Law of guarantees: a boomerang from the Constitutional Court for Duque

President Iván Duque, during an interview in Brussels, on February 14.
President Iván Duque, throughout an interview in Brussels, on February 14.JOHN THYS (AFP)

President Iván Duque has as soon as once more run into the Constitutional Court of Colombia. The determination of the excessive courtroom, which this week knocked down the reform that left the so-called assure regulation suspended in the midst of the electoral marketing campaign, is the chronicle of an introduced defeat. Jurists, observers, civil society organizations and politicians from completely different sides had insistently warned that this modification, permitted in October with out additional debate in Congress, undermined transparency and ignored fundamental rules of the Constitution.

The authorities coalition promoted the controversial article, described as a “little trick” by the opposition, which basically suspended the ban that forestalls mayors and governors from signing public contracts throughout the electoral interval. Its approval brought about a wave of indignation and controversy, and even former President Álvaro Uribe, Duque’s political mentor, distanced himself from the measure. The Government defended on the time that it was crucial for financial reactivation after the collapse as a result of pandemic. Transparency for Colombia warned that the change elevated “the risk of diversion of public resources towards electoral purposes.”

The article of disagreement remained in pressure whereas the Court studied it and pronounced itself. In these months, greater than 600 contracts have been signed that characterize no less than 3.4 billion pesos, about 840 million {dollars}, and which should now be rescinded, for the reason that determination has retroactive results. The courtroom identified that from the second it reported its determination, final Thursday, “it will not be possible to sign inter-administrative agreements”, and that “those procedures that are in progress must be completed immediately.” Agreements that haven’t been totally executed should be terminated and liquidated. Opposition senator Iván Cepeda, upon studying of the courtroom’s determination, introduced that he’ll current actions earlier than the prosecutor’s workplace and the comptroller’s workplace towards President Duque and different officers, “responsible for the consequences for the treasury and for democracy of the suspension of the Law Guarantees for electoral purposes”

The consultant Liliana Caballero, who has been director of the Administrative Department of the Civil Service, explains that the Guarantees Law was adopted in its day to prevent corruption and patronage during electoral times and seeks government transparency in electoral campaigns. “It is a Court that’s fulfilling its responsibility to defend the Constitution, which enforces checks and balances,” says Caballero. The most immediate effect is that in the weeks remaining until the first presidential round on May 29, these contracts cannot be concluded, but “an important consequence is that the principles should be revered, Colombia is a Social State of Law.”

In the legal details, the so-called Law of Guarantees is actually an aside from a statutory law, of higher hierarchy, that limits public procurement during the four months prior to the presidential elections, with the purpose of preventing the rulers from using it to be favoured, as the constitutionalist Rodrigo Uprimny explains. It dates back to 2005 and was approved due to the imbalances generated by the re-election – which was approved to favor Uribe’s second term and was repealed again after the Government of Juan Manuel Santos. “A statutory regulation can solely be modified by one other statutory regulation,” says Uprimny, as they require stronger majorities and prior review of constitutionality.

But that was not how the Executive and Legislative branches proceeded with the Guarantees Law. They simply suspended it through an article in the Budget Law, which is an ordinary law with very precise contents in which changes to electoral guarantees cannot be introduced. Thus materialized what in Colombian political jargon is described as a “mico”, an article, paragraph or term that appears in a parliamentary text at the last moment and obeys particular political interests. That article changed the rules of the game just when the elections were approaching and was massively rejected by public opinion. All those in the know anticipated that the Court would overturn the decision.

On the way in which to the judicial determination, nevertheless, legislative elections have been held in March. Several of the reactions to the Court’s ruling level exactly to the time that was misplaced in the midst of the marketing campaign. Sergio Fajardo, the centrist presidential candidate, lashed out on the president: “Iván Duque, with his training as a lawyer, knew this was going to happen. And still he decided to go ahead. So did Congress. They all knew and didn’t care. At this point, the damage is done.” Gustavo Petro, the leader of all the polls, celebrated that “the purchase of mayors and governors was undone.” Another of the applicants, the independent Rodolfo Hernández pointed directly to Federico phyco Gutierrez, the right-wing candidate and the least critical of the president. “The law of lack of guarantees has fallen. The Duque Government must be judged and receive the punishment it deserves for modifying the law to buy wills in favor of Fico”, he identified.

The entire episode has been “grossly unconstitutional”, Uprimny values. “They managed to make his trap have partial effects,” laments the additionally Dejusticia researcher and professor on the National University. “What the government and Congress did had a very undemocratic effect.”

In the twilight of his time period, which expires on August 7, President Duque has mentioned that he want to be a Justice of the Peace of the Constitutional Court sooner or later. But that want contrasts with the lengthy checklist of disagreements that he has had with that prime courtroom, to which this week’s sentence is added. The Court, amongst others, buried the president’s objections to the Special Jurisdiction for Peace (JEP), in addition to the life sentence for baby rapists promoted by the Executive and in addition ordered the Government to ensure the safety and lifetime of former guerrillas from the FARC, by mentioning their breaches of the peace settlement. Duque additionally rejected in February the decriminalization of abortion, which he equated to “a contraceptive practice”, after one other emblematic ruling by the Court, celebrated as historic by feminist teams all through Latin America.

Controversy additionally surrounds the president about the way in which by which he has taken over the impartial powers, by managing to put in people who find themselves very near him in numerous management our bodies. During his mandate, Congress elected Francisco Barbosa as legal professional basic, an in depth good friend of Duque since they have been classmates on the Sergio Arboleda University; conservative politician Carlos Camargo, one other lawyer of his Alma mater; and as legal professional basic of the nation, Margarita Cabello Blanco, who had been his Minister of Justice. In this surroundings, the dialogue in regards to the steadiness of powers, the system of checks and balances and the independence of various entities with respect to the Executive has been revived.

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