The Electoral Code welcomes the Petro Ruling – Column by Rafael Barrios Mendivil

The Electoral Code welcomes the Petro Ruling – Column by Rafael Barrios Mendivil

The New Electoral Code (Draft Statutory Law 409 of 2020 of the House and 234 of 2020 of the Senate) implemented in the Colombian norm an important part of the judgment of the Inter-American Court of Human Rights, IACHR Court, of July 8, 2020. The Court protected the political rights of the former mayor of Bogota, Gustavo Petro, and ordered the State that no citizen may be denied the right to be elected or to govern when he has been elected by popular vote.

It should be recalled that the judgment declared the violation of Gustavo Petro’s political rights, due to the dismissal and disqualification made by the Attorney General’s Office, AGO, for being an administrative authority and not a criminal judge as required by the American Convention on Human Rights, ACHR, in its Article 23. The judgment reaffirmed the jurisprudential precedent of the Leopoldo López Mendoza vs Venezuela case and reiterated the prohibition to sanction popularly elected officials, as I explained in my column “The importance of Gustavo Petro’s victory in the IACHR Court” of August 23, 2020.

This prohibition is enforced by the New Electoral Code. In the future, the National Electoral Council, will no longer be able to reject the registration of candidates who in the past have been sanctioned with administrative, disciplinary or fiscal rulings. Examples of this are rulings of the AGO or the General, departmental or district Comptroller’s Offices (Paragraph 2.l Article 90) as it happened to Petro in 2014 when, being the mayor of Bogota, he was removed from office by the then Attorney Alejandro Ordóñez.

In the future, the only sanctions that will be taken into account to reject the registration of candidates or the suspension from office will be those of a criminal nature, i.e., those issued by the courts, tribunals and judges of the Republic for the commission of a crime.

Now, according to the New Electoral Code, judges and magistrates must send to the National Registrar of Civil Status a copy of the operative part of the criminal sentences in which the disqualification of public rights and functions is decreed, within fifteen (15) days following its execution, so that the corresponding citizenship cards are removed from the electoral roll. The official who fails to comply with this obligation shall incur in a very serious offense (Article 48).

On the other hand, the Petro judgment, in relation to due process, declared the violation of the principle of impartiality and clarified that the concentration of investigative and sanctioning powers of the AGO is not in itself incompatible with the ACHR “if they fall on different instances or agencies”. In compliance with the Court’s decision, the New Electoral Code separated the investigation and decision phases in the administrative sanctioning processes carried out by the National Electoral Council, and also guaranteed the right to a second instance (Article 17, paragraph 5).

Although in its judgment the IACHR Court did not grant the obligation to respect and guarantee the right to personal integrity without discrimination -point 5 of the decision-, two judges issued a partially dissenting vote in favor of this point. The New Electoral Code provides that the political participation of every person is a right that must be exercised without any discrimination based on race, ethnicity, sex, gender, sexual orientation, gender identity or age, among others (Article 4, numeral 19).

What are the pending issues? The Petro ruling ordered Colombia to reform the current Unified Disciplinary Code to eliminate the power of the AGO to dismiss and disqualify elected officials. But Attorney Fernando Carrillo gave another interpretation to the IACHR Court’s decision in Circular 005 of September 1, 2020 when he told his subordinates that they can continue to dismiss and disqualify elected public servants when the processes are related to corruption cases.

The AGO presented on January 6, 2021, a few days before the end of its mandate, the “bill by which guarantee measures are adopted in the processes against popularly elected officials, in the fight against corruption and for human rights violations”. Like the circular, the bill maintains the competence of the AGO to dismiss and disqualify popularly elected officials, both in the current Single Disciplinary Code and in the new General Disciplinary Code that will enter into force on July 1, 2021.

The new General Disciplinary Code (Law 1952 of 2019) that will enter into force in the middle of this year in its Articles 44 and 45, has a similar content to the current Single Disciplinary Code (Articles 48 and 49), which is why these provisions must be adapted to conform to the ACHR as ordered by the Petro ruling.

Dr. Carrillo also insists on contradicting the judgment of the IACHR Court by clinging to the systematic and evolutionary interpretations and that any judge should exercise jurisdictional control of the sanction imposed by the AGO in cases of corruption and violation of human rights to popularly elected public servants. With the foregoing, the literal interpretation and the criminal judge mentioned in the Petro ruling are ignored.

Dr. Carrillo’s bill has a positive aspect: it proposes to repeal Article 5 of Law 1864 of 2017, because it may have the effect of inhibiting a person to run for public office if he/she has been subject to disciplinary or prosecutorial sanction for being in violation of the ACHR. This point is fine, but the rest is not.

Finally, the Colombian Fiscal Code (Law 110 of 1912), must adapt its rules that allow imposing sanctions for fiscal debts issued by the Comptrollers of the Republic to the sentence and to the new electoral code, a step that is also missing.

We hope that the Congress will follow the same path traced with the New Electoral Code and finish updating and adapting the disciplinary, fiscal and criminal laws to what the IACHR Court ordered, since the government will be accountable to the International Court as of July 2021. Congressmen will have the last word.

Rafael Barrios Mendivil
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