doc. 22
30 June 1981
Original:  Spanish



E.       Rules of Constitutional exceptions


          I.        The State of Siege


          1.       The state of siege is a juridical institution provided for in the Constitution of Colombia, which is put into effect to deal with irregular situations in the public life of the country.  These would be external war and internal strife.


          The power to decree the state of siege is the responsibility of the executive branch, which must abide by certain legal requirements.  Under the terms of the constitutional structure, the state of siege is by its very nature temporary in duration and constitutes an exceptio nal system.


          2.       Although the state of siege had been implemented sporadically prior to 1948, from that year on it has been renewed periodically, changing its temporary nature into an almost permanent system, based on considerations aimed at combating political and common violence in rural areas and, in recent years, in urban sections of the country.  [44]/


          The power to enact the state of siege is contained in Article 121 of the 1886 Constitution.  According to this text, putting the state of siege into effect does not entail the suspension or abolition of constitutional provisions, including the individual guarantees set forth in that constitution.  [45]/


          The foregoing notwithstanding, it is believed that despite the constitutional prescription, systematic maintenance of the state of siege gives way to a system of exception whose indefinite duration affects the institutional functioning of the Colombian State of law.


3.       Article 121 has the following features:


a)       Declaration of the state of siege is a power given in the Constitution to the president of the Republic;


b)      It is an exceptional measure in that its application requires the existence of foreign war or domestic strife;


c)       The corresponding declaration of the state of siege must meet the requirement of being signed by all the ministers of government;



d)       Implementation of this state of siege requires the declaration that the public order is disturbed;


e)       Its area of application can be either total or partial: it is declared for the whole country or part of it;  [46]/



f)        Its area of application is also temporary since by its very nature it is transitory and is in effect until public order is re-established;


g)       By declaring the state of siege, the Government has, in addition to legal powers, other powers that the Constitution authorizes for times of war or disturbance of the public order and those which, in accordance with the rules accepted by international law, prevail in the case of war between nations;


h)       To make a declaration, the Government must first hear the Council of State, although it is not bound by the Council’s opinion;  [47]/


i)        Any decrees that the President of the Republic issued under the limits of the declaration of the state of siege are binding in nature provided that they bear the signatures of all the ministers.  These decrees may not abolish laws and the powers of the Government are confined to suspending laws that are incompatible with the state of siege. [48]/


j)        As concerns the legislative branch, the state of siege does not prevent normal operation of Congress.  The Congress meets on its own initiative in regular sessions and special sessions when the Government convokes it.  If the Congress is meeting when the state of siege is put into effect, the President of the Republic should immediately present to it a full statement of the reasons that led to the declaration.  If the Congress is not in session, the statement shall be presented to it on the first day of its regular meetings or special meetings immediately following the declaration.  In the event of external war, the Congress shall be convoked in the same declaration of state of siege and if this does not happen, the Congress may meet on its own;


k)       Decrees of any extraordinary nature that are issued under these circumstances shall cease to be in effect upon termination of the foreign war or domestic strife and the Government shall declare that public order has been re-established;


l)        The President of the Republic and the ministers are liable when they declare that the public order is disturbed, without foreign war or domestic strife having occurred.  They, along with all other officials, will be liable for any abuses that they may commit in the exercise of the power stemming from the implementation of the state of siege;


m)      Legislative decrees issued, during the state of siege shall be sent by the Government to the Supreme Court of Justice on the day following their issue.  The purpose of this is to have a definitive decision on their constitutionality.  If this duty of the Government is not complied with, the court shall take up the decree immediately on its own initiative.  This juridical control by the Supreme Court of Justice is also contained in the Constitution as one of the powers of the high court in the exercise of its constitutional jurisdiction as a safeguard for the integrity of the Constitution; 


4.       According to a ruling of the Supreme Court of Justice of October 30, 1978, the state of siege “is a special and temporary system provided for in the Constitution.  For that reason, it may not imply any substitution of its precepts.  The constitution is still in effect during the state of siege, with the restrictions that it establishes expressly.  That is the reason behind the control of constitutionality which is vested in the court with respect to the exercise of the powers inherent in that system.”  The same ruling holds that the Constitution contains three groups of rules:  “Those that are in effect for temporary constraints because of the state of siege, and those that allow for temporary constraints because of the state of siege, and those that allow the suspension of the exercise of certain rights and liberties for the same reason.  The latter two groups, obviously, are exceptional and are restrictive and temporary in their application.”  During the state of siege, the Government may suspend laws incompatible with that state but may not abolish them.  [49]/


          5.       Likewise the Supreme Court of Justice, referring to Decree 1923 of 1978 which promulgated the Statute of Security, ruled:  “At the present time some of the causes that motivated that law have disappeared but those causes invoked in the penultimate clause of the preamble set forth as the foundation for that decree remain.  These are causes such as frequent homicides, kidnappings and terrorist actions.  In Decree 1923 the Government asserts that the causes of the disturbance have worsened and justification for crimes have been advances, thereby creating a state of general insecurity, which affects the republican system and the rights of citizen.  This was the overriding consideration that the court has accepted or other occasions as the grounds for new regulations on the public order.  The aforementioned listing qualifies the regulatory content of the decree under review in such manner that its constitutional validity depends on whether the provisions suspending current law and those establishing temporary laws to replace them have some direct connection with the reasons behind the disturbances that their application seeks to eliminate, and on their compatibility with Article 121 and other constitutional provisions.”  [50]/


          6.       Furthermore, Article 76, No. 12, of the Colombian Constitution grants Congress the power to invest pro-tempore, precise special powers upon the President of the Republic when necessity so requires or public advisability recommends.  This power constitutes a delegation of legislative authority upon the executive branch which this branch exercise by issuing decree laws under special circumstances and of a limited nature regarding their subject matter.


          7.       Referring to the state of siege, in a recent study prepared at the request of the International Committee of Jurists, Dr. Alfredo Vasquez Carrizosa, the Chairman of the Permanent committee for the Defense of Human Rights in Colombia, maintained the following:


“The problem of systems of constitutional exceptions in states of law in Latin America takes on particular interest because it poses a contradiction that frequently exists between the formal constitution and the real constitution.  The former contains the guarantees and individual rights, impartiality of law and independence of justice, while the second openly contradicts it.


The State of Law, that is, the state under the formal Constitution, falls apart under circumstances that move the governments to suspend guarantees of liberty and to institute exceptional investigatory and trial procedures for crimes in military courts.  It cannot be said, then, that legality has disappeared in the country but that an exceptional state has been implemented.  More importance is attached to the words than to the essence of things and legal language is used to avoid saying that the State of Law has disappeared.


Colombia is one of the Latin American countries where this situation occurs.  There the formal constitution does not correspond to the reality of the state of siege which contradicts it and violates many of its essential articles, as has been the case of the Security Statute implemented through Decree No. 1923 of 1978.  Starting at this origin, the aforementioned decree was issued under a state of siege that had been in effect for two years to deal with a strike of social security services that bore absolutely no relation to provisions of these security statutes.


11.     The Security Statute


          1.       Decree No. 1923 of September 6, 1978 contains the Security Statute, “by which norms are establish for the protection of the life, honor and goods of persons and the security of the community is guaranteed.”  The decree went into effect on the day of its issued and suspended all legal provisions in contravention to it.


          This legal structure takes its foundation from the system of exceptional government in effect in Colombia.  It is issued by the president of the Republic in the exercise of his constitutional powers, especially powers conferred on him through Article 121 of the Constitution, that is, the provision referring to implementation and maintenance of the state of siege.


          2.       The Security Statute can be viewed as temporary in nature if one considers the circumstances that gave rise to it and the conditions that were behind its promulgation.  To a certain extent, the Statute is an orderly compilation of decrees issued by different governments to manage the state of compilation of decrees issued by different governments to manage the state of siege.  Despite its temporary nature, the Statute imposes lengthy punishments for certain crimes that affect the public order and extends military jurisdiction to trials of civilians who are not in the service of the armed forces. [51]/


          3.       The preamble of Decree 1923 brings up basically the following matters: That Decree No. 2131 of 1976 declared the public order disturbed and a state of siege to be in effect through the entire country.  As for the administration of justice, the President of the Republic was to see to it that justice was administered promptly and fully, Also, the President was to conserve public order throughout the entire county and re-establish this order wherever it was disturbed, and defend labor as a social obligation deserving of the state’s special protection.  It also said that the causes of disturbance to the public order have continued and worsened.  These causes were creating a situation of general insecurity and resulting in murders, were creating a situation of general insecurity and resulting in murders, kidnappings, sedition, riot or tumult, and terrorist actions aimed at producing the political effect of undermining the republican system in force and in justifications of crime.  These acts were assaults on the rights of citizen recognized in the Constitution and on the laws, which are essential for the operation and preservation of public order.  It said that security measures had to be adopted to maintain social order and peace in the territory of the Republic and that, pursuant to Article 16 of the Constitution, the authorities were founded to protect the lives, honor and goods of all persons.


          4.       The preamble of the Security Statute lists a number of crimes relating to the public order sets, long jail sentences, stipulates certain restrictions and gives the military criminal system jurisdiction over civilians through the procedure of oral court-martial.


          5.       Some of the sentences and crimes included in the Security Statute are the following: Imprisonment of eight to 12 years of any person who deprives another of his liberty to obtain unlawful advantage of gain or for purely political or publicity purposes; imprisonment of ten to twenty years for those who kidnap persons and, in the performance of the crime, cause injury or torture or who force the persons and, in the performance of the crime, cause demand money or other conditions to gain their release.  If the persons kidnapped or any other person is killed as a result of the kidnapping, the sentence will be imprisonment of twenty to thirty years.


          Imprisonment of eight years to 14 years or interdiction for the same time of rights and public functions for those who promote, lead or direct armed uprisings to overthrow the legally constituted government or to change or suspend any part or all of the existing constitutional system; imprisonment of ten to 15 years for those who are members of armed bands, gangs or groups who invade or assault residential areas, fields, farms, highways or public thoroughfares causing death, fire or property damage or who commit other crimes relating to such events; imprisonment of twenty to 24 years for those who cause or participate in disturbances of the public order in urban sectors or upset the peaceful performance of social activities, or who set fires or do away with persons; in this case, if the crime involves only personal injury, the sentence shall be one to ten years of imprisonment and one to five years in prison when these acts do not involve attacks on the life and integrity of persons; imprisonment of two to six years for those who cause damage to property through the use of bombs, detonating devices, or chemical or inflammable substances.  In this case, if it results in the loss of life, the sentence shall be imprisonment of twenty to 24 years.  If personal injury is caused, the punishment will be four to ten years.  If the perpetrators hide their identity in different ways such as by using masks, disguises or netting, the sentences shall be increased by one-third.


          The sentence shall be imprisonment of four to ten years, if one forces another person to turn over, send, send, deposit or put at their disposal goods, money or documents that produce legal effects and when the authors commit such acts with threats or violence, or impersonating public authority or using counterfeit orders, and for the purpose of obtaining some illicit advantage.  The same sentence shall be applied to whoever uses the same means to force another person to sign or destroy promissory or credit documents.


          Non-commutable confinement for up to one year is the sentence for the following and other cases: those who exert pressure on legitimate authorities to make a decision or who encourage rebellion, by occupying public places or offices of public or private agencies, those who incite to break the law or to disobey authorities or to ignore the legitimate order of competent authority, and those who use unjustifiably masks, netting disguises or other devices to conceal or alter their identity, and those who destroy or hide the license plates of vehicles.  Confinement for one year of any person who without legal permission fabricates, stores, acquires or bears firearms, ammunition or explosives, and confiscation of such weapons, confinement of one to three years, in the same case, if the firearm or ammunition is for the exclusive use of military forces.  [52]/


          6.       Some of the restrictions imposed by the Security Statute are the following: a) For as long as the disturbance of public order persists, the mayor of the special district of Bogotá, the governors, intendants and commissioners in the capitals of the individual sections, and the municipal mayors may decree curfews and ban or regulate the dispensing and consumption of intoxicating drinks and demonstrations, marches and public meetings; and b) for as long as the public order is disturbed, information, statements, communiqués or commentaries relating to the public order, the ceasing of activities or illegal work stoppages and strikes, or news items that incite to crime or make apology for it may not be transmitted over radio stations or television channels. [53]/


          7.       The procedures for prosecuting these crimes and for application of sentences are the following: a) in some cases, the military criminal justice system, through the oral courts-martial, which also has the competence conferred to it in current legal provisions in force.  In addition, those courts-martial can take up, under the Statute in question, crimes that are committed against the life and person of members of the armed forces and civilians in the service of the armed forces and against members of the Security Administrative Department (DAS) in acts of service and against public officials by reason of their holding office or as a result of the exercise of their functions; b) in other cases, the penalties must be applied by the commanding officers of brigade, any forces or air base, in accordance with the provisions of the Statute, and any resolution that may be issued can be appealed only through the appropriate court; and c) in other cases, the sentences must be handed down by a police station commander not lower than the rank of Captain, who will act for purposes of prevention in accordance with the same procedure used in the previous case.  In places where such police officers do not exist, mayors or police inspectors shall act.  [54]/


          8.       The Supreme Court of Justice declared constitutional most of the rules contained in Decree 1923 that promulgated the security Statute.  It also declared some of them unconstitutional, meaning that they were held to be without effect.  Judges Ricardo Uribe Holguin, Juan Hernández Saenz, José María Velasco Guerrero, Gustavo Gomez Velasquez and Jesús Bernal Pinzon differed with the majority of the Court and gave dissenting votes.  [55]/


          It should be pointed out that the opinion which by law, the procurator general of the Nation argued before the Supreme court of Justice in its review of Decree 1923 on the Security Stature, maintains the following:  “In conclusion, I believe that Legislative Decree 1923 of September 6, 1978, which issued standards for the protection of life, honor and property of persons and guarantees the security of community is constitutional.”  [56]/


          9.       In March, 1981, the full session of the Supreme Court of Justice reached a decision, repeated in the month of May, which examined the implementation of the security Statute in connection with the new penal code that contained lighter sentences for certain crimes.  This decision came about as a result of a par5icular case of a person sentenced for the crime of extortion who requested that the new penal code e applied to him.  According to the full body of the Supreme Court of Justice, the standards of the new penal code should be applied with respect to the Security stature on the basis of the constitutional principle of the Favorability of the penal law.


F.       Amnesty Law


          1.       In July 1980, the Colombian Government submitted to the Congress of certain crimes.  This government initiative was questioned by members of the guerrilla movements operating in urban and rural parts of the county, that is, the M-19 and the FARC, because they found several parts of it restrictive.  Later, when the matter was debated in the Chamber of Representatives, the draft was amended several times and adopted by that legislative body on December 10, 1980.  Having completed that legal step, the draft law went to the Senate of the Republic in special sessions held in January of 1981.  The draft became law on March 4, 1981.


          2.       The stipulations of the amnesty law are as follows:


Article 1  - Amnesty is granted to Colombians, who are perpetrators of or participants in acts that constitute rebellion, sedation or riot, and crimes related to the foregoing, committed before this law went into force.


The amnesty does not cover cases in which the crimes of rebellion, sedation or riot involved the kidnapping, extortion, homicide committed outside of combat, arson, poisoning of water sources and reservoirs and, in general, ferocious or barbarous acts.


Article 2 – The benefit that the foregoing article refers to shall be granted within the four (4) months following the entry into force of the present law to those who are in rebellion; after that period, and provided that the conditions set forth in Article 11 are present, request for amnesty shall be processed for those who are under arrest or sentenced for rebellion, sedition or riot and related crimes, with the exceptions referred to in Article 1.2.


Article 3   - Any person who wishes to avail himself of the benefit of amnesty must present himself to any political, judicial, military, diplomatic or consular authority within the four months following the entry into force of this law, and turn over any arms, ammunitions and explosives that he might, and make an express and individual statement to cease his participation in the punishable acts that the foregoing rule applies to.


Article 4 – Those who present themselves for request of amnesty may not be deprived of their liberty nor molested in their person or their property by reason of the crimes discussed in this law during the processing provided for to grant the amnesty.  Any official who does so will be committing the crime of arbitrary detention or abuse of authority, depending on the case, resulting in loss of employment and pecuniary punishment which may be between ten and twenty thousand pesos in current values.


Article 5 – The public official to whom the person requesting amnesty presents himself shall draft a writing statement that shall contain at least the following data:


1)       Name of applicant, last names, aliases, if any, domicile and note of the identification document presented;


2)       Statement of the person’s participation in the acts to which this law refers; information on the charges against him, if he is knowledgeable of them and his willingness to rejoin civil life;



3)       List of weapons, ammunition and explosives surrendered.  The participants shall sign the record, and the applicant’s fingerprints shall be taken.  The applicant will receive a record of this appearance and of the start of the amnesty proceedings.



Article 6 – Within five (5) days following the signature of the document, the latter shall be sent to the respective governor, intendant or commissioner.


Article 7 – Within ten (10) days of the entry into force of the present law, public officials who are hearing proceedings involving the crimes to which Article 1 refers, shall submit to the governors, intendants and commissioners the list of the persons involved in those proceedings.


On the basis of the reports received by the officials mentioned in the previous paragraph, the governor, intendant or commissioner shall send, within ten (10) days following receipt of the record, the documents to the competent public official.


If the report received reveals that there is no proceeding against the person, the official shall send the records to the Supreme Court of the Respective Judicial District.


Article 8 – If there is a case in progress against the person, once the documents are received, the trial judge will resolve directly the matter of amnesty within the fifteen (15) following days.


Article 9 – If there is no case in progress, the request for amnesty shall be resolved by the Superior Court of the corresponding Judicial District.


Once the Superior Court has received the documents from the penal decision section, it shall grant the amnesty directly.  The examining judge shall have three (3) days to submit the proposal and the section, two (2) days to decide.


The measure shall take effect as soon as the ruling is issued.


Article 10 – Request for amnesty presented to diplomatic or consular officials shall be forwarded to the Ministry of Foreign Affairs.  The Ministry, in turn, shall send it to the Ministry of Government, which shall make inquiries as to whether a proceeding is under way.  If a proceeding is in progress, the application shall be sent to the presiding officer.  If no proceeding exists, the application shall be sent to the Superior court of the Judicial District of Bogotá


Article 11 – The benefits of amnesty is hereby extended to Colombians who are currently deprived of liberty, being tried or have been sentenced for crimes of rebellion, sedition or riot and crimes involving the foregoing, except the crimes listed in Article 1.2 of this law.


Upon expiration of the term refereed to in Article 2, and depending on how well the present law has led to reestablishment of peace, the Government shall decree that the processing of grants of amnesty may be started for those detained, on trial or sentenced, who must submit an application within the next two (2) months.


Article 12 - The application for amnesty referred to in the foregoing article shall be decided by the presiding judge within ten (10) days following presentation of the application.


Any ruling denying the application for amnesty may be appealed by the accused, his agent or the representative of the Public Ministry.  If no appeal is made, the measures shall be referred for review.


Article 13 – A copy of the amnesty ruling shall be delivered personally to the beneficiary.


Article 14 – The ruling granting amnesty shall be done resadjudicata.


Article 15 – Subject to any penal actions that may be appropriate, officials failing to comply with the terms set forth in this law shall be liable to prosecution for misconduct.


Article 16 – The present law enters into force as of the date of its approval.  [57]/


          3.       The legal foundation for amnesty and pardon in Colombian’s legal system is set forth in the Constitution and also in the new penal code.  According to Article 76 of the Colombian Constitution, the national Congress has the power to decree amnesties or general pardons for political crimes and the president of the Republic, the power to apply the respective laws.  Furthermore, the president of the Republic has the power, under the terms of Article 120 of the Constitution, to grant pardons for political crimes in accordance with the law regulating the exercise of that power.


          4.       Referring to the draft amnesty law, before it was approved, the President of the Republic, Dr. Julio Cesar Turbay Ayala, stated the following is a speech given on December 31, 1980:


When the President of the Republic announced to his compatriots the bloodless return of the hostages, he issued an invitation to those in rebellion to rejoin democratic life and to compete through the ballot box for the favorable opinion of the Republic instead of continuing to drench Colombia’s soil with the blood of innocent people.


In taking that initiative, the Government submitted to the Congress for consideration a draft law on amnesty to which it is with it is obligated only by the commitment that it had voluntarily assumed with national public opinion.  For the Chief Executive, as the person responsible for public order, amnesty has to be granted on terms that serve the cause of peace and not to give the subversive movement new and dangerous encouragement.


The debate during the entire regular legislative session revolved around whether prisoners should be granted amnesty before those still in armed rebellion accepted the benefits that the law granted to them or, if, on the contrary, the first step should be the surrender of the combatants and the second, the freedom of those under arrest and sentenced.


At the end of the legislative session, a sufficient majority of the Chamber of Representatives gave its approval to the draft law, which, after being amended by a subcommittee of the Constitutional Committee of the Constitutional Committee, was accepted by the Government.


The criticisms of the amnesty by its eventual beneficiaries are not founded on reasons but on prejudgments.  They believe that it is a ruse and not what it actually is, a respectable decision of the Government to make an advisable democratic compromise under which reconciliation of the Colombian family is possible.


The Congress will be convoked into special session on January 20 and the amnesty draft will be included among those draft laws that will constitute the legislative agenda for that session. The President of the Republic, as the person responsible for management of public order, trusts the senators will give their approval to the project that originated in the Chamber of Representatives.


If this comes to pass, the President of the Republic reiterates his decision that once the draft becomes law and those reiterates his decision that once the draft becomes law and those still in rebellion have agreed to its terms, the next step will be to lift the state of siege and to return to full normality.


          5.       Furthermore, the Ministry of Justice of Colombia has states its opinion to the Commission in connection with the matter of amnesty and pardon.  It stated that both were appropriate “only for political crimes and occasionally those related to them which because of their characteristics could be described as what juridical doctrine has called political crimes.”  The document of the Ministry of Justice goes on to say:


At this time, as is well know both here and abroad, the Congress of the Republic is taking up a draft law on amnesty, a proposal made at the Government’s initiative, which has already been approved by the Chamber of Representatives and which will be placed before the Senate of the Republic for tits consideration during the upcoming special legislative session that will begin on January 20.  This is a draft law, which is the fruit of a full, just and fair agreement between the executive and the legislature.


In theory, the amnesty is the full forgiveness that the legislators accord to crimes committed, no matter whether a sentence has been handed down or not; if a sentence has been given, the amnesty is ground for extinction of the remaining punishment.


Pardoning neither ignores nor forgets the crime committed or the sentence given; it simply omits carrying out the sentence and therefore extinguishes the punishability and thus the pardon is a remission of debt.


The new Colombian Penal code, Article 78, says that amnesty and pardon include the possibility of extinguishing specifically the punishability.


As can be understood from the foregoing explanation, amnesty, by forgiving the crime, is broader and more generous than a pardon and of that reason the Government of Colombia, always respectful of human rights, faithful to a now long democratic tradition in the country and an example for the Americas and Europe, has wished to propose this amnesty to political criminals still bearing arms, thus forgiving them of their crimes so that they might rejoin civil life, thereby maintaining peace and public order.


          It should be pointed out that draft law was the subject of several controversies.  One in particular was that it was a general, unconditioned, amnesty.  In this respect, the Second Forum for Human Rights and General Amnesty, held in Bogotá in August, 1980 under the sponsorship of the permanent Committee for the defense of Human Rights, issued a document in which it made, inter-alia, the following comments:


The First consideration regarding the official proposal is that there are armed organizations in Colombia with sufficient power to mobilize policy toward unusual settlements such as those given in No. 19 of Article 76 of the constitution.  This applies only when the adversaries of the system or the government are no longer simple police cases and become forces capable of overthrowing the pre-established economic and legal order.  The power to grant amnesties is the exclusive right of Congress which cannot be delegated by that body, but no authority is better informed of the causes of the disturbances and the strength of those in rebellion than the President of the Republic to whom the Constitution gives the power to re-establish normality when it is disturbed.


The second consideration is that there are political prisoners who have been indicted, accused and sentenced in such large numbers that a radical measure such as the proposal to put and end to this situation and that they return once again to their normal work is recommendable.  This express acknowledgment by the Government clears up once and for all the official statements to the effect that the only person detained on these grounds is the President.


This correction is not made out of words but out of the fact itself of requesting suitable treatment for those who have been accused of being a group of bandits associated for the worst criminal undertakings.


A third consideration is that Colombia faces “serious reasons of public interest” and that it would be wise not only to forget attacks against the current regime, but also to remember the measure is necessary for social peace, which has been upset as much as political peace, even though all the spokesmen of the administration take great pains to show the contrary, that is, that Colombia is going through the best and most prosperous complaints, labor protests and this or that outbreak of terrorism.


Far-reaching solutions such as amnesty are not necessary when the people obey their leaders or when they tolerate them, and even much less when they collaborate with them.  There are undeniable conflicts between those in command and those who take their orders. [58]/


          7.       One of the amnesty law’s provisions that was a source of controversy is Article 11 which refers to Articles 1 and 4 of that legal text.  Dr. Alfredo Vasquez Carrizosa, the Chairman for the Committee for the Defense of Human Rights in Colombia, told this Commission that in this connection, the operating method included in the proposal produces qualifications and establishes a time period with a mechanism that limits the freedom of those in jail.  He added that this violates the corresponding constitutional principle because the law will not have the effect of a true amnesty in that the aforementioned Article 11 is a total denial of the right of amnesty as contained in the Colombian Constitution.  [59]/


G.       International Juridical Structure


          1.       Colombia, as a member state of the international legal community, is party to international juridical instruments that safeguard human rights.  It has participated in international meetings for the same purpose, among them, the meetings that adopted the Universal declaration of the Rights of Man and the American declaration of Rights and Duties of Man.  It also belongs to organizations that have the same purpose and whose fundamental statutes declare that governments are obliged to promote the dignity of the human person.  Two of these are the United Nations and the Organization of American States.


          2.       Colombia signed the American Convention on Human Rights adopted in San José, Costa Rica, on November 22, 1969, and deposited its instrument of ratification on July 31, 1973.


          3.       Similarly, the Colombian state is party to a number of international juridical arrangements on this matter.  Among these legal structures are, in addition to those already mentioned: a) The Pacts on Civil and Political Rights and the Pact on Economic, Social and Cultural Rights and its enabling protocol, approved by law No. 74 of 1968, and ratified on October 29, 1969; b) The Juridical Statute of Refugees; c) The Convention on Asylum; e) The Convention on the Rights of Women; f) The Convention on the Prohibition of White Slavery, Trafficking Women and Children and Exploitation of Prostitution; and g) The Convention on the Rights and Duties of States.


          4.       Furthermore, Colombia is a party to the following conventions of the International Labor Organization: Convention No. 1, hours of Work (Industry); Convention No. 2, Unemployment; Convention No. 3, Maternity protection Convention No. 4, Night Work (Women); Convention no. 5, minimum Age (Industry); Convention No. 7, Minimum age (seawork); Convention No. 8, Unemployment indemnity (chipwreck); Convention No. 9, Placing of Seamen; Workmen’s Compensation (Agriculture)’ Convention No. 13, White Lead; Convention No. 14 Weekly Rest (Industry);  Convention No. 15, Minimum wage (Trimmers and Stokers); Convention No. 16 Medical Examination of Young Persons; Convention No. 17, Workmen’s Compensation (accidents); Convention No. 18, Workmen’s Compensation  (occupational diseases); Convention No. 19, Equality of Treatment (Accidental Compensation): Convention No. 20 Night Work (Bakeries); Convention No. 21, Inspection of Emigrants; Convention No. 22, Seamen’s Articles of agreement; Convention No. 23, Repatriation of Seamen; Convention No. 24, Sickness Insurance (Industry); Convention No. 25. Sickness Insurance (Agriculture); Convention No. 26, Minimum Wage-Fixing machinery; Convention No/ 29, Forced Labor; Convention No. 30, Hours of Work (Commerce and Offices); Convention No. 52, holidays with Paid Vacation; Convention No. 62, Safety Provisions (Building); Convention No. 80, Final Articles Revision; Convention No. 81, Labor Inspection’ Convention No. 88, Employment Service; Convention No. 95, Protection of Wages; Convention No. 99, Minimum Wage-Fixing Machinery (Agriculture); Convention No. 100, Equal Remuneration; Convention No. 101, Holidays with Pay (Agriculture); Convention No. 104, Abolition of Penal Sanctions (Indigenous workers); Convention No. 105, Abolition of Forced Labor; Convention No. 106, Weekly Rest (Commerce Offices); Convention No. 107, Indigenous and Tribal peoples; Convention No. 111, Discrimination (Employment and Occupation); Convention No. 116, Final Articles Revision; Convention No, 87, Freedom of Association and Protection of the Right to Organize; Convention No. 98, rights to Organize and Collective Bargaining.


          5.       It should also be pointed out that in connection with this topic, since 1914 the Supreme Court of Justice of Colombia has declared itself without standing to preside in public actions of unconstitutionality brought against laws that approve public treaties.  It has granted preference to international law over internal law.


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[44]   In 1948, after the Liberal Leader Jorge Eliecer Gaitan was assassinated on April 9, Colombia fell into a situation of political upheaval, which led to rigid enforcement of the state of siege.  This exceptional system has been maintained almost without interruption since those events.  When General Gustavo Rojas Pinilla led a coup d’etat on June 13, 1953, the state of siege was extended and representative political institutions remained closed, with laws issued on the basis of special powers From 1957 on, when the National Front was organized and the political arrangement was formalized that institutionalized the alternation of two traditional parties, the liberal party and the Conservative party, in the exercise of public power, the state of siege was still in force. This state of siege has continued until today, with short periods of suspension.  The agreement adopted by the National Front the same year.  The two traditional political parties, on the basis of that agreement, had been governing jointly by taking turns in the presidency of the Republic from 1958 to 1974.  During this time, the presidents have been Misael Pastrana Borrero.  From 1974 to 1978.  The President was Alfonso López Michelsen, and since August 7 of the latter year, the president has been Julio César Turbay Ayala.

[45]   Article 121 has its antecedents in the very evolution of the Colombian Constitution, albeit with some variations in the writing of its text.  The state of siege or the granting of ordinary or special powers in cases of necessity, emergency or public disorder was referred to in the constitutions of 1821, 1832, 1843, 1858 and 1963.  Article 121 of the 1886 Constitution was the object of reforms, amendments and additions in 1910, 1960 and 1968.

[46]   In a ruling of July, 1948, the Supreme Court of Justice stated:  “The Constitution invests in the President of the Republic special powers when he has declared the state of siege throughout the whole territory or part of it and does not say that he has certain powers when the state of siege is total and other lesser powers when it is partial.  As a result, the President of the Republic can lawfully suspend, through decrees signed by all the ministers, the effect of laws throughout the entire nation even though the state of siege is partial if he believes that those laws are incompatible with the need to re-establish public order.”

[47]   Article 141 of the Political Constitution.

[48]   In a ruling of the Supreme Court of Justice of March, 23, 1981, its ruling of May 21, 1970 was confirmed by making the following statements, in addition to others:   “Just as sit was conceived by the law-makers and as the courts have upheld it, during the state of siege, the rule of the Constitution and other laws is retained.  The only difference is that the government can suspend any laws that are incompatible with the state of siege and take measures with force of law that are essential for the re-establishment of public order, provided that they abide by the limits established in the Constitution in accordance with the powers given by the Constitution which prevail for times of disturbances of the public order or which are granted by special laws or others envisaged in international law.”   “As a basic mission, it is the duty of the President of the Republic to conserve public order and to re-establish it where it has been disturbed, for which purpose he may always call upon the police power and may assume direct control of it (Article 120, Nos. 6, 7 and 8) and in cases of state of siege, as is well know, and makes the President and the Ministers liable when they declare the public order disturbed without there being a case of external war or internal strife or for any abuse in the exercise of those powers.”

[49]   Article 214 of Political Constitution reserves to the Supreme Court of Justice the power to make the final decision on whether the laws and decrees issued by the Government are constitutional.  This rule further provides that the Procurator General of the Nation must always intervene in legal action questioning this constitutionality.  In the cases covered by Article 121 and 122, any citizen may bring suit to defend or object to the constitutionality of the decrees to which those articles refer.  Article 122 gives the President of the Republic the power to declare the state of emergency when events other than those originate a state of siege occur and which perturb or threaten to perturb the economic or social order of the country or which amount to public calamity.  During this state of economic emergency, the Government may not impair the social rights of workers set forth in earlier laws.

[50]   Ruling of the Supreme Court of Justice of October 30, 1978.  In that ruling, the court invokes the arguments that it issued in its ruling of May 14, 1970, on the constitutional validity of the decrees relating to the state of siege.  In this connection it argued as follows:  “That which determines the constitutional validity of the aforementioned decrees in the relationship between the subjects they deal with and the disturbance of order.  That partition confines the Government’s capacity strictly to legislative decrees issued during the state of siege and everything this ordered with the force of law shall have constitutional support provided that it is consistent with public tranquility, either to maintain it or to prevent it from being altered, or to re-establish it, and provided, naturally, that such rules do not conflict with texts of the Constitution that remain in force even during the state of siege.  The study of constitutionality that is entrusted to the court objective examination of the tie that exists between measures decreed by the Government and the needs of the disturbed public order.”  (Ruling of May 14, 1979, G.J. No. 2338 of 1970 p. 154).

[51]   In his public statement on the occasion of the issued of Decree 1923, the Minister of Government, Dr. German Zea Hernández, made the following points, in addition to others:  “The Commission designated by the President of the Republic prepared a preliminary draft of the statute which was revised carefully by him and discussed at length by the Council of Ministers.  The statute includes several provisions government in the exercise of powers conferred by Article 121 of the national Constitution, as well as others that were considered necessary for the objectives sought.  In particular, sentences for simple kidnapping, that is kidnapping done simply for political or publicity purposes, were lengthened.  Heavier sentences were imposed when the kidnappings sought unlawful advantage and gain and involved harm or torture of the kidnapped person, and established even more severe penalties if the kidnapping resulted in the death of the kidnapped person or others.  Also extended were the sentences for crimes of uprising or rebellion, extortion, disturbances of public order, which included cases in which there were material losses, fires, injuries or deaths.  Terrorism is also punished with severe sentences for perpetrators who use bombs or explosives and are even greater when the death of one or more persons is caused.  The statute, as will be seen, takes up other antisocial or criminal behavior and established fitting punishment.  In certain cases, it calls for trial of the crimes and the issuing of sentences under the military criminal justice system.”

[52]   Articles 1 through 7 and 10 of the Security Statute.

[53]   Articles 8 and 13 of the Security Statute.  As concerns the communications media mentioned above, the Ministry of Communications would punish violators through resolutions, accompanied by statement of reasons, which may be appealed only through the appropriate court.  The punishment will be imposed in accordance with Law 74 of 1966 and Decree 2085 of 1975.  Article 14 of the Security Stature stipulates that the Ministry of Communications has the power, under the terms of Decree 3418 of 1954, to recover temporality on behalf of the state the full control of several or all of the frequencies or channels used by private persons whenever it is necessary to constrain the disturbance of public order and re-establish normal conditions.  Any broadcasting licenses that the state recovers shall be understood to be temporarily suspended.

[54]   Article 8, 11 and 12 of the Security Stature.  Article 15 of that Statute states that the punishments discussed in Articles 209, 210, 211, 212 and 213 of Title V of the Second Book of the Criminal Code for conspiracy or instigation to commit a crime shall be from one to eight years of imprisonment.

[55]   Ruling of the Supreme Court of Justice of October 30, 1978 which states the following in the final section:  “in view of the above, the Supreme Court of Justice, meeting in full session, based on the study by its constitutional section and having heard the opinion of the attorney General of the nation, DECIDES to declare constitutional Article 1 of Decree 1923 of 1978, ‘which issued rules for the protection of life, honor and property of persons and guarantees the security of the community’ although its last clause is not constitutional; and Articles 2, 3, 4, 5 and 6; likewise, it declares constitutional Article 7, with the exception of clauses d and f, and the part of clause a which reads: ‘…or to distribute in them subversive propaganda or to affix in such places outrageous or subversive written statement of drawings…’; and declares also constitutional Articles 8, 9, with the exception in the latter of the term, ‘found or not,’ and 10, 11, 12, 13, 14, 15 and 16 of the aforementioned decree.”

[56]   Note No. 345 of September 29, 1978, to the Supreme Court of Justice from the Attorney General of the Nation.

[57]   “Anales del Congreso,” news organ of the legislative chambers, year XIII, No. 116, Bogotá, December 11, 1980.

[58]  Some congress members proposed basic changes in the proposed amnesty law, as the newspaper, El Tiempo, of Bogotá put it in its edition of September 19, 1980:  “In making their motion to pass an amnesty law for the armed rebels, congressman Simon Bossa López and Dario Ortiz Vidales suggested substantial changes in the government’s proposal.  In addition to other ideas, they recommended extending the benefit to those in jail and to grant general pardons to ‘political prisoners already sentenced.’  In the proposal, which contains more than fifty pages, the liberal representatives propose specifically granting amnesty of a general nature since they believe that this is allowed in the Constitution itself of the Republic.  The draft amnesty law was submitted by the Government to the Chamber of Representatives for the purpose of settling the serious problem of subversion.  As they explained to this newspaper, the purpose of the makers of the motion was to achieve a compromise agreement that would incorporate the different ideas on the topic of amnesty and pardon which have been advanced by different sectors of public opinion.”

[59]   Dr. Hernando Hurtado, a member of the chamber of Representatives, raised several legal objections to the amnesty proposal.  One of these was a request to delete Article 11.  In his objections he raised the following points:  “As concerns the first clause, there is no reason to extend to prisoners, either on trial or sentenced, that which has already been granted in a general manner to all ‘the perpetrators of or participants in acts that constitute rebellion, sedition or riot and related crimes..” in the first article.  The second clause is unconstitutional because power to grant amnesties is exclusively reserved to the Congress of the Republic and may not be delegated.  The Congress may not say” Amnesty is granted, the government will decide whether it will be applied or not.  The Congress has several powers which it may not delegate, powers that are exclusively its own.  Among them is the issue and granting of laws on amnesty.  Just as the Congress cannot delegate to the President its power to approve or reflect treaties or conventions, it may also not delegate or empower another authority to grant amnesty laws.  The laws must be followed by the authorities.  They cannot be issued while at the same time saying that the President or some other authority will decide whither to apply them or not, as is done in this article and in the second article of the draft, especially when dealing with an amnesty law.  Amnesty is confused here with pardon.  Article 119, No. 4 of the Constitution provides that the President of the Republic has the power to “grant pardons for political offenses in accordance with the laws regulating the exercise of this power.”  The pardon is granted by the President.  The amnesty law cannot depend on whether the President decrees or not the start of its implementation.”