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Author Topic: Major constitutional reform in Colombia  (Read 312 times)
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« on: June 20, 2015, 07:58:40 pm »

The Colombian Congress adopted, earlier this week, the definitive version of a major constitutional reform which began in late 2014, known locally as the 'reforma de equilibrio de poderes'. It will become effective once it is officially published, although at the same time the Constitutional Court will review it for constitutionality.

It is probably one of the most important reforms to the Constitution of 1991 since it was adopted, and it carries important changes to the executive, legislative and judicial branches of the Colombian government. The reform was proposed by the government, specifically by Interior Minister Juan Fernando Cristo and Justice Minister Yesid Reyes.

Here are the main contents of the reform:

Ban on reelection

This is, according to the government and everybody else, the most important in this reform: reelection for the President is abolished, even for non-consecutive terms. A Vice President, when he has served less than three months, continuously or intermittently, as acting President, is not covered by this ban. Furthermore, the ban on reelection is being locked down by ensuring that it can only be amended or removed by a popular initiative referendum (which is nearly impossible in Colombia) or in a constituent assembly.

A Vice President will be allowed to run for the presidency only if he has resigned the vice presidency one year prior to the election. This means, for example, that if current Vice President Germán Vargas Lleras wants to run for president in 2018, he'll need to step down one year before.

The Constitution of 1991, in its original state, banned anybody who had served as President from being reelected either to a consecutive or non-consecutive term. In 2004, under Álvaro Uribe's presidency, a constitutional amendment allowing the President to serve up to two terms in office was passed by Congress and declared constitutional by the Constitutional Court, leading, as we know, to Uribe's triumphal reelection in 2006.

The 2004 reform, in the opinion of many Colombians and the current government, reelection has led to a major imbalance in the separation of powers - because Uribe, reelected, had the power to directly influence the composition of a third of the Constitutional Court, the board of the central bank, attorney general and so forth. Therefore, for many, reelection weakened judicial independence and concentrated more powers in the hands of the executive, creating a major imbalance in the political system.

Álvaro Uribe, now the leading opposition senator, claims that the ban on reelection is revenge, and some of his supporters point out the apparent hypocrisy in the current government abolishing reelection after President Juan Manuel Santos was reelected in 2014. The government argues that reelection in 2014 was necessary only to ensure continuity in the peace talks in Cuba, and argues that the ban on reelection will strengthen democracy, ensure that power is not concentrated in a few people, allow generational and political change and keep those in power from abusing it to remain in power indefinitely. In the words of Cristo, the interior minister, "this is so that there can be no all-powerful men in Colombia.

Reform of the administration of the judicial branch

This is the second major aspect of the reform, although it's far more technical and less accessible to the wider public than the ban on reelection. The Superior Council of the Judiciary (Consejo Superior de la Judicatura), which was basically in charge of administering the judicial branch and disciplinary actions against judges and lawyers, is abolished and its responsibilities are transferred to the Council of Judicial Government (Consejo de Gobierno Judicial) and the National Commission of Judicial Discipline (Comisión Nacional de Disciplina Judicial), two new bodies.

The structure and the work of the old Superior Council of the Judiciary was criticized by experts and academics. For the administrative roles, some of the criticisms included the competence of lawyers to make decisions on administrative, managerial and budgetary issues; the lack of representation of the broader judicial profession in the administrative chamber; the lack of transparency; the structure of the administrative chamber as a judicial body when it was actually a managerial body and the excessive centralism in the management of the judiciary.

But perhaps one of the most problematic aspects of the body was the election of judges, and the high risk of clientelism therein. The administrative chamber was in charge of preparing the lists of candidates for the election of judges and magistrates in most courts in the country, which obviously gave the Superior Council of the Judiciary great power in deciding who got promoted and who could serve as a judge on the highest courts. Combined with the fact the the Supreme Court of Justice and the Council of State in turn elected five of the six members of the administrative chamber of the Superior Council of the Judiciary, this created a perverse revolving door mechanism known as the yo te elijo, tú me eliges (by way of example, two former judges of the Supreme Court of Justice who participated in the elections of judges for said court were later selected by the Supreme Court of Justice to serve in the administrative chamber). Finally, the Superior Council of the Judiciary was accused of being more concerned with defending the 'corporate' interests of the judicial branch rather than citizens' interests.

As for the disciplinary chamber, whose seven members were elected by Congress from lists proposed by the government, it was criticized for its politicization and questionable independence from the political power. In certain cases, the disciplinary chamber has controversially favoured politicians' interests even if it meant overturning prior judicial decisions from the courts.

According to the reforms, the Council of Judicial Government will be in charge of defining the public policies of the judicial branch; drawing up the list of candidates for election of judges; regulating judicial and administrative procedures; setting the regulations for the control and oversight of the legal profession; approving the draft budget of the judicial branch and approving the 'judicial map' (basically defining the boundaries of judicial districts and circuits).

It will be composed of nine members: the presidents of the Constitutional Court, the Supreme Court of Justice and the Council of State; a manager of the judicial branch, who must be a professional with 20 years experience including 10 in business or public administration, appointed by the Council of Judicial Government for a four year term; a representative of the tribunals and judges, elected by them for a four year term; a representative of the employees of the judicial branch, elected by them for a four year term; and three permanent full-time members elected by the other members for a four year term. These permanent full-time members will be responsible for the strategic planning of the judiciary and proposing to the Council, for its approval, public policies of the branch. They must have 10 years experience in design, evaluation and monitoring of public policies, management models or public administration. No member may be reappointed.

The Management of the Judicial Branch (Gerencia de la Rama Judicial) is subordinated to the Council of Judicial Government, which is tasked with defining its organic structure, supervising it and accountable for its performance before Congress. The Management of the Judicial Branch is in charge of implementing the decisions of the Council of Judicial Government; providing the Council of Judicial Government will administrative and logistical support; preparing the draft budget for approval by the Council of Judicial Government; implementing the budget as approved by Congress; drafting plans and programs for approval by the Council of Judicial Government; administrating the legal profession; organizing public competitions; monitoring the performance of staff and offices and other administrative tasks.

The National Commission of Judicial Discipline will exercise disciplinary functions over the officials and employees of the judicial branch, including examining the conduct and punishing misconduct of lawyers. It will be made up of seven magistrates; four of which will be elected by Congress from lists sent by the Council of Judicial Government following a public competition and the other three of which will be elected by Congress from lists submitted by the President following a public competition. They will be elected for individual terms of eight years, and they may not be reappointed.

The judicial branch is rather unhappy about this reform, for a wide variety of reasons (which do not seem obvious to outsiders like us) but which perhaps boil down to aversion to political intervention in their business and claims that the reform does not resolve the real issues including the independence of the judiciary. There seem to be legitimate concerns about the election of judges by the Council of Judicial Government and the risk for conflicts of interests because the National Commission of Judicial Discipline will be partly elected by the Council of Judicial Government The judicial branch, apparently led by a magistrate of the Council of State, is actively gathering signatures to organize a referendum on it, which is probably an uphill battle since, I believe it would require gathering signatures equivalent to 5% of the current electoral roll.
« Last Edit: June 20, 2015, 08:17:13 pm by Hash »Logged
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« Reply #1 on: June 20, 2015, 07:59:28 pm »

Comisión de Aforados

Hitherto, accusations against judges of the Constitutional Court, the Supreme Court of Justice, the Council of State, members of the Superior Council of the Judiciary and the Attorney General (Fiscal General de la Nación) were investigated by the Chamber and they were, if appropriate, tried by the Senate (although the 'impeachment' here is slightly different than in the United States, in that the Senate's sentencing power is quite limited).

In the Chamber, a comisión de Acusaciones was in charge of investigating accusations made against these high dignitaries, but given how most representatives are crooks themselves, in recent years the committee turned out to be rather problematic (nicknamed the 'committee of absolutions').

The reform creates a Comisión de Aforados which will be in charge of investigating and indicting these aforementioned public officials (just replace members of the old Superior Council of the Judiciary with members of the National Commission of Judicial Discipline). In the case of disciplinary offences for misconduct, it will present its indictment to the Chamber (which will have the power to suspend or dismiss these officials) with a possibility for appeal to the Senate. For other crimes, the commission will present its case for judgement to the Supreme Court of Justice.

The new commission will be composed of 5 members elected by Congress for individual eight year terms from a list sent by the Council of Judicial Government following  a public competition.

The President retains a special fuero whereby he is investigated by a commission of the Chamber, indicted by the Chamber and tried by the Senate. Members of the new commission will be also be treated under this system if they face accusations. The Vice President, like ministers, governors and many other public officials, will now be tried, after indictment from the Attorney General, by the Supreme Court of Justice.

Representation for runners-up

The defeated runner-up in the presidential election will have a seat in the Senate. That candidate's running-mate in the election will have a seat in the Chamber of Representatives. Furthermore, the runner-up in a gubernatorial election will have a seat in the departmental assembly and the runner-up in a mayoral election will have seat in the municipal/district council.

Anti-corruption measures

Existing constitutional dispositions on public servants corruption and nepotism are strengthened. Public servants will not be allowed to appoint, nominate or hire family members, relatives; nor will they be able to appoint, nominate or sign public contracts with those persons who intervened in their appointments, and relatives of that person. This measure is designed to end the tradition of yo te elijo, tú me eliges in the public service.

Expansion of the silla vacía mechanism

A 2009 constitutional reform had created the so-called silla vacía mechanism, whereby any member of Congress criminally convicted or detained for membership, promotion or funding of illegal armed groups, drug trafficking, crimes against the system of democratic participation or against humanity would not be replaced and his/her seat would remain vacant. Furthermore, a lawmaker who resigned after he/she was formally involved in criminal proceedings the aforementioned crimes would not be replaced either. However, the reform was successfully watered down somewhat because it only applied if the lawmaker was sentenced and did not apply retroactively.

This year's reform changes the wording of the article in question around, and adds another type of criminal conviction which would result in an 'empty seat': fraudulent crimes against the public administration, ie corruption (dolosos contra la administración pública). The ban on replacements will be applied for all investigations which began after the 2009 reform.

If over half of the seats in a given constituency are vacant as a result, a special election will be called if there are over 2 years left in the term.

Electoral reforms

Ultimately, the scope of the reforms to electoral laws and constitutional disposition regarding political parties' participation in electoral events is fairly limited compared to what was proposed at first. The reform changes lots of words around in the text of the constitution, but don't amount to all that much.

There is now a constitutional obligation that parties select their candidates through 'mechanisms of internal democracy' (as defined by law and statutes) and that, in the composition of lists, the principles of gender parity, alternation (presumably alternating men and women on lists) and 'universality' be 'progressively observed'. An earlier proposal to create a constitutional obligation for gender alternation on lists, as is done in France, didn't make it through. Furthermore, according to the reform, a law will need to determine the 'predominantly public funding of campaigns'.

One of the most controversial issues of debate on the theme of electoral reform were closed lists. The 1991 Constitution, among many other things, greatly liberalized the electoral playing field by making it easier to create parties and limiting government intervention in the regulation of parties. This led to the fairly rapid collapse of Colombia's old two-party system, creating what many have called a volatile, chaotic and disorderly party system which has negatively impacted governance and the proper functioning of the political system. In 2003, Congress adopted some significant reforms which helped to control the chaotic party system. These reforms included forcing parties to run a single list for public offices (prior to that, parties could run as many lists as they wanted for the same office, so in 2002 you had 63 parties and 323 lists running for the Senate), a 3% threshold for senatorial representation, the d'Hondt method to favour bigger parties (instead of Hare) and toughening rules to limit floor-crossing.

Nevertheless, Colombian parties remain weak organizations built around personal and regional leaders rather than unifying national ideologies (a quick look at the results of the last congressional elections will tell you that quickly). The use of preferential voting - technically optional since parties decide whether or not their lists will be open or closed (in most cases, they're open) - has, according to a good number of critics, been a key factor in the highly personalized political system.

It is rather obvious that there's a major crisis of representation in Colombia. In the 2014 senatorial election, turnout was 43.73% and of those who voted, 21% (over 3 million voters) cast blank votes, invalid votes or unmarked ballots. As a result, while turnout was 43.7%, only 34.4% of potential voters across Colombia voted for political parties.  If, after that, you consider that with preferential voting, a lot of votes cast for parties went to candidates who were not elected, then you get a shockingly small number of voters who are actually represented by somebody they voted for (the most popular senatorial candidate on preferential lists won 194,523 votes, equivalent to 0.6% of eligible voters). Digging deeper, you'd need to mention how the personalized political system leads to clientelism, pork-barrel spending from Congress and corruption all reinforcing the crisis of representation.

Therefore, many supporters of this reform attempted to strengthen political parties (at the expense of individual candidates) and - being optimistic - reduce clientelism and corruption. The main measure proposed, and passed in first stage, was closed lists for elections. But there were lots of criticisms, the most valid one being that the parties would be excessively centralized. There were also disagreements on the timeline for introduction of closed lists - the text passed in first stage planned for a transition stage ending in 2022, during which time parties could still opt for preferential voting. This key measure failed to be adopted by the Senate in the sixth debate (ironically, in part because uribista senators - elected on a closed list in 2014 - voted against, because they didn't want to help the government), so the the existing system - parties may opt for preferential voting for their lists - stands.

The existing threshold is maintained: 3% for seats in the Senate (which, save for the 2 special indigenous seats, is elected in a national constituency), half of the electoral quotient for other elected bodies (except in 'constituencies' [=departments, for purposes of the Chamber] with only 2 seats, where it's 30% of the electoral quotient), and the complicated 'cifra repartidora' method for seat assignation (see the current Article 263-A for the explanation).

Finally, in terms of the electoral authorities, the members of the National Electoral Council (Consejo Nacional Electoral) and the National Civil Registrar (Registrador Nacional del Estado Civil) will no longer be allowed to be reelected.

Representation for the raizal of San Andrés

The indigenous raizal community of San Andrés and Providencia will be represented by one member, elected by islanders, in the Chamber of Representatives. The number of seats overall is unchanged, because Colombians abroad will now have one rather than two representatives.

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« Reply #2 on: June 20, 2015, 08:00:56 pm »

Reforms to the organismos de control

Colombia's organismos de control - 'control organisms' - are independent institutions which oversee public accounts, fiscal management, the behaviour of public officials, compliance with the Constitution, protect human rights, defend the interests of society and so forth. They are the Comptroller General of the Republic (Contraloría General de la República) and the Public Ministry (Ministerio Público), led by the Prosecutor General (Procuraduría General), not to be confused with the Attorney General (Fiscal General).

The changes to these institutions from the current reform are: the method of election for the Comptroller General (now by Congress from lists drawn up from public competitions, previously the list had been made up of candidates nominated by the three highest courts; the term remains equivalent to that of the President and may not be reelected), the method of election for departmental and municipal comptrollers (now by the departmental assemblies or municipal council following a public competition, previously the list had three names nominated by local courts) and the Ombudsman (Defensor del Pueblo) gains full administrative and fiscal autonomy from the Prosecutor General's office to whom he was hitherto subordinated.

Other limits on reelection and 'cooling off' periods

According to the reform, the judges of three highest courts, members of the National Commission of Judicial Discipline, members of the Comisión de Aforados, members of the National Electoral Council, the Attorney General, the Prosecutor General, the Ombudsman, the Comptroller General of the Republic and the National Civil Registrar may not be reelected/reappointed and they may not hold any of the other listed offices or be elected to an elected office except one year after leaving office. In some cases, like for the judges, the Attorney General or the Comptroller General, the ban on reelection already existed. But in all cases, the 'cooling off' period where they cannot be appointed to another of the listed offices or hold elected office in the year after leaving office is greatly expanded. This is meant to end with 'revolving door' practices, leaving one office for another.

The 'regional Senate', dead in a ditch

One of the other major reforms which passed in the first stage was the so-called 'regional Senate'. Currently, the Senate is elected in a national constituency, which means that many smaller (and, in every case, remote/peripheral) departments of Colombia are left without any senators representing them. Connected with the crisis of representation discussed above, voters in these departments are left further unrepresented by the lack of local senators, meaning that they lack the means to make their interests heard and arguably further distances them from the centre (there are also issues of natural resources and national sovereignty connected here).

The original proposal would have kept the Senate with 100 normal seats, but all departments with a population of less than 500,000 would elect one senator in a 'departmental constituency' (which would have meant 11 seats, for Guainía, Vaupés, Vichada, Amazonas, San Andrés y Providencia, Guaviare, Arauca, Putumayo, Casanare, Caquetá and Chocó) and the rest in the national constituency. Then it was seemingly replaced by 'territories of regional representation', creating four constituencies (Arauca/Casanare, Amazonas/Putumayo/Caquetá, Vaupés/Guaviare/Guainía/Vichada, San Andrés y Providencia), each with one senator. Now, after final debates and conciliation, this big idea failed to be adopted by the Senate in the sixth debate and to be dead in a ditch somewhere.
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