(Reason for the People)
To know what’s really going on in Colombia
Source : http://www.razonpublica.com/index.php/politica-y-gobierno-temas-27/8704-la-justicia-penal-militar-y-policial-justicia-que-no-es-justicia.html
(Translated by Eunice Gibson, CSN Volunteer Translator)
Open criticism of a law made to order so that the military and police in Colombia are judging each other, in cases of serious crimes as well as minor ones. A law intended to create impunity and make a charade of justice.
By Michael Reed Hurtado
BOTH JUDGE AND PARTY
People are talking about the military criminal justice system (JPM is the Spanish acronym.) again because the government has just approved a new component of that legal device. It broadens and strengthens the military criminal exemption: Statute 1765, approved July 23, 2015.
This statute adds to the existing Military Criminal Justice Code (Statute 1407 of 2010), which is in effect but has not been enforced. The requirements in the new law are mundane. They partially regulate the bureaucratic and administrative labyrinth of the JPM. The fill it with agencies that are fashionable in criminal law and they organize a parallel (but inequitable) system to the existing justice system that investigates, prosecutes, and punishes members of the military and police.
Statute 1765 is just part of the 180-degree shift in the JPM that the government is pushing. Because they were not able to do it by changing the Constitution (Legislative Act No. 02 of 2012) which the Court found to be unconstitutional, (Decision C-740/2013), they are doing it by changes that appear to be less dramatic.
This wave of reforms seems to be moderate and restrained, but it’s full of legal tricks and holds firmly to the purpose of broadening and strengthening the exemptions for military and police who are tried by each other and under rules that only they can understand.
The new law is part of the legal armor against a basic principle of international and constitutional law that isn’t popular in Colombia. Under that principle, the JPM can only be used for that conduct that by its nature is contrary to legally protected interests in military order.
AND WHAT ABOUT THE RULE OF LAW?
By means of tales, euphemisms, comparisons, ambiguities, and a lot of repetition, the JPM has been incorporated into the Colombian legal and political world as an accepted juridical concept.
But in reality the JPM is not a court and is not part of the judicial branch. It is more like an instrument of the executive, of the Armed Forces and of the Police.
For a number of years the government has been trying to expand the coverage of the JPM and use it to protect the military and the police involved in criminal proceedings in the civilian justice system. Although it wasn’t easy, it looks as if they have finally achieved their goal.
But the costs are extremely high. The bases of the rule of law have been violated, including the principles of separation of powers, of due process (judgment by a competent tribunal) and of transparency and accountability.
The new statute is part of the remodeling of the JPM, decorating it with new institutions like the Attorney General’s criminal unit for police and military, and a Technical Investigation Group for police and military, so as to create a parallel universe of supposed prosecutors, investigators, judges, defense counsel, and even special military prison guards.
Instead of making sure that there is a competent and independent investigation of illegal acts by those serving the public, the new rule strengthens the Defense Ministry so that is employees and staff, with modern criminal nomenclature, can conduct an internal probe carried out by the peers of those being investigated.
Since the Technical Investigation Group (CTI is the Spanish acronym.) in the Attorney General’s Office doesn’t serve their interests, they created a new group of military and police investigators. This group supposedly will investigate and provide the elements that are necessary for JPM investigations. But there is a detail that distinguishes this group from the Attorney General’s: it is dependent on the Ministry of Defense.
The administrative bodies created by this statute are expensive monstrosities intended to wash the dirty linen in-house. The whole scaffolding of the JPM is not set up to judge the crimes typically committed by the military, but rather to cover up serious crimes that result in corruption and illegal violent acts committed by members of the Armed Forces.
Putting this statute into effect (with the institutions it creates) along with the accumulated effect of the legal and administrative changes in the Ministry of Defense, will be disastrous for human rights and public administration.
The legal juggling and nit-picking cannot change the fact that the JPM is an administrative department of the Defense Ministry. No matter how much they dress it up and put on make-up, the JPM will never have the organic independence that is required to administer justice.
The separation of powers is a premise of the rule of law that cannot be rendered null and void by martial music or by rhetorical ornaments. The autonomy and independence of the administration of justice cannot be reduced to mere declarations; it requires specific guarantees so that investigators and judges are genuinely impartial, instead of acting with “esprit de corps”.
TWISTING THE LAW
There is nothing particularly scandalous in Statute 1765; its wording is humdrum and its content is utterly boring. But for those who have followed the debate, the various earmarks and snitches in the labyrinth of agencies dependent on the Defense Ministry and who administer justice jump out at you.
For constitutional experts it’s clear that the JPM is the exception and the ordinary civilian justice system is the norm. Nevertheless, after all of the legal errors and the public debates rigged and managed, the norm doesn’t seem to be that clear.
Many people (people with influence or decision-making power) have fallen for the scheme or have pushed the story that the exception could turn into the rule if JPM succeeds in looking like a system of justice. Statute 1765 of 2015 is part of an elaborate manipulation that ends up subverting the Constitution and international law to make the exception into the rule.
Little by little, the law is being twisted by “military necessity” or they argue the interests of the “internal conflict” to justify something illegitimate. To repeat, the majority of Colombians have begun to believe that the JPM is part of the judicial apparatus. Fiction has turned into reality and an administrative Frankenstein has been allowed to rise up and walk.
THE IGNORANT CIVILIANS
Broadening the reach of the JPM is justified because “only a soldier can judge another soldier” every time that his actions are taken because of extra special considerations that we civilians could not possibly understand.
Using this logic, the bankers would have to be judged by bankers; only doctors could judge doctors, or only bishops could judge a priest accused of pederasty.
The JPM covers crimes allegedly committed by active military and police against public administration, against lives and against the civilian population, among others. Besides the crimes that are specific to military discipline or military service (reasonably assigned to the JPM)—such as insubordination, disobedience, desertion, or abandonment of guard duty—the new and revitalized JPM assumes competence over destruction (of civilian property, such as hospitals or archives), homicide, embezzlement, theft and all common crimes when they are considered to be committed in relation to the service. Clearly, the military and police are seeking to be judged by different standards and by an administrative system that depends on their Ministry when they commit crimes while in the exercise of their functions.
Put in another context, this arrangement is a corrupt mayor’s dream: stealing “in the framework of his functions” (that is to say, taking advantage of the fact that he is the mayor) to be able to be investigated and judged, not by an institution of the justice system, but by a hearing before his peers, who will be able to understand the pressures and the difficulties confronted by a burgermeister.
Besides that, in these cases, the punishment will be made to order, in a jail made and run by jailers who understand the offender, something that is just as absurd for the mayors as it is for the military. And nevertheless, that is what they have sold us and what is now part of Colombian law.
BOTH UNUSUAL AND SCANDALOUS
As things stand now, unless the Constitutional Court defends the basic values of the rule of law, the fantasy continues to be reality, and the JPM (which does not have jurisdiction) will administer justice for the military and the police.
All of this is both unusual and scandalous, but it has been normalized and it doesn’t bother anybody. The protectors of the JPM are more scandalized about the criticism of their monstrosity than the citizens who will have to be up against this exaggerated deception.
In this space I have referred mainly to justice by the military for the military, but it’s worthwhile to remember that the monstrosity also affects the special kind of justice by police for police, a camouflaged justice, parallel, a species of para-justice.
This whole monstrosity was not set up to investigate and prosecute crimes that are typical for the military. That has always been the case and nobody doubts that. The changes were made so that the JPM can cover up the crimes commonly committed by the military and the police as part of their service.
They have created an administrative mechanism carried out by their peers to investigate and prosecute public officials who commit crimes in the exercise of their duties. It’s no more and no less than that. It sounds terrible, but that’s the absolute truth.