“If you are neutral in situations of injustice, you have chosen the side of the oppressor”. Until a few days ago, this quote by Nobel Peace Prize Desmond Tutu – among many other expressions – summarized the position that various alternative sectors in Colombia championed going into the presidential elections held on 17th June.
Daniel Camilo Agudelo Tolosa*
Faced with a situation of a possible revival of tough periods of the country’s history, in which government forces were led by the extreme right, citizens, tired of continual political corruption represented by the traditional Liberal and Conservative parties and their ideological appendages such as Radical Change, Party of the U (The Social Party of National Unity) or the Democratic Centre, among others, massively mobilized to exercise their right to suffrage.
However, the language of fear was more powerful and once again the extreme right – along with traditional politics – remained at the head of the National Government.
Many fears were raised by the presidential results – which were reinforced by a Congress also appointed mostly by the extreme right – and although Iván Duque tried to create an atmosphere of national unity with the words of his victory speech, calming said fears to some extent, he himself revived them when reiterating his (later accepted) request to the Congress of the Republic to suspend the processing of procedural regulation through which the Special Justice for Peace (or the JEP by its Spanish acronym for “Justicia Especial para la Paz”) would start to function with full legal status.
The JEP and why it is important in a post-conflict scenario
The Special Justice for Peace is a special Colombian jurisdiction, created as a result of the agreements for the termination of the conflict with the FARC’s extinct guerrilla forces (“Fuerzas Revolucionarias de Colombia”, Revolutionary Forces of Colombia), tasked with finding out any fact related to or any perpetrator of armed conflict.
The JEP guarantees the victims of armed conflict in Colombia to properly access, by judicial measures, material compensation as well as symbolic reparation, means for clarifying the truth and guarantees of justice.
All this is possible by changing the ordinary penal procedures of criminal justice by procedures of transitional justice that guarantee the perpetrators alternative penalties in exchange for comprehensive compensation for those victims.
The echo of subordination
The request, that the President-elect Iván Duque presented as a clear political struggle between himself and the current President Juan Manuel Santos, also serves as a clear and gross defiance of the rule of law on Duque’s part.
Duque, without yet having the legal command of the Government – as his mandate begins on 7th August – exercised functions of direct interference within Congress. Even more openly reprehensible was the attitude of that legislative body, submissively accepting as a mandate the request of the President-elect.
The first signs of something patent in the next four years will include: the violation of the principle of division of power – by which the executive, legislative and judicial branches do not interfere with each other – that in every Democratic State grants minimum guarantees of independence and neutrality in the taking of decisions.
The excuse is political
For Duque, his reasons are legal and supported by the procedure in Congress of the procedural regulation of the JEP, which could possibly be flawed since the Statutory Law or Legislative Act 01 of 2017 that created the JEP is not signed. Nevertheless, as expressed by the Minister of the Interior Guillermo Rivera, Senator Claudia López and by the President of the JEP herself, Mirtha Linares, this view completely errs since at no point did the Legislative Act ever establish that it was subject to that legislative development of the procedural guidelines of the JEP.
Furthermore, as it is a principle of law, the procedural law differs overtly from the substantial law. As the President of the JEP says: “Congress can and should issue the procedures that correspond to it, many rules and procedural codes have been made without statutory laws”.
So, further to an unfounded corruption of procedure in legislature by which if no law exists, another completely different one cannot be legislated (this analogy itself falls into absurdity), it seems that Duque’s intention is to sabotage the implementation of peace agreements.
The President’s response
After the political strategy lead by Duque and the Democratic Centre to, in practice, torpedo the State’s commitment to establishing a Special Justice for Peace, President Juan Manuel Santos said on Twitter that “Peace must be above political calculations”.
In this way, he sent a clear message of dissatisfaction for the politicization of a vital element (the JEP) for the compensation of the victims and the fulfilment of peace agreements.
Within this same communication, he expressed his intention of using two kinds of constitutional tool, which the Presidency of the Republic has in order to face situations like the current one, of a Congress that is negligent in complying with its legal and historical responsibilities.
The first is the request of the urgent processing of bills of acts, and insistence on said urgency. This procedure is instituted in the Political Constitution in Article 163, whereby the Congress must resolve the required bill with urgency and priority which, with insistence, becomes the main one.
In this way, the other bills are not processed until that one is resolved.
The second tool announced by Santos before the evident sabotage to the regulation of the JEP, is to cite extraordinary sessions, which, by law, must be carried out between 20th June and 20th July, with the objective of processing specific bills of acts. In this regard, Decree 1033 of 2018 was published on 20th June, citing these sessions from 21st June to 3rd July.
There is hope
Given the current situation and facing the tools deployed by the Presidency of the Republic, Congress has only two courses of action: to either approve or reject the regulation of the Special Justice for Peace.
The process to resolve the request for presidential urgency and insistence requires one of these scenarios.
Following these ideas, before the recent events where the plenary of the Senate ignored the above while reaffirming the suspension of the procedure of the regulation law, we would face a tacit collapse – from a legal perspective – of the JEP regulation in the Senate. This could occur if the Senate continues to adopt this frank attitude of contempt towards the constitution in order to comply with Duque’s political orders.
However, the situation is not entirely negative. Proof of this was given by the House of Representatives on 20th June, when it assumed political independence from Duque.
That day, the House of Representatives respected the constitution and acted in compliance with it when dealing with the Government’s urgency and insistence procedure, and resolved to approve the regulatory provisions of the JEP in their entirety.
That, in addition to the social pressure that in recent days summoned thousands of people on social networks and to the Plaza de Bolivar – the physical space where Congress meets – demanding the regulation of the JEP, places on the Senate the historical responsibility of rejecting or approving said regulation.
* Daniel Camilo Agudelo Tolosa, Lawyer and Human Rights activist.
(Translated by Hannah Phelvin-Hartley – Email: email@example.com)