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CHAPTER III THE POLITICAL AND LEGAL SYSTEM IN COLOMBIA A.
EARLIER CONSTITUTIONAL
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.
B.
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
Assembly.
Horacio
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
Assembly.[1]
C.
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
and obligations.
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".
D.
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
125,000.
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
departments. Under
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:
Case area.
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
Affairs.
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 Ju | ||||||||
