By Yamid Amat, EL TIEMPO, February 12, 2023


(Translated by Eunice Gibson, CSN Volunteer Translator)

An interview by Yamid Amat with Diana Fajardo, President of the Constitutional Court:

“Peace is a right and a duty that we are obliged to accomplish.” That’s something prescribed by Colombia’s Constitution, and that is how the President of the Constitutional Court, Diana Fajardo, stated it as she defined the high court’s position on President Petro’s program of “total peace”.

Justice Fajardo, a member of the high court for five years, an attorney and political analyst, was just selected as President of the Court. That is one of the reasons this writer invited her to discuss her position on a number of current issues. For example: ‘total peace’.  And I opened the dialog with the following question:

The President of Colombia has announced his program of ‘total peace’. How far is it possible to have ‘total peace’ under Colombia’s Constitution?

Right now there are six cases before the Court challenging Statute 2272 of 2022 which, among other things, defines peace as a policy of the government, and establishes tools for “total peace”. One of them has already been accepted, and the rest of them are being processed.

Under what constitutional conditions can crimes like drug trafficking be benefited under the ‘total peace’?

Right now that discussion is before the administration, the Congress, and civil society.

Won’t the Court intervene on this issue for any reason?

Only in the event that a regulation raises an issue that is properly before the Court for constitutional control can the Court make a statement on a specific issue.

What will be the Court’s role in the ‘total peace’ process?

Under our constitutional system, “peace is a right and a duty that we are obliged to accomplish”, according to Article 22 of the Constitution. The Court has the enormous responsibility to carry out constitutional control of the laws and public policies that try to achieve peace. We have to guarantee that the rights and principles established in the Constitution are respected. That is what has been done in examining the laws that have provided for submission to the legal system or for reincorporation into civilian life by different armed actors who have operated outside the law.

It will do the same in the current case?

It’s a responsibility and a very important task that we continue to carry out with rigor and within the framework of the Constitution.

The Court has declared a serious humanitarian crisis in the killings of the signers of the Peace Agreement. What is needed to master this crisis?

In effect, that’s a very serious issue addressed in Decision SU-020 of 2022, and which led the Court to employ, one more time, unfortunately, its most powerful judicial tool for the protection of rights: “the state of unconstitutionality”.

In the decision you mentioned, what was the Court’s explanation?

That in exchange for demobilization and laying down of arms, which had already taken place and had been accomplished completely by the people who had committed themselves to reincorporation into the fabric of society, the least they could expect is “to be able to make that significant transition in a dependable manner and to be secure in their lives and bodily integrity”.

But, was that actually accomplished?

The rigorous evaluation of the available information revealed serious lagging and noncompliance with that fundamental guarantee. The pathway that the government and the society owed to them is long and complicated; specifically, the states of unconstitutionality are scenarios where there is no resolution in a question of days. In its decision, the Court insisted that, with regard to accomplishing that goal, “it was insufficient to provide the signers of the Final Peace Agreement who were in the process of reincorporation with bodyguards, flak jackets, and armored vehicles.” More than those basic ingredients of security, the Court explained, the concept of human security is more comprehensive; it presupposes thinking also about “the creation of conditions that offer the person a peaceful life, free from pressing needs, from discrimination, humiliations, and stigmatization.”

But the murder of social leaders continues. What can be done?

“That is another crisis. Inevitably, as Colombians, we are pained and concerned. The Constitutional Court has already had the opportunity to issue some decisions on civil rights actions in the dramatic situation when the environmental leaders, ethnic leaders, leaders in land restitution and other social causes survived. The Court has warned that persecution and murder of social leaders not only violates their fundamental rights as individuals, but it also represents a collective loss and serious backward steps in “the consolidation of this country as a truly democratic and pluralistic republic, founded on respect for human dignity”. Finally, every murder of a social leader is a blight on our society.

And in that situation, what did the Court do?

The Court held a public hearing on protection measures for the population of leaders and human rights defenders. That accumulated record of proceedings is awaiting an opinion by the full Court after a meticulous study.

On another matter, there have been continual statements by the Court about the terrible situation in the prisons of this country. What use were those statements?

The concept of a state of unconstitutionality, as related to the prison situation, is an exceptional tool that should be available to confront certain challenges or structural threats to protection of rights in this country. That leads to a need to search for solutions. Even though it would be ideal to surmount this crisis, the Court has a monitoring branch for permanent supervision of progress, and it can adopt decisions that could serve as a catalyst in the process of looking for solutions.

What can be done when the rights of people who have lost their liberty are violated in jails, prisons, and URI’s?

That’s a delicate question because, once again, any detailed opinion could eventually interfere with the work the Court is doing.

You approved transcendental reforms like decriminalization of abortion. The decision triggered a great national controversy by those who think that 24 weeks is too long to wait to interrupt a pregnancy. What do you think about the objections?

I understand that that decision aroused intense debates in our society. But I would like to pick up on three ideas contained in Decision C-055 of 2022. They seem to me to be relevant: it stated with the premise that a criminal penalty is the ultimate alternative that should be used to regulate conduct. Decriminalizing the interruption of pregnancy does not equal promoting it or desiring that it occur in week 24 of a pregnancy. The Court simply concluded that the criminal penalty was unconstitutional in the terms fixed by the legislature, and that such conduct could be attended in other legal areas.

But did that decision provide for alternatives?

The idea of decriminalizing abortion until the 24th week does not come by itself. The Court was emphatic in that this decision should be accompanied by important developments in public health policy that would allow women to prevent undesired pregnancy.

And how would that be accomplished?

Through education about sexuality, the struggle against gender violence, and the use of contraceptives.

In the term fixed to permit interruption of pregnancy is there no life yet?

The maximum term for legal access to voluntary interruption of pregnancy is due to the judicious and carefully considered review that the Court made of studies of the subject, using different disciplines that, for example, demonstrate the term in which there is the greatest probability that the fetus might be capable of living outside the uterus, and the consideration of the constitutional rights and values in play. In that last sense, we considered the insuperable barriers that many women confront in obtaining an interruption in early stages, especially those most vulnerable for economic reasons.

Four Justices took part in the decision. Why were you the only woman that voted to support it?

Because I shared the ideas that were presented by the Justices writing the decision on the necessity of a new pronouncement on decriminalizing abortion, principally related to the evolution of understanding of the rights to health and to the sexual and reproductive rights of women.

The opponents claim that the interruption of a pregnancy means the interruption of a life. Is that so?

Defining what human life means and when it begins are existential questions that have accompanied humanity since its beginning, and the Court will not try to resolve such a debate.

How concerning is the insecurity of women in the area of sexual rights in this country?

The statistics demonstrate and the jurisprudence has observed in some cases, for example, in decisions about menstrual hygiene and gender violence, that women and girls are confronting a worrisome insecurity of their sexual rights. First, there is an important lack in the quality and availability of education on sexuality. There is also a need for progress in the prevention, investigation, and effective punishment for harassment, abuse, and any other type of sexual violence.

The Court is the President of the Commission on Gender of the Judicial Branch. What is the panorama on sexual harassment in the interior of the high courts?

You’re right, Justice Jorge Enrique Ibáñez Najar presides over the National Commission on Gender this year. In the Constitutional Court we have now formulated and shared a policy for gender equity and zero tolerance of violence.

And how will that policy be put into practice?

We’re making progress, in cooperation with the USAID program, “Generating Equity”, in participatory construction of an accompaniment protocol for cases of sexual harassment , as well as awareness and implementation of a policy of gender equity.

By the way, on next March 8 we will be celebrating Women’s Day. Does the Constitutional Court have anything planned?

A lot of things. For example, there will be recognition of outstanding women who are models of leadership; women who reflect personal and professional qualities and competences that fulfill not only the culture’s pattern for women, but also those who have challenged stereotypes that belonged exclusively to men; for their accomplishments, their tenacity, and the excellence and quality of their work.

What does it mean for this country when the Constitutional Court continues to be headed by a woman?

It means that, for the first time, 30 years after the adoption of our Constitution, there is a succession in the representation of women on the Supreme Court. It means that we are breaking the stereotypes where men were the ones who were called, not only to administer justice, but also to occupy the highest positions in the judicial branch. At any rate, it calls for remembering that while the Constitutional Court has had around 30 Justices at its head in its three decades of functioning, only seven women have done that.

What should this country expect from your term as President of the Constitutional Court?

Our actions are oriented toward achieving justice that is closer to and more appropriate for the citizens, with some projects that we are already working on.

This entry was posted in News and tagged , , , , , . Bookmark the permalink.