SEMANA/Justice | 10/14/2008 12:00:00 AM
What a shock!
A presidential decree of emergency powers seeks to put an end to the paralysis in the judicial branch. Some believe that the president exaggerated, while others, like the prosecutor general, think that it was necessary.
It had never crossed the minds of the government or of the striking workers that such a radical step such as this would be the path that Colombian President Álvaro Uribe would take to alleviate the critical situation facing the judicial branch. However it did occur to one person: Luis Carlos Sarmiento Angulo, the most important banker in the country.
On Tuesday, October 7th, during the annual assembly of the Asociación Nacional de Institutiones Financeras (ANIF) -the national association of financial institutions-, Sarmiento, who had invited the president to be his special guest, spent a good part of his speech highlighting the results from a study about the workings of justice in the country, which revealed a chaotic situation. “Any judicial process involving an ordinary labor dispute more than 50% of the time takes more than three years to be resolved.” He added that, “belated justice is an imitation of justice.” The arguments mentioned by the banking magnate painted a picture, which according to him required an emergency plan. “This should make us consider declaring emergency powers as it has happened in the past.”
Later Uribe made no mention whatsoever of Sarmiento’s comments in his speech, but at the end of the event he told the press that the idea could be considered. Two days later, from the Casa de Nariño presidential palace, the president announced Decree 3929 which declared emergency powers for 90 days. “Sarmiento was the inspiration,” said some sources of the Ministry of the Interior and Justice. Union sources suspect that the banker´s worry has to do especially with the thousands of judicial decisions which affect the banking sector’s operations.
For whatever reason, the decision was made and it is the most extraordinary measure that this government has taken so far to manage a crisis which, according to the numbers of affected judicial processes, is without a doubt serious but oddly is not perceived as such in the court of opinion. In fact, the judicial strike has not even been a page one story in Colombian newspapers more than a couple of times during this past month of paralysis.
“This is about giving powers to the judicial branch so that they themselves will solve the crisis,” said Uribe on Friday in Cartagena. The decrees authorize the Consejo Superior de la Judicatura (the Superior Council of Judicature) to act with regards to the strike and authorize notary publics to rule in decisions regarding family property, minors. and adoptions. The president said that some of the decrees expedited under the emergency powers will be presented to the Congress so that they become permanent laws. From the Casa de Nariño (the President’s office) they say that this measure is not aimed at resolving just the strike but also aims to resolve systemic delays, congestion and weakness of the functioning of the judicial branch.
What is unusual is that the justice reform proposed to Congress by Minister of Justice Fabio Valencia and that would involve changing the Constitution, does not serve this broad purpose but just addresses procedural issues such as the retirement age of judges.
Former Minister of the Interior Armando Estrada Villa believes that the judicial strike didn’t merit measures of such magnitude. Estrada says that the union’s petitions are warranted and that the government should use other procedures different from emergency powers. “It’s a labor dispute, not a public order problem, which the government should resolve with the workers. It is highly unorthodox to go down this repressive route to resolve this dispute.”
The prosecutor general (fiscal general) Mario Iguarán has been the strongest advocate of the government’s decision. He was the first to speak of “calamity” when referring to the effects of the strike on the prosecutor general’s office trials. Between last Thursday evening and Friday, the president and the prosecutor general spoke at least four times by phone to adjust the details of the measures. Still, sources at the prosecutor general’s office clarified that Iguarán supports the emergency powers exclusively to resolve the paralysis at the justice branch.
The Colombian Constitution establishes that decrees of emergency powers must be reviewed by the Court. The first two decrees expedited by the government will be studied by the Constitutional Court this week. Some former justices say that there are precedents that permit these decrees for affairs related to justice. However, the emergency decrees must be justified above all with regard to the particular situation at the time. That is, the Court in its review will have to determine whether law and order as well as institutional stability were under threat when the decree was issued. There are historical precedents of exceptional measures such as these that were later declared unconstitutional by the Court.
While the Court studies the constitutionality of the decrees, union workers are meeting to analyze the situation. As of this edition, the main unions planning to call for a national protest on the 16th of October and a national strike on the 26th. Tarcisio Mora, president of the trade union CUT (Central Unitaria de Trabajadores), believes that the government made the conflict even worse and fears that the measures will become repressive. “Are we to believe that a few decrees will resolve a justice problem that has gone on for decades?” he asked.
Union members sent messages and press releases to union organizations throughout the world and called some Democratic staffers in the United States Congress. They are convinced that is yet one more argument against the FTA (Free Trade Agreement).
The effect of this is only just now beginning to be felt. The government will continue to issue decrees and the workers will surely insist in their protests. Some predict that the president will win the contest and that the strike will be extinguished. Whatever happens, the only thing certain is that these emergency powers will be mixed into the already complex political situation of Colombia.