By Sebastián Forero Rueda, EL ESPECTADOR, April 13, 2021


(Translated by Eunice Gibson, CSN Volunteer Translator)

The decision that sends the civil rights actions on plantings for illegal use to the Council of State would place greater obstacles in the way of communities trying to defend their fundamental rights to life and health. In regional courts and tribunals, they have been able to suspend operations and block the effort to return to spraying glyphosate.

In just seven days, the showdown over forced eradication of coca plantings in this country, whether by manual eradication or by aerial aspersion of glyphosate, seems to be tilting in favor of the government. Not only because on Monday the administration issued a Decree that regulated the fumigation program, but also a week earlier, they had issued Decree 333, according to which the civil rights actions filed on these subjects may only be heard by the Council of State, and that could mean, according to lawyers that advise the campesino communities, stalling, red tape, and obstacles to obtain justice and to defending fundamental rights to life and health.

Keeping in mind, above all, that it has been the regional courts and tribunals where the communities have in recent months been able to halt forced eradication in a number of regions, and stop the proceedings for returning to fumigation with glyphosate. “In both areas (forced eradication and aspersion with glyphosate), the communities have been very organized, and that has affected the government’s ability to carry out the plan they call the war on drug trafficking in the way it would like to do. There are courts and tribunals that have done their duty, and have ruled that the evidence furnished was sufficient to stop such aggressive policies. They have made decisions that the administration didn’t like,” explains Attorney Diana Bernal, from the Orlando Fals Borda Collective, which has accompanied the organizations that have filed these civil rights actions.

There are a number of cases that exemplify the situation very well. On July 17, 2020, the Superior Tribunal in Pasto, responding to an appeal, ordered the operations of forced eradication suspended in the Awá indigenous reservation Inda Sabaleta in Tumaco (Nariño Province). The decision held that the Armed Forces had violated the rights of the Awá people when they entered the indigenous territory to eradicate the coca, because there had not been a prior consultation process with the community. The decision was unexpected, because although the government argued that the operations had been carried out in territory that was not titled to the reservation, the Tribunal found that the ancestral territory of an indigenous community is more extensive than the physical space formally delineated, and that it had been certified that the communal land holders occupied it and used it for their economic activity. Besides, the area was part of the reservation’s application for expansion filed with the National Land Agency. Without prior consultation, the Colombian Army was not allowed to eradicate the coca in that reservation, ruled the Tribunal.

On August 18, the Cauca Administrative Tribunal, responding to an appeal, also ordered the suspension of forced eradication, this time in the municipalities of Caloto, Cajibío, and Piamonte. In that decision, the Tribunal emphasized that the Constitutional Court had defined a hierarchy among the methods of eradication. It prioritizes voluntary substitution over forced eradication. Because it was proved that in those municipalities they had carried out eradication operations in spite of the fact that there were already families signed up for the Voluntary Substitution of Crops for Illegal Use Program (PINIS), or had made agreements where they expressed their desire for substitution, the Tribunal held that the forced eradication operations violated what the Constitutional Court had stipulated. It thus found that, in those three municipalities, there could not be forced eradication of coca until they had first tried a process of voluntary substitution.

Later, on September 14, 2020, the Nariño Administrative Tribunal ordered the suspension of forced coca eradication operations in the Municipality of Ancuya. That ruling argued that it had not previously been established that the communities in that Municipality intended to do voluntary substitution of their coca plantings, but neither had the Armed Forces conducted a process of explanation and information with the community before they commenced their eradication operations. The government has asked that the Constitutional Court review that decision.

In the opinion of the Minister of Justice, Wilson Ruiz, the government’s Decree 333 was not adopted because of the rulings won by the communities, and, on the contrary, “it’s intended to guarantee jurisprudential consistency. We aren’t taking any action that is against the campesinos or against any citizen, because we aren’t denying the possibility of any party to appear before any judge. They can do that, and in case the official before whom they file their civil rights action lacks jurisdiction, that official is obligated to receive it and send it immediately to the appropriate judicial entity,” he insisted. In addition, he said that the fact that the higher judicial entity is going to rule on the civil rights actions is the best guarantee for the plaintiffs.

But, according to several sources consulted for this article, even though the communities can file the civil rights action in any court, and that court must send it to the Council of State, that necessarily implies delay of the cases. “What happens if the Council of State, for example, has to examine factual evidence? What will they have to do? They’ll have to send the case back to the municipal courts and regional tribunals to examine it. That would lead to delays,” warned Pedro Arenas of the Viso Mutop Corporation, which is following the issue closely. “That can be very serious at times, because months can pass while they are delegating those functions, while we are talking about a constitutional action of immediate necessity. In the best of predictions, it could take up to three and four times more time than it would take in a regional tribunal,” summarized Bernal of Orlando Fals Borda.

The civil rights action, as a legal tool to defend fundamental rights, has also been used to intervene in the government’s plans to return to aerial fumigation with glyphosate on plantings for illegal use. In fact, it was through a series of civil rights actions filed in Nariño that the hearing by the National Agency for Environmental Licenses (ANLA), necessary in the procedure for issuance of an environmental license for fumigation, had to be postponed several times during the past year. Social organizations argued that, for one thing, in a virtual hearing, as was necessary because of the pandemic, the hearing did not guarantee the participation by the communities directly affected, and, additionally, they had not resolved the issue of the necessity of prior consultation for the fumigation program.

In an appeal process, the Tribunal finally permitted the conduct of a hearing last December, but it avoided ruling finally on the prior consultation issue. The Constitutional Court took up that issue for review, and there should be a decision on that soon. It might give the green light, or it might stop the return of glyphosate. At the same time, the high constitutional tribunal, as Rosa María Mateus, from the José Alvear Restrepo Lawyers’ Collective warns, it could also rule on the participation by the communities in the whole process of the National Police Environmental Management Plan (PMA); that’s to say even before what was presented to ANLA for its approval. “The Police have been ordered to consult with the municipalities that might be affected by the risks, and to work with them to prepare an evaluation of the impacts,” the Attorney explained. According to his statement, the Police had adjusted the PMA and presented it to ANLA on their own.

But another civil rights action, perhaps the last one to be decided by a regional tribunal, is the one that is now affecting the commencement of aspersion. The Pasto Superior Tribunal, On January 13 of this year, accepted a civil rights action filed by all of the Afro-Colombian communities and the indigenous peoples of the Pacific part of Nariño Province, grouped together in the Redhpana, and the Orlando Fals Borda Collective. They obtained a provisional order for the suspension of the Interior Ministry’s Resolution 001. That Resolution certified that in the area of the 104 municipalities in the six geographic nuclei where the government wants to fumigate, there were no indigenous territories.

Without that Resolution, the procedure could not continue because they would then have to carry our prior consultation procedures with the ethnic peoples who would be affected. That civil rights action has not been completely resolved. For one thing, the government filed a civil rights action against the Justice of the Tribunal, arguing that she was interfering with the administration of justice and the activities of the Police in the war on drugs. At the trial level, they lost, and now the case is in the Supreme Court of Justice. Next, the Justice held that the jurisdiction to resolve the action lay with the other Court in Nariño, and that Court said that it had no jurisdiction, and therefore the Constitutional Court is studying the jurisdictional conflict. It’s hoped that they will very soon be decide which court can hear another key civil rights action in the process of renewing aspersions of glyphosate.

Even though the Decree that sends this kind of civil rights action to the Council of State does not cover this particular civil rights action, which was filed before the Decree was issued, according to the Attorney from Fals Borda who filed it, “It is definitely an exercise of extreme intimidation because it will be the last decision by a regional tribunal in relation to those actions, and the government has made clear the paramount interest that it has in this subject.”

Attorney Jhenifer Mojica emphasized another effect that the controversial Decree could have in the future: protecting itself from the civil rights actions that could be filed when the fumigation program gets under way. “Last week they released a Decree saying that they get to choose their own judge to take over all of the suits that are going to be filed the issue of glyphosate, and now this Decree that they know we are going to challenge. An action to have this Decree, or the ANLA environmental license, declared unenforceable is a case that could last for more than five years. But with the fumigation program, the harms that it will generate are violations of human rights, and in those cases, the extraordinarily effective measure to avoid their continuing the violation is the civil rights action,” she warned. It’s not for nothing that the action that inspired the decision T-236 in 2017 by the Constitutional Court, which established the requisites for the return of fumigation with glyphosate, originated with a civil rights action filed at that time by a city official in Nóvita in Chocó.

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