Salvador Herencia Carrasco | firstname.lastname@example.org
The Special Jurisdiction for Peace (SJP) is the judicial branch of the Integrated System of Truth, Justice, Reparation and Non-Repetition (Integrated System) which was established in the Peace Agreement signed between Colombia and the FARC-EP. This Agreement was approved by Congress in November 2016. The SJP has the mandate to investigate, prosecute and convict those with the gravest responsibility for crimes perpetrated in the internal armed conflict, which lasted more than fifty years.
To achieve peace, a constitutional amendment was adopted in 2012 to allow the government to negotiate a possible agreement with the FARC and other illegal armed groups. In 2016, a new constitutional amendment was adopted to prioritize the adoption of the legal framework to implement a peace agreement. This means that the Integrated System, *including the SJP, has constitutional status. In Colombia, laws implementing the Constitution are called statutory laws (leyes estatutarias), with special hierarchy and safeguards. Any amendment or modification to these laws requires a qualified majority in Congress as well as a mandatory constitutional review by the Constitutional Court before being signed into law.
My purpose is not to bore you with Colombian constitutional procedural regulations but to help clarify the debate around the SJP that has taken place during the past few months and what this could mean to the Peace Process. Consequently, it is important to understand the existing protections provided by statutory laws.
Statutory Law of the SJP: A necessary tool to provide legal certainty, due process and accountability
The SJP requires a procedural law to regulate its operations. This includes the competences of each chamber, the legal recourses on behalf of victims, the rights of defendants, as well as sentencing schemes, among other topics. Some of these provisions are established in others laws; however, this bill regulates all the procedures applicable to the SJP.
In August 2017, the government led by former President Juan Manuel Santos submitted to Congress the procedural bill of the SJP, which was approved in November of that year. The Constitutional Court determined its constitutionality, albeit with certain modifications, in August 2018. However, the full text of decision C-080/2018 was only published last December.
After the review of the Constitutional Court, the President can sanction the law or veto it. Due to the nature of a statutory bill and its mandatory prior judicial review, the President may only object to it for political reasons. It is important to remember that in August 2018, Mr. Ivan Duque assumed the Presidency, whose political party, the right-wing CDU led by former President Alvaro Uribe Velez, has been critical of the Peace Agreement.
In a televised address on 10 March, President Duque partially vetoed the Statutory Law of the SJP. By making the case against apparent political inconveniences, the President sent this bill back to Congress. Since then, public opinion has been divided over the future of the SJP and the peace process as a whole. What followed has been almost two months of public debate and accusations from all sides of the political spectrum. On 8 April, a majority in the House of Representatives rejected the vetoes presented by the Executive, leaving the final decision to the Senate.
The end of this story is Colombian magical realism at its best. On 30 April, 47 senators voted to reject the objections presented by the President. However, the speaker of the Senate and member of the ruling party considered that the required quorum to reject the objections was 48 votes. On 2 May, senators of the opposition left the plenary to prevent a new voting from taking place, considering that the first voting was enough to reject these objections. Now, the Constitutional Court must decide how many votes were required in the Senate to reject the presidential objections to the statutory bill of the SJP.
Whether it was 47 or 48 votes, this shows the divided political landscape regarding the peace process. For the purpose of the SJP, this single vote difference is fundamental. Under Colombian law, if Congress rejects the objections, the President must sanction the law. If the President still refuses to sign the bill, then the President of Congress is authorized to sanction it into law.
It is clear that the government does not have the necessary votes to accept the political objections, but does the opposition have the numbers to reject it? The Constitutional Court will have the final say on this.
The nature of the presidential objections and the road ahead
As stated above, a statutory law goes through a constitutional review before its approval. Because the Court has the mandate to uphold the Constitution, the President is obliged to follow the decisions and interpretations made by the Constitutional Court.
The government presented six objections to the bill. These objections refer to the following issues: (i) compensation to victims by members of FARC-EP; (ii) the prioritization of cases by the SJP; (iii) verification procedures by government agencies to determine who is a member of illegal armed groups; (iv) practice of evidence on extradition cases; (v) limits to investigations carried by the Attorney General (Fiscalía General) on persons being investigated by the SJP; and (vi) the participation of parties that are not members of the Armed Forces of the FARC-EP.
Dejusticia, a Colombian think-tank, presented to Congress a report concluding that the first four of the six political objections listed above had already been addressed and decided by the Court in its decision C-080/2018. It is important to understand that in complex scenarios like the implementation of the peace process, the rulings of the Constitutional Court are the mandatory legal companion to a bill. Therefore, presenting objections to matters already decided by the Court would be illegal. The last two objections could be solved by a mere interpretation of other laws.
The reasons behind these objections are unclear, particularly if the Court had previously analyzed in detail all the provisions of the statutory bill of the SJP. Some speculate that these were made in order to satisfy the political base of the party. Others consider that this was a maneuver to test majorities in Congress. Whatever motivation existed, the outcome would have been the same: a mandatory constitutional review by the Constitutional Court.
These past two months have been hard on the peace process. There is no shutdown of the SJP but this legal uncertainty has created doubts for victims and people that have voluntarily surrendered to the SJP. One needs a set clear of rules to impose criminal penalties. Although the system is not at that stage yet, this is just one of many examples that make the case for the need for clear procedural law.
The government that negotiated the peace agreement adopted a series of constitutional and legal protections. Their purpose was to shield it from political turmoil like the one that we have seen in the past months. Some people viewed it as critical when former President Santos deposited the Peace Agreement before the United Nations. Having the support of foreign governments and a Security Council mission monitoring the implementation of the peace agreement is proving to be an effective shield safeguarding the progress so far.
For academic reasons, I was in Bogota during the first days of May. As I was reading the news and looking at the billboards on the streets in favor and against the SJP that illustrate this post, I remembered a member of the Selection Committee asking me what I could bring to the table if I were selected as amicus to the SJP. My answer was “prudence and distance”.
This post has focused on the presidential objections of the statutory bill of the SJP and the role of the Constitutional Court. And perhaps that is not bad news. Despite the political and personal confrontations that we have seen, this past few months have also showed a great support from civil society organizations, academia, foreign governments and the United Nations. All have expressed, in unequivocal terms, the need to have a fully functional SJP.
I believe the SJP will have, sooner rather than later, a statutory legal basis. These debates are necessary to test our commitment to a peace process. This process can be heartbreaking. The current legal uncertainty can create distrust among victims and those members of the Armed Forces and the FARC-EP that are voluntarily surrendering to the SJP. However, in the long run, it is important to have these discussions and to have a system of checks and balances in place.
As former President Santos says on his memoirs regarding the peace process, “La Batalla por la Paz”, this Agreement was not going to easy and it was focused around the centrality of victims. The fact that Colombia is discussing the future of the SJP in procedural and constitutional terms is positive and provides us with a small glimpse of capacity-building.
Salvador Herencia Carrasco is the Director of the Human Rights Clinic at the Human Rights Research & Education Centre of the University of Ottawa. He is part of an Amicus for the Colombian Special Jurisdiction for Peace. The views and opinions expressed in this post are those of the author and do not necessarily reflect the official policy or position of any of the organizations listed above. Twitter: Sherencia77