THE POLITICAL AND LEGAL SYSTEM IN COLOMBIA
PROVISIONS THAT PROVIDED THE FRAMEWORK FOR THE POLITICAL, LEGAL AND
HUMAN RIGHTS SYSTEM IN COLOMBIA
The 1886 Constitution of Colombia examined under the section on
the Legal and Political System of Colombia in the Commission's 1981
report, was based on earlier constitutions in Colombian history:
the Constitutional Act of the Independent Free State of El
Socorro, August 15, 1810; the Constitution of Cundinamarca, March 30,
1811; the Constitution of the Republic of Tunja, December 9, 1811; the
Constitution of the State of Antioquia, March 21, 1812; the
Constitution of the State of Cartagena de Indias, June 15, 1812; the
Constitution of the Republic of Cundinamarca, July 18, 1812; the
Constitution of the State of Mariquita, June 21, 1815; the
Constitution of August 30, 1821; the Constitution of April 29, 1830;
the Constitution of the State of Nueva Granada, February 29, 1832; the
Constitution of Nueva Granada, April 20, 1843; the Constitution of
Nueva Granada, March 20, 1853; the Political Constitution for the
Granadian Confederation, May 22, 1858, and the Constitution of the
United States of Colombia, May 8, 1863.
The Constitution of the Republic of Colombia adopted on August
4, 1886, was amended by, inter alia, Legislative Act No. 3 of
October 3, 1910, Legislative Act No. 1 of August 5, 1936, and
Legislative Act No. 1 of February 16, 1945.
HISTORY OF THE NATIONAL CONSTITUTIONAL ASSEMBLY
The history behind the new Constitution of Colombia adopted in
1991 is as follows: via
Decree No. 1926, dated August 24, 1990, the Government of President César
Gaviria Trujillo convened a National Constitutional Assembly.
On December 5, 1990, the people of Colombia elected the 70
members of that Assembly. It
was an historic election in that the voters and candidates included
former members of the guerrilla movement, recently reassimilated into
mainstream society, among them the leaders of the April 19th Movement
(M-19). The outcome of
the election was as follows:
Partido Liberal: 25
Assemblymen; Alianza Democrática M-19: 18; Movimiento de Salvación
Nacional: 11; Partido Social Conservador: 5; independent Conservative
Party slates: 4; Unión Patriótica: 2; the Indigenous Movement: 2;
the Evangelical Movement: 2; Esperanza, Paz y Libertad: 2; Partido
Revolucionario de los Trabajadores: 1; Movimiento Indígena Quintín
Lame: 1. These last two
assemblymen were elected but do not have the right to vote in the
Serpa of the Liberal Party, Antonio Navaro Wolff of the M-19
Democratic Alliance and Alvaro Gómez of the National Salvation
Movement were elected presidents of the National Constitutional
THE 1991 CONSTITUTION
After 6 months in session, on July 5, 1991, the National
Constitutional Assembly enacted the new Constitution, which consists
of 380 articles and 60 transitory provisions.
This report contains a very brief description of the new
Colombian Constitution, emphasizing the main features of the political
structure of the Colombian State. Also mentioned are the human rights provisions contained in
that Constitution, with an indication of the specific article wherein
each human right is addressed.
Under Title I, on the Fundamental Principles, articles 1
through 10 provide the following frames of reference:
Colombia is a State organized as a single, decentralized,
participatory and pluralistic republic, founded upon respect for
human dignity, the work and the solidarity of its people and to
ensure that the general welfare prevails. The essential functions of the Colombian State are to serve
the community, promote general prosperity and guarantee the
effectiveness of the principles, rights and duties established in the
Constitution; to enable all its citizens to have a voice in the
decisions that affect them and in the economic, political,
administrative and cultural life of the Nation; to defend the Nation's
independence, preserve its territorial integrity, and ensure peaceful
coexistence and justice; it adds that the authorities of the Republic
are instituted to protect the life, honor, property,
beliefs, and the other rights and freedoms of all residents of
Colombia and to ensure that the State and private parties fulfill
their social obligations.
The fundamental principles set forth in Articles 1 and 2 of the
Constitution contain the bases upon which the rule of Colombian law
and respect for and defense of human rights rest: that sovereignty
resides exclusively in the people from which the public power emanates
and that it is the people who exercise sovereignty, either directly or
through their representatives.
Article 4 provides that the Constitution is the law of laws and
that in the event of some incompatibility between a provision of the
Constitution and a law, the provisions of the Constitution shall take
precedence; under article 5, the State recognizes the primacy of
the individual's inalienable rights, without discrimination of any
kind, and protects the family as the basic institution of society.
Other basic principles are that individuals who have violated
the law or the Constitution are answerable exclusively to the
Colombian authorities; that public servants are answerable for failing
to perform their functions or overstepping their authority; that the
State recognizes and protects ethnic diversity; that it is the
obligation of the State and of its parts to protect the property and
cultural heritage of the Nation; that foreign relations are based on
national sovereignty, respect for the self-determination of peoples
and on the recognition of the principles of international law to
which Colombia is bound; that Spanish is the official language of
Colombia, but the languages and dialects of ethnic groups are also
official within their territory and education in communities with
linguistic traditions shall be bilingual.
Title II of the Colombian Constitution contains an impressive
catalogue of human rights, which are enumerated in detail in the
corresponding section. They
appear in Chapter 1 (articles 11 to 41) under the heading of
fundamental rights; Chapter 2 (articles 42 to 77) contains the social,
economic and cultural rights; Chapter 3 (articles 78 to 82) contains
the collective rights and environmental rights; Chapter 4 (articles 83
to 94) refers to the rights to protection and enforcement of the
rights described earlier, while Chapter 5 (article 95) concerns duties
Particular mention should be made of the fact that under
Article 93, international human rights treaties ratified by Congress
are preeminent and may not be restricted in states of emergency.
It also provides that the rights and duties established in the
Constitution shall be interpreted in accordance with international
human rights treaties ratified by Colombia, adding that the rights
and guarantees contained in the Constitution and in international
conventions shall not be understood as a denial of other rights that,
being inherent in the human person, are not expressly
stipulated in either the Constitution or those conventions.
Title III concerns nationality, citizenship, aliens and
territory. Title IV
concerns the political rights and their exercise.
Its Chapter 1 regulates the methods of democratic participation
(voting, plebiscite, referendum, public consultation, open town
meetings, legislative initiatives and removing elected officials from
office); in Chapter 2 of this title, the Constitution regulates
political parties and political movements, while Chapter 3 concerns
the status of the opposition. The
Constitution repeals the bipartisan system of government instituted in
1958 with the so-called "National Front".
POLITICAL-LEGAL STRUCTURE OF THE STATE
Like the 1886 constitution it replaced, the 1991 Constitution
establishes three branches of government:
legislative, executive and judicial.
It also establishes independent autonomous organs with specific
functions. Colombia's constitutional history has been one in which the
executive branch of government has always been preeminent.
However, the present Constitution tries to balance the
relationship between the executive and legislative branches by
increasing the latter's powers. Accordingly,
the executive's authorities to legislate were curtailed and the
Congress was given greater political control over government.
The governance and functions of the legislative branch of
government are in article 114 and in articles 132 to 187.
The Legislative Branch of Government, addressed in Title
VI under the heading of Legislative Branch (articles 132 to 187), is
composed of senators and representatives elected directly by the
people to four-year terms of office that begin on July 20 following
their election. Their
basic function is to amend the Constitution, make laws and exercise
political control over the government and the administration.
Its members represent the people and must consider justice and
the common welfare. They
are answerable to both society and to their constituents in
discharging their duties. The Senate and the House of Representatives together
constitute the Congress, which has its seat in the capital of the
Republic. Congress has
two regular sessions each year when it is a single legislature.
The Senate is composed of 100 members elected nationwide, while
the House of Representatives, whose members are elected in territorial
and special elections, has two representatives per territorial
district and one for every 250,000 inhabitants or fraction over
One of the Colombian Congress' functions is to make the laws
and, through them, to exercise the following functions: interpret,
amend, and repeal laws; issue codes in all fields of law and amend
their provisions; establish the rules by which government must operate
when exercising the inspection and oversight functions stipulated in
the Constitution; invest, for up to six months, the President of
the Republic with specific, extraordinary authorities to issue norms
that have the force of law when necessity so requires or the
public interest so counsels. These
authorities are not to be conferred for purposes of issuing codes,
statutes, charters, etc.; approve or disapprove the treaties that
the Government concludes with other States or with entities of
international law. By
a majority of two thirds of the members of both houses and for grave
reasons of public interest, it may grant amnesties or general
pardons for political crimes.
Should the persons pardoned or given an amnesty be relieved of
any civil liability vis-a-vis private parties, the State shall be
obligated to pay any damages due, etc.
The Executive Branch is composed of the President of the
Republic, who is head of government and supreme administrative
authority, and of the ministers and directors of government
Article 188, the President must not only observe and enforce the
Constitution and the laws of the Republic but must also guarantee the
rights and freedoms of all citizens.
Articles 115 and 188-227 concern the structure of the executive
branch of government.
Within the Office of the President of the Republic, there is an
Office of the Presidential Adviser for the Defense, Protection and
Promotion of Human Rights, organized as follows:
This area acts upon the complaints of human rights violations
filed at the national level. The
work is performed jointly with the competent authorities, especially
with the Office of the Attorney General and the Judiciary.
For cases reported by international organizations, an
inter-institutional working group has been formed and must ascertain
the status of the investigations and compile any information needed.
Through the Municipal and Regional Area and the
municipal authorities that represent it, the job of defending,
protecting and promoting human rights is performed on a national
scale. There is also a Human
Rights Promotion and Dissemination Area.
The International Area involves functions established
under Article 2, paragraph 3 of Decree No. 2111, to address requests
that governmental and nongovernmental international entities make of
the Colombian Government in connection with the human rights situation
in the country and the obligations it has undertaken by virtue of
treaties and conventions signed and ratified by the State.
This function is performed jointly with the Ministry of Foreign
The Judicial Branch is covered under Title VIII, under
the heading Judicial Branch. Title VIII contains 7 chapters: 1, General Provisions; 2, The
Regular Courts; 3, Administrative Courts; 4, The Constitutional Court;
5, The Special Courts; 6, The Office of the Prosecutor General; 7, the
Superior Council of the Judiciary.
The judicial branch of government is governed under Article 116
and articles 228 to 257 of the Constitution.
Under Article 116, the administration of justice is the
responsibility of the Constitutional Court, the Supreme Court of
Justice, the Council of State, the Superior Council of the Judiciary,
the Office of the Prosecutor General of the Nation, the tribunals and
judges. That same article
also mentions military criminal justice.
Congress is to exercise certain judicial functions.
Under Title VIII, the administration of justice is a public
function; the decisions of the judiciary are independent and its
proceedings are to be public and ongoing, with the exceptions that the
The Supreme Court (Ordinary Jurisdiction) is the highest
of the ordinary courts. It
consists of 23 magistrates elected by the Court itself to an
eight-year term from slates submitted by the Superior Council of the
Judiciary. The members of
the Court sit on the full bench and on the Civil, Criminal and Labor
Appeals benches. While it
is an appellate court, it also investigats and tries the President,
ministers of state, the attorney general, the public defender, and in
general high-ranking officials and members of Congress for any
punishable offense of which they stand accused.
The Council of State (Administrative-Adjudicatory
Jurisdiction) is the Government's advisory body on matters of
administrative law and the supreme court for litigation in
administrative law. It
consists of 26 magistrates elected by the Council of State to an
eight-year term, from slates containing no fewer than three
candidates, which the Superior Council of the Judiciary shall refer to
it. The members of the
Council of State shall serve through the full chamber, the chamber for
administrative law and the advisory and civil service chamber.
The Administrative-Adjudicatory Chamber shall take
cognizance of actions seeking nullification, on grounds of
unconstitutionality, of any decree issued by the National Government
that does not fall within the jurisdiction of the Constitutional Court;
it shall also hear cases arguing the illegality of national
administrative acts issued in any branch of government and by private
bodies performing public functions; it shall hear cases to which
either the nation or a territory or decentralized entity is party and
cases wherein national bodies are seeking a ruling on government
authorities. The third
section of the Administrative-Adjudicatory Chamber deals with direct
reparations for government acts, omissions or operations, which would
include proceedings in which the State is being held responsible for
a human rights violation.
The Constitutional Court (Constitutional Jurisdiction)
also has an uneven number of members, as determined by law.
Its magistrates are to represent various areas of the law.
They are elected by the Senate to an eight-year term and are
not eligible for re-election. The functions of the Constitutional Court are as follows:
to decide cases brought by citizens arguing the
unconstitutionality of acts that amend the Constitution, whatever
their origin, on the grounds of procedural error; to decide, before
the people speak, whether a referendum or a constitutional assembly to
amend the Constitution is constitutional on purely procedural
grounds; to decide on the constitutionality of referenda on laws and
on the public consultations and national plebiscites (in these last
two cases, the actions can only assert procedural error in the
convocation and conduct of the public consultation and plebiscite); to
rule on cases filed by citizens claiming the unconstitutionality of
laws on the grounds of both material content and procedural error;
to settle suits brought by citizens arguing the unconstitutionality of
decrees issued by the government with the force of law based on
Article 150, paragraph 10, and Article 341 of the Constitution, on the
grounds that they are materially or procedurally flawed; to rule on
the exemptions covered in Article 137 of the Constitution; to hand
down a definitive ruling on the constitutionality of the legislative
decrees issued by the government pursuant to articles 212, 213 and 215
of the Constitution; to issue a final ruling on the
constitutionality of bills or draft statutes that the Government
has challenged as unconstitutional because of their material content
and procedural error; to review, in the manner prescribed by law,
court decisions on the protection of constitutional rights with a
view to determining the scope of those rights; to rule definitively
on whether the international treaties and the laws that approve
them are exigible. The
Government shall refer those treaties and the laws that approve them
to the Court within six days of the latter's enactment.
Any citizen may become a party to an action before this
Court to argue for or against the constitutionality of the treaties
and the laws approving them.
If the Court declares them to be constitutional, the Government
may proceed to the exchange of notes; otherwise, the treaties shall
not be ratified. When the
Constitutional Court declares one or several provisions of the
multilateral treaty to be non-exigible, the President of the Republic
may only indicate consent if the necessary reservation is stipulated.
The work being done by the new Constitutional Court, whose
magistrates were sworn in as recently as March 1992, deserves a
special word of recognition from the Inter-American Commission on
Human Rights for the work it is doing to defend, strengthen and
consolidate Colombia's constitutional system.
The Office of the Prosecutor General.
The Office of the Prosecutor General of the Nation consists of
the Prosecutor General, the attorneys delegates, and other officials
that the law prescribes. The
Prosecutor General of the Nation shall be elected to a four-year term
by the Supreme Court of Justice, from a slate submitted by the
President. He/she may not be reelected.
The Prosecutor General must have the same qualifications
required to be a magistrate on the Supreme Court.
The Office of the Prosecutor General is part of the judiciary
and is to have administrative and budgetary autonomy.
The Prosecutor General of the Nation and his/her delegates have
competence throughout the national territory.
It is the function of the Office of the Prosecutor
General--either ex officio or in response to a complaint filed--to
investigate crimes and to bring charges against the suspected guilty
parties with the competent courts and tribunals, except in the
case of service-related crimes committed by members of the armed
forces or National Police on active duty, in which case it shall:
1) ensure that those suspected of violating the criminal law
appear before the courts, adopting the measures necessary to that end.
Also, if need be it shall take steps to see to it that those
whose rights have been violated by the commission of the crime have
their rights restored and are properly compensated for any damages
caused; 2) evaluate and close the investigations conducted; 3) direct
and coordinate the criminal police functions performed, by law, by the
National Police and other agencies; 4) protect the victims, witnesses
and parties in a legal proceeding; 5) perform the other functions that
the law stipulates.
The Office of the Prosecutor General is by law required to
investigate that which is favorable and that which is unfavorable to
the accused, and to respect his fundamental rights and procedural
guarantees. It is the
duty of the Prosecutor General of the Nation:
to investigate and indict, where appropriate, high-ranking
officials who enjoy constitutional privilege, with the exceptions
stipulated in the Constitution; to appoint and remove, in keeping with
the law, the employees in his government department; to help shape the
State's policy toward crime and to submit bills in that regard; to
invest public entities with temporary authority to serve as criminal
investigations police, under the responsibility and functionally
answerable to the Office of the Prosecutor General of the Nation; and to
provide the government information on the investigations being carried
out, whenever necessary to preserve public order.
The Commission believes that the Office of the Prosecutor
General may represent a significant change in Colombian criminal
procedure. The existing
criminal procedure has two stages: the
investigatory stage where the evidence is compiled; and the trial
itself, where the criminal responsibility of the accused is
understand the function of the "fiscal" [prosecutor], one
must recall that under the previous system both phases were performed
by independent judges: an examining judge investigated the crimes denounced and if
he found sufficient cause requested that another judge, the trial
judge, bring the suspected guilty parties to trial.
Under the new criminal procedure, it is not the judge, but
rather the prosecutor who must investigate and indict suspected
criminals after which judges will determine whether or not they are
guilty. Under the
previous system, there was no single authority who took responsibility
for the criminal investigation as a whole, so that each examining
magistrate conducted his or her own investigation of the complaints
that came to his or her office. The
system did not necessarily have specialists in specific subjects or
someone to coordinate the many authorities involved in criminal
investigations (the DAS, F2, DIJIN, the Technical Corps of the
Criminal Investigations Police, etc.) that assisted them in their
functions. All these
difficulties were compounded by the complexity of the cases and by the
fact that the judges were not protected.
During its first year, the Office of the Prosecutor General
managed to handle 186,000 of the 325,000 cases it received when it
started to function, which made the system 50% more efficient than it
had been. Criminal
investigations rely on more technologically sophisticated methods,
prosecutors' performance is more closely scrutinized and the procedures have been streamlined. As for the protection of human rights, the report on the
first year of the Prosecutor's Office stresses that it handles
requests from governmental and nongovernmental, national and
international organizations concerning criminal investigations being
conducted into human rights violations anywhere in the national
territory and constantly monitors each investigation to make certain
that the relevant constitutional and legal principles are being
observed. It states that
thus far, it has or is investigating 1,724 cases involving human
rights violations of various types:
700 cases of disappearance, 782 cases of murder, 70 cases of
mass murder, 20 cases of torture, 69 cases of threats, 50 kidnapping
cases and 28 cases of arbitrary arrest, routed through various
government agencies, particularly the Ministry of Foreign Affairs and
the Office of the Presidential Advisor for Human Right, and 45 cases
reported by nongovernmental organizations such as Amnesty
International, Justice and Peace, the Andean Commission of Jurists,
and so on.
The Superior Council of the Judiciary.
Chapter 7 makes provision for a new body called the Superior
Council of the Judiciary. It
has two chambers: the
administrative, consisting of 6 magistrates (elected as follows: two by the Supreme Court, one by the Constitutional Court and
three by the Council of State), and the disciplinary jurisdictional
chamber, composed of 7 magistrates elected by Congress.
The functions of the Superior Council of the Judiciary are as
follows: to administer
the judiciary service; to prepare lists of candidates for appointment
as members of the judiciary and to send those lists to the body that
must make the appointment (the exception is the military criminal
courts, which are governed by their own rules); to examine the conduct
and punish misconduct by members of the judiciary and practicing
attorneys, as required by law; to monitor the performance of law firms
and offices; to prepare the proposed budget of the judiciary that is
to be submitted to the government and to execute it as it is approved
by Congress, and to settle any conflicts of competence that may arise
among the various jurisdictions.
Military Criminal Courts.
Article 221 of the Constitution of Colombia reads as follows:
Military courts martial or tribunals shall take cognizance, in
accordance with the provisions of the Military Penal Code, of
service-related crimes committed by members of the public forces while
in active service. The
military criminal jurisdiction in Colombia has been organized in
accordance with the provisions of the Military Penal and Criminal
Procedure Code, issued on December 12, 1988, through Decree Law No.
2550, which entered into force in June 1989.
Under the previous Code of Military Criminal Justice, issued
through Decree Law No. 250 of 1956, military courts were competent to
hear cases of common crimes committed by military while in active
service in times of war, armed conflict, disruption of the public
order or internal disturbance. Under
the new criminal code, however, the scope of military criminal justice
is as follows: the
provisions of this code shall apply to military in active service who
commit a military or service-related common punishable offense, within
or outside national territory, with those exceptions stipulated in
international law. It
shall also apply to officers, subordinates and agents of the National
Military Criminal Jurisdiction consists of the Military
Superior Tribunal, the lower courts, the chairmen of the courts
martial and military criminal pretrial staff.
The Military Superior Tribunal is composed of a General
Commander of the Armed Forces, who presides; there are another 15
magistrates, 10 prosecutors for all the chambers and the subordinate
staff required by law. The
Government may add additional staff when necessary.
The magistrates and prosecutors are appointed by the government
to five-year terms.
The voting results by party were as follows:
Liberal, 1,055,033, 28.3, 24; M-19, 950,174, 26.82, 19; MSN,
555,403, 15.68, 12; PSC, 388,842, 10.9, 8; UP, 82,728.3, 2; OTHERS,
509,529, 14.3; Yes votes: 2,696,826;
No votes: 71,836; Total number of voters: 3,541,480; 93.90% of the
votes were tallied. Total
number of votes: 3,438,418, 100.00%.