attorney General Cabello lies to the country and the international community. On June 2nd, 2021, while the reform of the Disciplinary Code filed by her, which ended up being approved as Law 2094 of 2021, was still under discussion in Congress, the Attorney denied that many positions would be created: “What they are saying has not been proved, much less that thousands of positions will be created within the Attorney General’s Office, much less to say that it is bureaucracy that will be given to the Attorney General’s Office. What is intended is, by complying with the order of the Inter-American Court of Human Rights, to separate investigation and prosecution”.
It should be recalled that Petro sued the State, alleging that his political rights had been violated when he was dismissed as mayor of Bogotá by former Attorney General Alejandro Ordóñez. The Court agreed with him, and stated that Article 23.2 of the American Convention contains the requirements for the restriction of the political rights of persons elected by vote as a result of a sanction of dismissal and disqualification as long as it is issued by a “competent judge”, through a “conviction” of a “criminal proceeding”.
The judgment ordered the State to adapt its internal legal system, as follows: To modify Articles 44 and 45 of the Unified Disciplinary Code that empowers the Attorney General’s Office to dismiss and disqualify public officials; Article 5 of Law 1864 of 2017 because it can generate the effect of “inhibiting a person to run for a public office of popular election when he/she has been subject to disciplinary or fiscal sanction” without being subject to criminal sanction; and Article 38 of the Disciplinary Code, which prohibits competent officials to possess those who appear in the bulletin of those responsible for fiscal matters. It is quite clear what needs to be done, but none of this has been complied with.
Silvia Serrano, a lawyer and expert in international law, said that the Resolution just issued by the Court confirmed what she had already warned: “The three adjustments ordered by the Court in the Disciplinary Code, the Comptroller’s Law and the Criminal Code are still not being complied with”. She added that what Congress must do is to eliminate from the powers of the Attorney General’s Office the power to dismiss and disqualify elected officials and this must be done by reforming the current legislation. Law 106 of the Comptroller’s Office and the Penal Code must also be adapted. However, these Court orders “remain unfulfilled”.
And not only that. Law 2094 of 2021, instead of limiting the competencies of the Attorney General’s Office, granted it judicial status, ignoring Article 23 of the American Convention on political representation, and generating important risks in the distribution of public power in the different institutions contemplated by the National Constitution.
This was made clear by the Council of State in its opinion of June 11th, 2021, in which it ruled against the granting of jurisdictional powers to the Attorney General’s Office because it does not comply with the constitutional function of the administrative jurisdiction, and the principle of functional division of public powers. The Council of State Plenary added that the Attorney General’s Office is not foreseen as a body that is part of the jurisdictional branch, nor can it perform the functions that correspond to judges.
The José Alvear Restrepo Lawyers Collective, the Colombian Commission of Jurists, and delegates Ángela María Robledo and Alexander López Maya sued the Constitutional Court in early November against 14 articles of Law 2094, precisely for attributing to the Attorney General’s Office jurisdictional functions for overseeing the official conduct of those who perform public functions, including those of popular election, and for carrying out disciplinary investigations and imposing sanctions of dismissal, suspension and disqualification.
Debates have already been announced in Congress for Attorney Cabello to justify her actions to the country in a public hearing. There have even been calls for her resignation.
In addition to demanding explanations, Congress should eliminate from the powers of the Attorney General’s Office the power to dismiss and disqualify popularly elected officials through a legislative reform, and adapt Law 106 of the Comptroller’s Office and the Criminal Code as ordered by the Inter-American Court’s ruling. There is already enough illustration.
And the Attorney General Cabello must stop lying.
