( Translated by Ann Boylon, a CSN volunteer translator)
By Hector Castro Portillo
Resident of Lyon, France
President Uribe is presently in a confrontation with the Supreme Court of Justice in regards to the so-called justice and peace law. The President’s attack on this court, the highest in Colombian common jurisdiction, cannot but result in serious consequences. This is not any ordinary bit of bother between an important judicial institution and national politics because, in a large measure, the future of the country’s political regimen depends on its outcome.
This conflict affects one of the pillars of the modern State, the separation and independence of public powers. Also at risk is the nature of a political crime and even the juridical existence of armed conflict. The President’s action has placed the country at a very delicate juncture.
THE CAUSE OF THE CONFLICT
As part of a judicial process, the Penal Section of the Supreme Court of Justice has denied political status to members of the paramilitary groups who have decided to submit to the Justice and Peace Law (Law 975 of 2005). According to the Court, the actions of the paramilitaries do not fall into any of the penal categories of political crime: rebellion, sedition or riot
In the judgment of the Court, because the paramilitaries have never proposed to overthrow the national government, nor abolish or modify the constitutional regime or the law of the land or temporarily impede its free function, nor violently and tumultuously demand that the authorities carry out or omit any function proper to its mandate, they fall under the common law criminal category of aggravated conspiracy to break the law. Nevertheless, to the surprise of everyone, the paramilitaries have, within the framework of this process, declared themselves to fall under the category of sedition.
The government agrees with this. The reaction of President Uribe to this declaration has been, to say the least, over the top. He has even accused the Supreme Court of Justice of torpedoing the peace process with the paramilitaries. He has described the magistrates as having a certain ideological inclination favorable to the leftist guerrilla; he has decided to present a proposed law to Parliament which seeks recognition of the above-mentioned status to the paramilitaries and, finally, he has threatened to appeal to the people if it is necessary to achieve his objective.
THE REASONS INVOKED BY THE PRESIDENT
President Uribe sees the Court’s decision as a major obstacle to the achievement of the goals of the Justice and Peace Law, which is a judicial instrument designed to allow the so-called paramilitaries to submit to the judicial system.
This law has been denounced by human rights organizations and by the Office of the High Commissioner of the United Nations for Human Rights as an instrument of impunity for the crimes committed by the paramilitaries during more than two decades. The paramilitaries are the ones most responsible for the massacre of civilians, for the forced internal displacements of more than three million people and for the dispossession of poor and middle level peasants of their lands and goods.
These groups have been strongly implicated in drug trafficking and have, over almost three decades, accumulated enormous economic power and influence among the political officials at the local, regional and national levels. Their close relations with the military and police forces have been demonstrated in the judicial courts.
The justice and peace law, which appears more of a macabre joke against the victims than an authentic desire of sanction, has been served up by the President to the paramilitaries for the purpose of facilitating a decorous surrender and avoiding extradition to the USA for drug trafficking. Thus the President expresses gratitude for services rendered by the paramilitaries to the State in their fight against the Marxist guerrillas. This law stipulates that the penalties imposed by this law cannot exceed a seven year prison sentence.
Faced with the overwhelming juridical arguments presented by the Court, The President has had recourse to the maneuver of invoking the superior interests of the country, thus denying the right of the court’s jurisprudence in this matter, the law of the land, and the Constitution itself. Uribe maintains that the paramilitaries should be placed on an equal juridical footing with the guerrilla in order that they also enjoy political status. For Uribe, there should be no juridical difference between them.
Why give political treatment to those who attack the constitutional regime and deny it to those who defend it, asks the President, while simultaneously proposing the elimination of political crime from the national juridical system. In the President’s judgment, this is justified by the fact that with this legaldefinition there wouldn’t be an armed conflict in Colombia but a terrorist threat, an argument that echoes that of the Bush administration since the 2001 attacks.
In reality, there are not many precedents of this kind in our recent political history. In the past, of course, governments have objected to certain decisions taken by high level courts, but in the end they always complied with them without calling into question their lawful judicial authority. In the present case, the situation is very different. The President not only doesn’t agree with the Court’s decision to treat the paramilitaries as common delinquents, but he does not appear ready to respect their decision.
He even attributes to the Court political responsibility in the event of an eventual failure of the process of paramilitary submission to justice. This maneuver could, in the violent and polarized context of the country, result in an incitement to make an attempt against the lives of the magistrates.
TOWARD THE DISAPPEARANCE OF THE POLITICAL CRIME?
Political crime has a long history in Colombian penal legislation and has always enjoyed constitutional support. In our case it is the members of the guerrilla organizations that have recourse to it via the rebellion proviso in the law. The Supreme Court of Justice has, not a few times, recognized the altruistic motives that are involved in the crime of rebellion given that the rebel is not seeking egotistical gain, but rather is guided by the search for the common good of the population which they declare themselves to represent. It is for this reason that the legislation reserves for the political delinquent a distinct treatment with respect to other transgressors of the penal law, granting them a more benign sentence and the possibility of a pardon or amnesty, and leaving them the right to hold political or public office after completion of their sentence.
Thus, when President Uribe advocates for political status for the paramilitaries he is opening the way for the possibility of pardons, amnesties and even the possibility of holding elective offices. He is also protecting them from an eventual extradition to the USA. This would mean a total impunity for the uncountable crimes committed by these groups and the legalization of their enormous political and economic power.
It is noteworthy that the President is advocating for political status for the paramilitaries at the same time that he insists that the category of political crime should not exist, given that, in his singular point of view, there is no armed conflict in Colombia. This clear incoherence on his part is due to his desire to label the guerrilla as common terrorists without political ideology. If this proposed law becomes a reality, the traditional separation between political crime and common crime, an old historical legal patrimony recognized in even the most obscure places of the planet, will be wiped out.
URIBE – PARAMILITARIES, AN OLD AND CLOSE CONNECTION?
How to explain this defense to the death of some of the groups that have been identified nationally and internationally as having committed horrific crimes, many of which fall under the purview of international penal law? Why assume the defense of people who are guilty of such crimes, even defying the independence of the judiciary? Nobody in Colombia seems to doubt the close connections between the present Colombian President with the paramilitary groups, a connection that dates from his term as governor of Antioquia in the middle of the nineties. There is an abundance of information supporting this relationship which has been published in the press.
Debates in Parliament, initiated by the principal opposition party, Polo Democratico Alternativo, have proved this connection. Both of Uribe’s presidential elections have had significant direct support from these groups. It isn’t a coincidence that that in both of these elections the paramilitaries have identified Uribe’s triumph as their own. In a position to choose between the rights of the victims and the interests of the paramilitaries, Uribe has not hesitated.
But even beyond this presidential loyalty to the paramilitaries there is another not unimportant factor which helps to understand Uribe’s obstinacy. The Colombian President is known for his authoritarian exercise of power, for his war-like spirit and for his belief that he is the national savior. He came to power in an atmosphere of social polarization and desperation following the failure of the peace process between the Pastrana government and the FARC having made the promise to abolish the Marxist guerrilla. He is convinced that the prerequisite for peace is their military defeat and is prepared to ignore any legal or constitutional obstacles to achieve this end. Nevertheless, it is six years since his rise to power and this objective does not seem reachable in spite of the enormous financial resources invested toward this end.
To those who demand respect for the independence of the other branches of public power, he answers that their independence is not absolute but relative. All public powers must participate in only one war strategy designed by the Executive. No one can, therefore, ruin the government’s plans and programs, not even in the name of the law of the Constitution. The superior interests of the nation, he says, are above all that and above, of course, the interests of the citizenry. In this war against the guerrilla the civil population does not exist.
The population better make up its mind to align itself with the State which includes providing information about the terrorists and unconditional support of the Armed Forces and the Police. All positions of neutrality favor the guerrilla and, therefore, should not be tolerated. With this totalitarian strategy, Uribe threatens the lawful State because he doesn’t accept its rules or because he changes them to suit his purpose. In this he has the help of a docile Parliament.
At the beginning I said that Uribe’s defiance of the Court’s decision could have serious effects in the configuration of the political regime. The concentration of power in the President has been a characteristic of our precarious political system. The President is not only the head of State, but he is also head of the government and the supreme administrative authority. In this system the different powers have been functioning under a certain equilibrium based on the autonomy of each one.
But Uribe, to the detriment of the other branches of public power, is dangerously weakening this equilibrium with his authoritarianism and his extension of presidential powers. This is one of the gravest challenges which the country will confront, along with impunity, a legacy of the justice and peace law, and the daily assassinations against social and political opponents which the paramilitaries continue to commit.
(1) Articles 467, 468 and 469 of the Colombian Penal Code (Law 599 of 2000)
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