Petro vs. Colombia — can international bodies save Bogota’s mayor?

Posted on Jan 30 2014 - 9:44am by Rico
Gustavo Petro

As Bogota Mayor Gustavo Petro’s appeal against his recent dismissal reaches the ears of international courts of justice, the increasingly high-profile, intricate and often confusing web of judicial and political proceedings remains a headache to most.

Since his controversial dismissal and 15-year ban by Colombia’s Inspector General Alejandro Ordoñez on December 9, Bogota’s mayor has been fighting tooth and nail to appeal what he considers to be gross misconduct and a violation of his fundamental rights. Using all the resources at his disposal to remain in office, at the end of last year Petro approached the Inter-American Commission on Human Rights (IACHR) to ask the international entity to assess his situation, and implement measures in his defense.

MOREInternational court to examine expulsion of Bogota mayor

This Tuesday, Petro finally received a long-awaited letter from the IACHR, asking him to deliver back the necessary details on his case – such as – “what is the current state of the decision handed down by the Inspector General,” and “could the said decision be suspended?”

Queries which, truthfully, not many people know the technical answer to. Colombia Reports attempts to explore similar questions, and in so doing shed some much-needed light on the historic case of Petro vs. Ordoñez.

Who does Ordoñez think he is?

The first point that needs to be clarified regards the man who claims to have the power to overthrow Petro. The Inspector General’s Office (IGO), which is presided by the opinion-dividing Public Minister Alejandro Ordoñez, is an independent public institution charged with overseeing the conduct of public officials.

When he assumed his seat at the head of what is one of Colombia’s two Control Institutions, Ordoñez inherited the power to sack any public official that he saw fit – a fact that now comes as a surprise to many who dispute the extent of the Public Minister’s power, although a simple read-through of the Constitution would have left them with little doubt.

Article 278 of Colombia’s highest set of laws states that the functions of the Inspector General include “Discharging from office, following a hearing and on the basis of justified reasons, any public officials who are guilty of any of the following offences: an evident violation of the Constitution or the laws […]”

In the words of Constitutional Law professor at EAFIT University Nataly Montoya, however, “this isn’t just any mayor.”

Petro’s status means that he cannot, in fact, be treated like any public official – he occupies the second most important seat in Colombia behind President Santos.

For which reason there exists yet another exception to his case, this time regarding who ultimately has the final say.

Although it would be ridiculous for the President of Colombia to have to sign off every decision that Ordoñez makes – up until now the Inspector General has already imposed sanctions on more than public officials – when it comes to the dismissal of the mayor of Bogota, former Constitutional Court magistrate Alfredo Beltran affirms that the head of state becomes the one with the executive power.

“The Inspector General has disciplinary authority but he himself cannot dismiss [Bogota’s mayor],” Beltran said, quoting Article 323 of the Constitution, which explains the irregularity of the case. “Who would have to apply the destitution is the President of the Republic.”

Ordoñez’s capacity to dismiss the Bogota Mayor has furthermore been subject to major grey areas within Colombia’s own Constitution.

Constitution vs. International Law

In Colombia there is a very grave contradiction between the [Inter] American convention … and the [Colombina] Constitution,” Montoya told Colombia Reports.

Whereas the Inter-American convention — which Colombia signed in Costa Rica in 1969 and incorporated into its national legislation in Law 16, 1972 — states that an official elected by public vote can only be dismissed following criminal proceedings before a judge – our legal system allows this dismissal to be carried out by an administrative officer such as Ordoñez.

The question then is which is more powerful – Colombia’s Constitution or the international law that it has committed itself to?

The dilemma is that while Article 4 of the Constitution sets itself out as the “supreme law,” further down, Article 93 reads that “International treaties … that recognize human rights … have priority domestically.”

This unfortunate clash is an issue that the IACHR will have to analyse and pass judgement on, hopefully in the near future. Whatever conclusion they come to, the ball will then fall into Colombia’s field.

What can the IACHR do for Petro?

What Petro’s lawyers are hoping for is that the seven members of the IACHR make the decision to invoke precautionary measures in favour of the mayor’s claims of human rights violations against him by Ordoñez, and request the suspension of the IGO’s verdict.

To break it down, when Ordoñez announced Petro’s ousting and 15-year ban from office, the mayor travelled to the Washington DC to ask the IACHR for protection as a democratically elected official, which supposedly abused his political rights to be elected.

“The effect of what the IACHR says is that the process [of Petro’s dismissal] will be frozen,” Beltran explained. “If this is the case, the mayor will continue in office.”

While some claim that the IACHR’s powers can go no further than providing the country with a firm recommendation, Beltran claims that as a signing member of the Organization of American States (OAS), whatever decision the IACHR make is binding for Colombia.

“The Constitutional Court says that when precautionary measures by the IACHR, or provisional measures by the Inter-American Court of Human Rights are dictated in order to protect a fundamental right, these are obligatory for all [member] states,” Beltran said.

“They’re not mere suggestions or requests that might or might not be fulfilled. They have a binding force.”

So too affirms the current President of the Inter-American Court of Human Rights, Dr Humbierto Sierra, who during a recent interview with Colombian newspaper El Espectador claimed that the IACHR’s precautionary measures would be of “obligatory completion.”

Beltran explains that the forms of “protection” that the IACHR might impose on the Colombian state are not expressly determined.

“What has been asked is that the disciplinary process [that would see Petro leave office] be suspended,” he could affirm.

Is it likely that the IACHR will conclude that Ordoñez’s move was down to political persecution against the former left-wing militant? The most important point of debate, according to Beltran, is whether or not Petro’s failed reform to Bogota’s waste collection system was truly a “violation of the Constitution or the laws.”

“I would say that not only is the decision [to fire Petro] disproportionate, but in essence there’s an overhanging debate as to whether or not the fault actually exists,” Beltran told Colombia Reports. “Because we could simply be seeing a judgement over administrative management.

“A simple administrative mistake in itself is not an offence … And this would obviously not lead any kind of penalty.”

Will Colombia listen?

Ordoñez has already publicly declared that any decision by an international court of justice will not shake his decision nor waiver his resolve. Nevertheless, it would be up to the state, and thus the president, to resolve the international dispute should the Inter-American Court of Human Rights assume the case Petro vs. Colombia.

MORETensions between Colombia’s chief prosecutor and inspector general continue

This could go two ways. Some might argue that, in the wake of the coming elections, President Santos does not has the nerve to challenge the steadfast position of the Inspector General, weaken the authority of Colombian law and bow down to international pressure all at once.

Furthermore, the current head of state has on the separate occasion of the disputed marine territories between Colombia and Nicaragua, defended the nation’s rights against international courts by declaring the Colombian Constitution to be above any other authority.

For a country to flat out ignore the rulings of this international court would not be a first.

In fact, in what is possibly the most similar case to that of Petro to have been presented before the IACHR, the Mexican citizen Jorge Castañeda Gutman approached the IACHR in 2005 to file a lawsuit against his home country for banning him from presidential elections.

While the IACHR qualified the case as a violation of political rights and granted the requested precautionary measures, Mexico – which is also an OAS member state – disregarded the rulings of both the IACHR and consequently the Inter-American Court of Human Rights, claiming that the measures were not applicable to political rights.

Should Colombia go down the same route and ignore the IACHR, the Commission would then hand the case over to the Inter-American Court of Human Rights, which could choose to dispense provisional measures in the aim of recovering the state of things before the violation of Petro’s rights took place.

This trial, however, could take years, by which time any verdict would only act to repair the damage done through acts like public apologies, or compensations.

In the meantime, the hundreds of writs of protection that have been submitted by individuals in protest – written appeals that any citizen can use to claim protection of their fundamental rights, and which must be reviewed by a judge within 10 days – continue to delay the destitution process within the country’s borders, with Wednesday seeing the State Council take in Petro’s personal writ for evaluation.

Somewhat more surprisingly, perhaps, on the same day a group of Colombian citizens — including the former mayor of Bogota Jaime Castro — submitted a letter to the IACHR demanding them to reject Petro’s appeal as it would set a “bad precedent” for Colombia, or in other words tarnish the credibility of the country’s judicial system for years to come.

Petro’s case is nearly the only one of its kind to have been presented before the IACHR, and with its lack of antecedents and lack of priority over a 8,000-case waiting list , some people believe the process is looking slow to say the least.

Colombia will have to sit tight and wait for the IACHR’s verdict to determine the fate of Petro in this ultimate battle of authority.

Sources

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