By Juan Pablo Vasquez, Cambiocolombia.com, June 1, 2022
(Translated by Eunice Gibson, CSN Volunteer Translator)
Even though simple “corruption” would not be a valid reason to declare a State of Interior Commotion, Rodolfo Hernández would have, in an eventual administration, several months of manipulation to issue decrees with the force of law while the Court is deciding about the legality of his actions.
Many hours had not passed since the Election Day that gave Rodolfo Hernández a pass into the runoff, when the former Mayor of Bucaramanga formulated what would be one of his first decrees if he should become President: he would declare a State of Interior Commotion, based on the “fact that corruption has become endemic”. That concept, supported by the Constitution, would authorize him to issue decrees with the force of law for a period of 90 days, without any restriction of any kind.
Cambio spoke with Ana Catalina Arango, Professor of Constitutional Law at Envigado University, and with Juan Manuel Charry, a consultant to the Constitutional Convention of 1991, and the former Dean of the Law Faculty at Rosario University. They explained the meaning of “interior commotion” and what its immediate consequences would be.
Arango noted that the President has the power to make use of this concept as long as he/she finds that the hypothetical scenario set forth in the Constitution is present. There would have to be, therefore, a “case of serious disturbance of public order that creates an imminent threat to institutional stability, the security of the government, or to the lives of the citizens, and which cannot be averted by the use of ordinary measures.” However, the verification of this situation only happens after the interior commotion has been declared. That means, there is no previous study, and the President has free rein to make use of it.
“The President of the Republic can declare any State of Emergency, including Interior Commotion, by the direct authorization of the Constitution. In principle, he needs no authorization by the Congress. However, the President is responsible if he goes ahead and declares an Interior Commotion when the requirements for that do not exist. It’s not that the President can just declare it whenever he wants to. He has to comply with the requirements in the Constitution. What’s the problem? It’s that the Constitutional Court and the Congress would impose those controls later, but months later, when there have been irreversible consequences,” says Arango.
An example of a decision that was corrected, but left results that couldn’t be overlooked, were some of the decrees issued by the current administration during the economic emergency caused by the pandemic.
“While the Constitutional Court has control of decrees, there can be results that can’t be undone. With the economic emergency, President Duque decided that persons older than 60 should be forbidden to go out of their homes. Persons older than 60 filed a civil rights action and the Court held that the President could not impose such a measure. But it was nearly seven months before the Court issued that decision, and nothing could be done about the length of time that the people’s rights had been violated,” he pointed out.
Charry agreed with Arango in that Interior Commotion, like the other States of Emergency, doesn’t require the approval of any other government institution in order to be commenced. He emphasized the necessity of complying with the Constitution, because otherwise the decree could be held to be unconstitutional.
“The States of Emergency are intended to allow the government to confront exceptional problems and that’s why they don’t require any approvals. The declaration of a State of Emergency will go next to the Constitutional Court. It has to be an unexpected event, unpredictable and an irresistible force, because it can’t be resolved by ordinary authorities,” he said.
Regarding the impossibility of correcting any kind of abuse by the Executive and possible violations of rights in case the Declaration of Interior Commotion is held to be unconstitutional, Charry emphasized that the Justices must order that their decision have retroactive effect. In all cases, there will always be consequences that, even so, can’t be corrected.
“The Court has the authority to define the effect of its decision, and if it decides to make its order retroactive, then the results must be undone to the extent that they can be undone,” he reiterated.
With regard to the Interior Commotion proposal by Rodolfo Hernández, Arango insisted that it’s probable that it would be held to be unconstitutional, as it’s just based on “corruption”.
“His argument that corruption is a sufficient reason is wrong. What he’s invoking is not a threat to public order or to civic life. The Constitution is very clear in saying that there has to be compliance with some requirements, and those are not present here,” she stated.
Charry followed the same line. “Talking about corruption as an endemic phenomenon is not cause for a Declaration of Interior Commotion. It has to be an event that is unpredicted and serious. Corruption is serious, but it is not an unforeseen situation, because it has always been present.”
The conclusion of both experts is clear: in spite of the fact that there is no legal support for Hernández to declare a State of Interior Commotion, the law itself enables him to do it. Maybe the judicial branch will later declare his action to have been wrong, that it violates the Constitution, but meanwhile, Hernández will have a margin for manipulation for several months to make decisions that will have the force of law.