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 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 law allows.

 

         a)         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.

 

         b)         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.

 

         c)         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.

 

         d)         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 established.  To 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.[2]

 

         e)         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.

 

         f)         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 Police.

 

         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.