In 87 pages, with five votes in favor and four saves, the Constitutional Court definitively concluded the debate on the power of the Constitutional Court. Even if the Office of the Chief Prosecutor is dismissed, it will investigate and punish and inability to hold public office – to those elected by popular vote.
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On Thursday, the Court announced the full sentence, although the essence of its decision has been known since February 16: The Attorney General’s Office continues its disciplinary duties despite the Supreme Court’s decision. The Inter-American Court of Human Rights in the case of Gustavo Petro, but that its final sanctions did not operate without the prior review of the State Council.
Although this has been clear since February, all these months, while awaiting the final text of the sentence, both President Petro’s government and some judges of the Council of State have maintained the line that the limitation of political rights can only be decided upon. by a criminal judge (as determined by the American Convention on Human Rights in 1969), not by the disciplinary board (as historically has happened in Colombia).
The value of the document is that it closes the gap in comments. Therefore, the Court makes clear in one section that its decision thus harmonizes both constitutional jurisdiction and Colombia’s obligation to comply with the jurisdiction of the Convention.His orders “set a binding precedent for judicial authorities when they need to interpret other norms of the legal system” Regarding the powers of the Attorney General’s Office.
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That aside, it is a call for preliminary attention to the judges of the Council of State, who argue that the Constitutional decisions are not implemented because they are unconstitutional – as in another notorious case such as the ceiling of mega pensions. The Convention and this, as an international treaty, are binding on law and case law.
What the Supreme Court warns is that its provision “addresses the harmonizing of relevant national norms with Articles 8, 23 and 25 of the American Convention on Human Rights, so that this is constitutionally final”, he warns.
And he adds: “The above means that this provision affects the entire legal system, so it must be complied with by all judicial and administrative authorities.” This last point means that positions such as President Gustavo Petro’s recent refusal to impeach the mayor of Riohacha and being investigated by the Office of the Attorney General for allegedly compelling to comply with Inter-American Court rulings have no validity. legal support..
As is known, the Court abolished the jurisdictions that the 2021 reform had given to the Attorney General’s Office to try to comply with the requirements of the Inter-American System. The resolution therefore says that “granting jurisdiction to the Office of the Attorney General for the exercise of disciplinary powers concerning public officials, including those elected by popular vote” violates basic constitutional principles and exceeds the powers granted by the Political Letter. Congress. .
But the decision essentially contains what the constitutional court said earlier in almost a dozen sentences: Limitation of the Attorney General’s supervisory functions over public officials, including those elected by the public, to the norms of the legal process (in fact, disciplinary decisions have always been audited by the Council of State).
The Court recalls that “supervision of the performance of the public function responds to the system of checks and balances peculiar to the model of the Colombian State, whose purpose is to guarantee efficiency in the development of activities, the rights of individuals and the satisfaction of the general interest. justified by the need to ensure the proper functioning of the public function to ensure that
Therefore, the judges warn, “Although the American Convention is part of the constitutionality bloc, the case-law of the Inter-American Court of Human Rights has not been integrated.let alone harmonization decisions (…) In this sense, it should be noted that these decisions cannot be automatically transferred to the Colombian case without taking into account the peculiarities of the domestic legal system”.
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Contrary to the Continental Court’s decision that only a criminal judge can limit the political rights of elected officials, the Supreme Court “remembers that there are constitutional norms that give administrative authorities the power to dismiss public officials directly. even in extensive cases involving mayors and governors, these powers belong to the President”.
And the resolution adds: “Likewise, the Constitution authorizes Congress to impeach, prosecute, and impeach the President or those acting in his place, without implying a violation of the Convention.
Likewise, there is nothing to prevent the attribution of the authority to impose sanctions against public officials elected by the people, which lead to the removal of the position, their dismissal, to the judges who do not fall within the criminal specialty – the administrative courts and the Council of State – the public officials. or invalidity of choice”.
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Judges point to the contradiction that would imply criminalizing conduct that is now trivial (i.e. not a crime) but misdemeanor: “Therefore, for example, in the case of congressmen, they should be sentenced to a proportionate or unreasonable prison sentence, failing to attend six plenary meetings within the same sitting period, or indictment. absenceanyone. Although these crimes threaten the “transparent, effective and probable execution of legislative action”, they should therefore not be criminalized.”, says the decision.
The Court assures that limiting the Attorney General’s powers would “create a regulatory vacuum that would hinder the effectiveness of the principles guiding the public function, in particular morality and administrative transparency, protection of public assets, building trust with parties.” the person who manages the collective goods and the fight against corruption”.
He also says that the Colombian State “has undertaken international commitments to combat corruption” and reminds that these agreements must also be followed.
(Read: Court prepares to decide cases against President Petro’s tax reform)
The constitutional resolution also lays out how the disciplinary function should function from now on, but warns that Congress must pass legislation on the matter, and eventually toward a formula where the Attorney General investigates and charges disciplinary officials, just like the Attorney General in criminal cases. , but it is the judges of “any specialty” who decide on these charges. HE The only investigating and accusing formula of the Attorney General’s Office was the formula defended by the four judges who did not agree with the majority’s decision.
As is known, the financial sanction imposed on those elected by the Attorney General’s Office by voting needs to be reviewed by the Council of State. However, to prevent disciplinary control from being harmless, this review has a 6-month period “counted from acceptance” by the court. An important statement from the Court is that this mechanism currently works for those holding public office.
(Read: State Council confirms Margarita Cabello election as attorney: this says)
The Court concludes by stating that “the application of the guarantee of judicial reserve in the strict application of sanctions relating to the dismissal, suspension and dismissal of popularly elected public officials” does not affect “other constitutional norms that authorize administrative authorities to directly withdraw from office”. the accusation of the popular election against public officials”.
Like this Even the Inter-American System has not questioned the Attorney General’s authority to impose, for example, impeachment as a precautionary measure..