President Álvaro Uribe’s proposal to amend Colombia’s constitution would hurt accountability for politicians who collaborated with paramilitary death squads, Human Rights Watch said today.
One of the Uribe administration’s proposed amendments would remove all investigations of members of Congress from the jurisdiction of the Supreme Court, which now has exclusive authority to try sitting congressmen. Instead, trials would be conducted before a local court in Bogotá, and the Supreme Court would only hear appeals. The text of the amendment is unclear as to whether prosecutors from the Attorney General’s office or judges from the Bogota court would conduct investigations.
Uribe’s proposal would undermine a series of ground-breaking investigations by the criminal chamber of the Supreme Court into the infiltration of paramilitaries in the Colombian Congress, which have come to be known as the “parapolitics” cases. More than 60 congressmen from Uribe’s coalition have come under investigation, and more than 30 of them are in prison for collaborating with the paramilitaries.
“Uribe is brazenly trying to take the power to investigate congressmen away from the one institution that has done the most to uncover and break paramilitary influence in the congress,” said José Miguel Vivanco, Americas director at Human Rights Watch. “This proposal serves no real purpose, other than to help members of Uribe’s coalition get off the hook.”
The politicians imprisoned as a result of investigations initiated by the Supreme Court include Senator Mario Uribe, a cousin of the president and one of his closest political allies for many years. They also include Senator Carlos García, the president of Uribe’s party, “la U,” whose arrest the court ordered on July 25, 2008. As a result of the investigations, Uribe and various cabinet members have repeatedly launched attacks against the Supreme Court, making questionable accusations and even calling justices on the phone to inquire about pending cases.
The government has justified its proposed amendments by invoking two basic due process rights: defendants’ right to be tried by an impartial tribunal, separate from the entity that investigates them; and their right to an appeal. Currently, the criminal chamber of the Supreme Court both conducts the investigations and tries the congressmen. There is no appeal from its rulings.
Human Rights Watch recognizes these problems, which need to be addressed. However, there are other solutions that would ensure a fair and independent process while not jeopardizing the parapolitics investigations and would not require removing jurisdiction over the investigations of congressmen from the Supreme Court.
“Certainly, the congressmen are entitled to due process, but this proposal is far from necessary to secure those rights,” said Vivanco. “The government’s Orwellian invocation of due process here appears primarily designed to mask an effort to undermine the 'parapolitics' investigations.”
Indeed, in a recent ruling the Constitutional Court urged the Colombian congress to issue legislation – without amending the constitution – to “separate, within the Supreme Court itself, the functions of investigation and trial” of congressmen. The same could be done with respect to appeals, as the Colombian constitution provides that the Supreme Court may be divided into however many chambers the law determines, and various functions may be assigned to specific chambers or judges. Thus, instead of amending the constitution and removing the investigations from the Supreme Court, the congress could easily pass a law assigning the function of investigation, trial and appeals to various chambers of the court.
The Uribe administration has also said that its proposal is meant to increase the independence of the court system, pointing to the fact that one of the amendments provides that all Constitutional Court justices are to be selected by the judiciary itself. Thus, as of mid-2009, the president would no longer get to nominate any members of the Constitutional Court.
Human Rights Watch said that this aspect of the proposal is little more than a smokescreen, as President Uribe will get to nominate his next set of candidates to the Constitutional Court in a few months, before the amendments go into effect.
“This is not really about independence; it’s about impunity,” said Vivanco. “The fact is, individual prosecutors or lower court judges with less protection, experience and visibility are far less likely to push the investigations of the congressmen forward than the Supreme Court, which has a proven track record in these cases.”
Approval of the proposed amendments depends on the Colombian Congress itself. Given that 20 percent of the Congress is under investigation or arrest as a result of the Supreme Court’s investigations, and given that the Uribe administration has a large majority in the Congress, the amendments are unlikely to face much resistance.
Should the amendments be approved, they would probably affect not only future cases, but also investigations that have already been started by the Supreme Court. Many of the defendants would rely on them to file appeals demanding that they be granted the favorable treatment provided by the new amendments.
The proposal contains other problems in addition to the provisions concerning jurisdiction over criminal cases against congressmen. Of particular concern to Human Rights Watch, the proposal would give the president exclusive authority to nominate candidates for inspector general (Procurador General de la Nación), to be approved by Congress. This change could undercut the independence of the inspector general, who is charged with conducting all disciplinary investigations of government officials. Nominees for inspector general are currently presented not only by the president but also by the courts.