Colombia Digest II: The FARC’s new name, ELN ceasefire, the disintegration of a criminal organization and shifting Court balances

Summary: the ‘new’ name of the FARC’s new party, upcoming bilateral ceasefire with the ELN, a major criminal organization leader killed and the Constitutional Court’s shifting balances

The FARC’s new name

The foundational congress of the FARC’s new political party, the capstone in their transition from illegal guerrilla group to legal democratic political actor, ended on September 1 with a large open-air public concert in the Plaza de Bolívar, the main square of downtown Bogotá.

The ‘new’ name of the party will be Fuerza Alternativa Revolucionaria del Común (something along the lines of ‘Alternative Revolutionary Force of the Commons’ or ‘Common Alternative Revolutionary Force’). The abbreviation, therefore, remains the same – FARC (without the -EP added in 1982). The name was adopted with 628 votes against 264 for Nueva Colombia, a name suggested by the FARC’s commander Rodrigo Londoño, alias ‘Timochenko’. The question of the name opposed two viewpoints. On the one hand, a majority of the new party’s base (ex-guerrilleros, urban militias, civilian sympathizers, members of the FARC’s old clandestine party, the PC3) wanted to keep the familiar abbreviation FARC as a sign of either nostalgia or continued loyalty to the ‘revolutionary ideals’ and what they still consider to have been a just cause. This position, which won out, was supported by ‘Iván Márquez’ and others like ‘Jesús Santrich’. On the other hand, ‘Timochenko’ and other members of the old Secretariat wanted to adopt a new name to project a new, conciliatory and ‘open’ image. This side, however, seemingly won with the FARC’s new logo, a red rose with a stylized star in the centre – the red rose is, of course, the familiar symbol of social democratic and socialist parties in Europe (and the rose in the fist is the logo of the Socialist International). The FARC’s new red rose logo is similar to the logo of the Danish Social Democrats, Estonian Social Democrats, Andorran Social Democrats and several others.

The name FARC carries very negative connotations, and opinions on the party’s ‘new’ name have been largely negative, considered to be a ‘political mistake’. An editorial in the Spanish conservative newspaper El Mundo said that the FARC ‘mocked the victims’ (an editorial in the Spanish centre-left newspaper El País, on the other hand, called it ‘another positive step’). Although the FARC have done public acts of contrition, sought forgiveness from the victims of some of their most atrocious war crimes (the Bojayá massacre of 2002, for example) and their commitment to peace and reconciliation appears to be genuine, they are not ashamed of their history and still believe that theirs was a just cause (and one which remains valid, but to be achieved through votes rather than bullets). Despite apologizing for some of their crimes, the FARC are not revising their history or engaging in self-criticism. For the base, the name remains a powerful marker of group identity and internal cohesion in an uncertain and disorienting transition from illegality to civilian life. For the general public, however, this same name is associated with terrorism, bombings, kidnappings, war crimes and the armed conflict in general. That said, the new party, regardless of its name, would have remained associated (or stigmatized) with this history. The choice of the name, more than anything, will just reinforce previously held opinions and views of the FARC – for the base and allied sectors, the continued validity of their ‘revolutionary’ aspirations; for opponents (who weren’t going to vote for them anyway), the arrogant lack of humility and introspection.

In Colombia and Central America, demobilized guerrilla groups which became political parties all retained their ‘war names’. In Colombia, the M-19 guerrilla became the Alianza Democrática M-19 (AD M-19) and the EPL guerrilla became Esperanza, Paz y Libertad (EPL) as a political party. In Central America, the FSLN (Nicaragua), FMLN (El Salvador) and URNG (Guatemala) not only kept the same abbreviations but also the same names.

Public concert on Sept. 1, 2017 (source: @FARC_EPueblo)

Although the new FARC declares itself to be a revolutionary party, the actual content of its party statutes (not yet published, but a draft version was obtained by El Espectador) will be far less dogmatic and more ‘reformist’ than ‘revolutionary’. Unable to settle on a single ideological reference, the new party will not define itself as a ‘Marxist-Leninist party’ and will instead acknowledge the internal diversity of political outlooks (“derived from critical and libertarian thought” etc.). The message will focus on the defence of the peace agreement and the construction of peace at the local level, with a general populist anti-establishment discourse against “the powerful who have governed and usurped the wealth we produce” and corruption. The revolutionary content is mostly anti-establishment populism with some class struggle rhetoric, and with little (for now) concrete proposals of their own. La Silla Vacía wrote that the new party has not explained its own ideas “beyond defending the idea that the peace agreement is an opportunity to democratize and re-conciliate the country, […] and a list of ideals of a country more similar to Norway without specifying the way to achieve it.” 

According to El Espectador, there are two major tendencies or factions in the new party: a more ‘dogmatic’ line, which supported keeping the name FARC and a revolutionary/communist orientation, led by Iván Márquez, Jesús Santrich and Mauricio Jaramillo; and a ‘conciliatory’ line, which wanted a new name and a broader political movement, led by ‘Timochenko’, Pablo Catatumbo, Carlos Antonio Lozada and Pastor Alape. That same article also underlines the ‘democratization’ of the FARC, an organization until recently run under military discipline and democratic centralism.

Although the party explicitly said that its objective is to win power and to be part of government, for now its real political focus will be on local power in the 2019 local and regional elections rather than national power in the 2018 congressional and presidential elections. The FARC will be guaranteed ten seats in Congress, regardless of its results, in the 2018 and 2022 congressional elections. For 2018, the new party’s strategy remains to participate in or support a ‘transition government’ which supports the peace agreement. This will be difficult, because nobody wants to be seen with them. No presidential candidate attended the congress (although two sent their wishes) and very few congressmen came – the most prominent one being Polo senator Iván Cepeda. The only major politician who took a picture with the new party’s leaders at the congress was former president Ernesto Samper (1994-1998), who recently returned to Colombia after being Unasur secretary-general and is working on building an electoral coalition to defend the peace agreement in 2018.

The new party also wants to influence the elections in the 16 new transitional peace constituencies which are intended to provide representation to social movements and community organizations (victims’ groups etc.) in regions which suffered heavily from the armed conflict (for the next two congressional terms); existing parties and the FARC’s new party will be banned from running candidates in these constituencies. The FARC has existing social bases of support – notably with cocalero organizations and peasant movements – in some of these regions (like Catatumbo and parts of Meta and Caquetá), and the new party will clearly seek to build on these relations with civil society and social movements in the regions. The FARC’s explicit intention to ‘influence’ the election in these 16 new single-member constituencies will reinforce uribismo‘s claims that these new seats are really 16 disguised extra seats to the FARC.

The congress didn’t announce the definite list of names which will represent the new party in Congress after 2018. In my last post, I mentioned some of the names which have been circulating – all recognized members of the ex-guerrilla’s Secretariat and/or peace negotiation team in Cuba. The names will be determined by the ‘national assembly of the commons’ (the highest leadership instance, made up of delegates from local assemblies) or the ‘national political council’ (the executive bureau).

The new party will be led by a collegial leadership of 111 members. Iván Márquez, the FARC’s main negotiator in Havana and one of the most well-known public figures of the organization, won the most votes (888) of any candidate. Pablo Catatumbo was second with 836 votes and Jesús Santrich, the only one in top 8 who wasn’t in the old Secretariat, was third with 835 votes. Timochenko, the ex-guerrilla’s top commander, won 820 votes in fifth place. The 111-member leadership includes 26 women, the most voted woman being ‘Sandra Ramírez’, the widow of the FARC’s late commander-in-chief and founder Manuel Marulanda ‘Tirofijo’, with 802 votes, followed by Victoria Sandino (797). Tanja Nijmeijer, a Dutch woman who joined the guerrilla and whose story has received some international media attention, will also be a member of the new leadership. The leadership also includes former military commanders and civilian sympathizers (from the Communist Party, Marcha Patriótica, human rights activists, trade unionists).

The new FARC begins its life as a legal political party with only 12% of favourable opinons (and 84% unfavourable) according to the last Gallup poll and over 70% saying that they would never vote for one of its candidates. On the other hand, the same Gallup poll showed that traditional political parties are even more unpopular than the FARC (10/87 favourability) at the moment (and the FARC’s favourable numbers have increased from 3% in 2015, and peaked at 19% in February 2017). The new party will struggle to gain popular acceptance and support, particularly given that it is showing little remorse and doing little in the way of introspection (and that its figures in Congress will probably be its former top commanders who will need to answer for their crimes before the new special jurisdiction for peace in 2018). On the other hand, the new party has one advantage: it will be one of the most disciplined, structured and internally coherent political parties alongside Álvaro Uribe’s CD and the Christian MIRA party.

Ceasefire with the ELN

President Juan Manuel Santos announced on September 4 a temporary bilateral ceasefire with the Ejército de Liberación Nacional (National Liberation Army, ELN) – Colombia’s other major guerrilla group (but smaller and less well known than the FARC). It will come into force on October 1, lasting for 102 days until January 12 with further extensions conditional on advances in the negotiations and fulfillment of commitments. The announcement came days before Pope Francis’ arrival to Colombia (on Sept. 6).

Formal peace negotiations between the Colombian government and the ELN began on February 7, 2017 in Quito (Ecuador) after three years of exploratory talks. Negotiations have been deadlocked from the beginning, with the ELN showing little apparent willingness for peace, continuing attacks on police and the military, oil pipelines (one of the historic trademarks of the ELN), kidnappings (two Dutch journalists were kidnapped, though later released, in June) and strengthening their role in criminal economies (drug trafficking, illegal mining, extortion etc.). The government had been insisting that the ELN stopped kidnappings, attacks on infrastructure, laying anti-personnel mines and recruitment of minors; the ELN insisted that the government commit to protecting social leaders who are being assassinated or threatened.

In announcing a bilateral ceasefire, the two sides agreed to eight commitments, four from each party. The ELN agreed to suspend kidnappings, attacks on infrastructure, recruitment of minors and the laying of anti-personnel mines. The government agreed to strengthen the early warning system to protect social leaders, provide health services to ELN prisoners in jails, implement a law which ‘decriminalized’ social protests and to hold public forums in Quito as part of the peace negotiations. The ceasefire will be monitored by independent observers from the UN and will be supported by the Catholic Church.

With negotiations deadlocked and the guerrilla continuing its attacks, the peace process with the ELN is very unpopular – over two-thirds of respondents in recent polls have said that talks with the ELN were on the wrong track. Juan Manuel Santos, whose image cannot afford another controversial peace process, had been looking for a ‘big breakthrough’ in Quito to revive the talks.

Armed presence of the ELN, 2016

In the peripheral regions where the ELN is active – Chocó, Nariño, Cauca, Catatumbo, Arauca, Bajo Cauca (Antioquia) and southern Bolívar – the news of the ceasefire is greeted with very cautious optimism. In the Chocó, a conflict with the Clan del Golfo for territories ‘vacated’ by the FARC has caused a humanitarian crisis with over 4 thousand people displaced. Local community leaders and the Church had been clamouring for a ceasefire since the beginning of the year, and a delegation recently travelled to Quito to expose the dramatic situation of the department to ‘Pablo Beltrán’, the ELN’s chief negotiator. However, there is a fear that the local ELN front – which has shown itself to be disobedient to central command’s orders – will not respect the ceasefire and that other illegal armed groups will take advantage of the situation to expand their territorial presence. In the east (Arauca, Catatumbo), where most of the ELN’s military and economic power has been concentrated in recent years, the fear is that other illegal armed groups will seek to occupy the ELN’s role in criminal economies. Verification of this ceasefire will be complicated and fraught with difficulties. While it could revive a languishing peace process, controversies over ceasefire violations in the regions could also increase distrust between negotiating parties and scuttle further progress in the talks – that is, if the ELN is actually committed to peace and not on using the ceasefire to regroup.

It is noteworthy that the government agreed to a bilateral ceasefire with the ELN even if the talks have produced no tangible results or agreements, after the government repeatedly refused a bilateral ceasefire with the FARC until after the peace talks formally concluded in August 2016 (that said, some of the government’s actions – deescalation of tensions, suspension of aerial bombardments etc. – during the peace process with the FARC resulted in de facto bilateral ceasefires).

The death of ‘Gavilán’, surrender of then Clan del Golfo?

On August 31, alias ‘Gavilán’, the second-in-command of the Clan del Golfo, was killed in a military operation in Urabá (northern Colombia). President Santos said that this was the biggest blow dealt to the criminal organization in the last two years, since the beginning of operation Agamemnon against the Clan del Golfo.

Alias ‘Gavilán’ was one of the most wanted man in Colombia – one of the main contemporary drug lords in Colombia, the no. 2 man in the largest illegal armed group in the country (larger than the ELN), a coldblooded murderer and a child rapist. Gavilán was 16 when he joined the Maoist EPL guerrilla in his native Urabá, which partially demobilized in 1991. Like many other demobilized members of the EPL in Urabá, Gavilán – and other future capos of the Clan del Golfo – joined the paramilitary (ACCU and later AUC) in 1995, forming part of the Bloque Mineros of the AUC, which operated primarily in the Bajo Cauca region in northern Antioquia and demobilized in 2005. Six months later, invited by the Úsaga brothers and Daniel Rendón Herrera, he joined the nascent criminal gang (Bacrim) of the Urabeños. In 2012, after the death of alias ‘Giovanny’, the brother of the gang’s commander alias ‘Otoniel’, Gavilán became military commander of the organization.

Territorial presence of the Clan del Golfo, 2017 (source: FIP)

The Clan del Golfo, also known as Los UrabeñosClan Úsaga or Autodefensas Gaitanistas de Colombia (AGC), is the largest criminal organization in Colombia. It is one of the ‘neo-paramilitary’ or ‘narco-paramilitary’ groups which emerged following the partial demobilization of the AUC in 2003-2006 and which has since consolidated itself as the largest illegal armed group in Colombia. The Clan del Golfo is a diffuse criminal organization or ‘franchise’ with an armed component, centred in the northwest of the country (Urabá, Córdoba, Chocó, Bajo Cauca), and an outsourcing/subcontracting component in cities and other regions of the country integrating regional/local criminal networks (drug traffickers, oficinas de cobro, pandillas and combos) carrying out specific tasks (extortion, murders, micro-trafficking, debt collection). The group’s main economic activity is drug trafficking, specialized in the transformation and commercialization of cocaine which is exported to Panama, Central America and Mexico; the Clan del Golfo is also active in illegal mining, illegal logging and extortion. The Clan del Golfo, unlike other ‘organized armed groups’ (GAO, the new official label for larger non-guerrilla criminal organizations), has a multi-regional presence through its two structures (with an estimated 1,900-3,500 men) with the capacity to carry out sustained military operations and exercise control over certain territories.

Urabá is the military stronghold of the Clan del Golfo. Located in northwestern Colombia, Urabá is a strategic ‘corridor’ linking the centre of the country to the Caribbean (via the Gulf of Urabá) and the Panamanian border, one of the main export routes for cocaine to Central America and Mexico. The region has been one of the epicentres of the armed conflict since the 1980s, a cradle of major unresolved social conflicts and strong demands for land restitution. Urabá is not a major coca producing region (but is located close to coca cultivation areas in the Nudo de Paramillo), but it has become a major centre for the collection, refinement and exportation of cocaine by illegal groups. According to the FIP’s excellent report on organized armed groups (2017), Urabá is a ‘dominated’ by the Clan del Golfo, which has managed to control different economic and social spheres, unrivalled by other illegal groups since the demobilization of the FARC. The Clan del Golfo showed their power of intimidation and coercion through two ‘armed strikes’ (paros armados) in 2012 and 2016, in retaliation for the deaths of alias ‘Giovanny’ in 2012 and alias ‘Negro Sarley’ in 2016. In 2016, the Clan del Golfo’s sicarios ordered shops, classes and public services to close. The mere threat of violence was enough to paralyze transportation and the daily lives of thousands of inhabitants of some 20 municipalities in Urabá and Córdoba. In May 2017, in retaliation for the death of alias ‘Pablito’, one of Gavilán’s most trusted lieutenants, the Clan del Golfo announced a plan pistola (‘pistol plan’), the targeted assassination of police officers and other law enforcement personnel, in the style of Pablo Escobar. This year’s plan pistola killed a dozen police officers and injured another 36. Efrén Vargas, Gavilán’s brother and mastermind of the plan pistola, was killed in a military operation in the Chocó in July 2017.

The government launched joint Operation Agamemnon in February 2015 to dismantle the Clan del Golfo in Urabá and capture the organization’s líder maximo, Dairo Antonio Úsuga alias ‘Otoniel’. In the first phase of the operation, which lasted until May 2017 with the participation of over 1,200 police officers, over 1,200 people were captured, 50 were killed (including first, second and third rank capos), 44 tons of cocaine were seized and 70 laboratories destroyed. Notably, in 2016, the police seized 9.2 tons of cocaine belonging to Gavilán. In June 2017, the government launched the second phase of Operation Agamemnon, refocused on intelligence, surveillance and targeting of the top capos of the Clan in an expanded radius of operation. These operations have undoubtedly affected the strength and operational capacity of the Clan del Golfo, but they have been unable to dismantle the Clan. The state’s operations against the Bacrim and GAO since 2006 have resulted in over 33,000 arrests and the supposed elimination of smaller groups, but it has been unable to ‘defeat’ the phenomenon of organized armed groups. As the FIP’s report argued, the strategy of ‘decapitating’ capos or the weakest links of organized crime resulted in the “transformation and fragmentation of structures” and has not changed the conditions which allow for the local reproduction of criminal activity and the presence of organized armed groups (drug trafficking, illegal mining, weak state presence, historical continuity of violence etc.). Voids or vacancies in criminal economies created as a result of the state’s actions have been filled by others and groups have fragmented into “different levels of subcontracting” which are harder to identify. According to the FIP’s report, the top heads of GAOs like the Clan have very limited interference with their networks, which makes these organizations “increasingly diffuse, but not necessarily weak”.

The Clan del Golfo initially responded to Gavilán’s death with a bellicose threat of a new plan pistola to assassinate police officers, Escobar style. The government announced Gavilán’s death as it usually does with such events: surrounded by top military brass, celebrating an “overwhelming blow” (golpe contundente) and sternly warning criminal leaders to surrender or otherwise “fall one by one”.

Surprisingly, however, on September 5, one day before Pope Francis arrived in Colombia, the Clan del Golfo’s leader, Dairo Antonio Úsaga alias ‘Otoniel’ in two YouTube videos (the group has a YouTube channel) read separate communiqués to the country and Pope Francis announcing his willingness to participate in the “end of the conflict to reach the total disarmament of all armed groups of the country” and suspend all illegal activities once sufficient guarantees for a “dignified and voluntary exit” are provided. President Santos said that he had received an “express manifestation” of the AGC’s will to surrender to authorities on September 3. Semana noted that it was Otoniel, the most wanted man in Colombia (also wanted in the US), appeared in a video; there were only two other known pictures of him.

According to CM& news, Otoniel’s declaration, shortly after Gavilán’s death, confirmed that Gavilán had blocked Otoniel’s previous desire to turn himself in.

‘Otoniel’ presents himself as the leader of the Autodefensas Gaitanistas de Colombia, the paramilitary-like name the group has adopted to claim a status as political belligerents rather than drug traffickers or criminals. The Clan del Golfo has sought inclusion in the ongoing peace processes in the past, but the government has refused all negotiations with them, considering them criminals rather than political belligerents. Santos reiterated that it is not a negotiation, but a surrender to authorities (sometimiento a la justicia) under certain conditions. Attorney General Néstor Humberto Martínez, asked to evaluate this possibility by the government, has conditioned a sometimiento a la justicia to a cessation of all criminal activities and the surrender of illegal assets and drug trafficking routes.

The most famous example of sometimiento a la justicia was Pablo Escobar’s ill-fated surrender to authorities in 1991, which ended with his escape for his palatial ‘jail’ in July 1992. A sometimiento a la justicia allows for reduced prison sentences. However, as a recent article in Semana explains, the partial surrender/demobilization of the Ejército Revolucionario Popular Antisubversivo de Colombia (ERPAC) in 2011 exposed the gaps in Colombia’s criminal justice system for the mass surrender of criminal organization – only 269 members actually turned themselves in, and 248 were released because there were no charges against them (and most later recaptured). As part of the peace agreement with the FARC signed last year, the government and the judiciary will present a bill to regulate the surrender of justice of criminal groups, under the special ‘fast-track’ legislative procedure (which in practice has been snail-track); the Clan del Golfo’s willingness to surrender has revived this idea and the judiciary and Fiscalía should present a bill to be processed by the ‘fast-track’.

If it comes to be, the sometimiento a la justicia of the Clan del Golfo/AGC will not be like the demobilization of the FARC. As noted above, the Clan del Golfo, despite being the strongest of all organized criminal groups in the country, operates as ‘franchises’ with a large, diffuse subcontracted component. Several wings of the organization, particularly those operating in regions outside the Clan del Golfo’s ‘dominion’ in Urabá should be expected to form dissident criminal groups. In addition, the AGC ‘brand name’ has been used in several regions of the country by other criminal groups – some unconnected to the actual organization – to intimidate and threaten.

Shifting Court balances: a more conservative Constitutional Court?

On August 30, the Senate elected José Fernando Reyes as the new magistrate on the Constitutional Court, completing the renewal of the nine-member Constitutional Court. The Colombian Constitutional Court has been described as “one of the most creative and important courts of the Global South and the world since its creation in 1991”. It has handed down highly significant decisions about fundamental rights – including the decriminalization of drug possession, the legalization of same-sex marriage and adoption, the partial decriminalization of abortion under certain circumstances, the conditional legalization of euthanasia, the right to health, victims’ rights, displaced peoples’ rights and collective rights (environmental protection, indigenous peoples’ right to cultural autonomy). It has also kept the executive and legislative branches in check at times, limiting the use of states of exception by the executive and striking down constitutional amendments with the controversial ‘substitution of the constitution doctrine’. Its jurisprudence has attracted the attention of foreign legal scholars – there is now a book in English, co-authored by former magistrate Manuel José Cepeda, covering the major cases of Colombian constitutional law. Today, the Constitutional Court’s role is even more crucial – as it is called to automatically review all laws and decrees passed to implement the peace agreement with the FARC, it is playing a critical – perhaps decisive – role in the peace process, not without significant controversy and competing political interests. In recent years, the Court’s judicial activism in areas like fundamental rights (same-sex marriage and adoption) and economic and environmental issues (mining, prior consultations with communities, protection of páramos) has caused controversy and annoyed governments, who have complained that the Court’s decisions have resulted in additional costs. Like other judicial institutions, the Constitutional Court’s credibility has been hurt by scandals – like that of former magistrate Jorge Pretelt Chaljub, accused in 2015 of seeking and receiving a 500 million peso bribe from Fidupetrol to favour its interests in a ruling (Pretelt was suspended by the commission of accusations in 2016, his term ended in 2017).

The Colombian Constitutional Court has nine members who serve eight year terms. They are elected by the Senate from lists of three names presented by the President, the Supreme Court and the Council of State. In other words, three magistrates are elected from lists presented by the President, three from lists presented by the Supreme Court and so forth. A total of five new magistrates took office in 2017, completing the renewal of over half of the Court. The next vacancy will be in 2020. Like in the United States, observers pay close attention to the ‘ideological balance’ of the Constitutional Court. The first and second courts (1992-2007/2009) were famously progressive or liberal with magistrates like Carlos Gaviria (the Polo’s 2006 presidential candidate) and Manuel José Cepeda. The third court, from which only two magistrates are left (until 2020), was more conservative, under the influence of President Álvaro Uribe’s nominees. 

The new magistrate, José Fernando Reyes, was elected from a list presented by the Supreme Court. He is a relatively unknown criminal lawyer from the University of Caldas (Manizales) who was a magistrate on the Superior Tribunal of Manizales (Caldas) since 2004. He came from a ‘list of unknowns‘ presented by the Supreme Court, which had taken nine months to make up its list in midst of internal deadlock. His main competitor was John Jairo Morales, a professor at the Santo Tomás University in Bogotá who also worked with the public sector; the third candidate, Judith Bernal, was a very little-known circuit court judge from Bucaramanga who didn’t campaign. The public audience of the candidates in the Senate, the day before the vote, didn’t interest senators much and the questions for the candidates concerned the main legal topics of the day – abortion, the peace agreement, fast-track laws and a judicial reform. Both Reyes and Morales declared that life begins at conception, all agreed with a judicial reform (hard to oppose that publicly these days…) and largely evaded questions about the peace agreement. Morales was supported by uribismo (likely because he was head of the legal advisory office to then-interior and justice minister Fabio Valencia Cossio, a leading uribista, in 2008), former inspector general Alejandro Ordóñez and most Conservatives; Reyes had the de facto support of the government (who couldn’t afford to lose to Uribe and Ordóñez on this one), all but one of the Liberals, most of the Partido de la U and some of Cambio Radical (as well as some of the other parties – Greens, Polo and Opción Ciudadana). Reyes was elected in a narrow 49-40 vote against Morales.

Reyes, despite being elected with Liberal votes (as well as, most likely, the Greens and Polo), is a conservative who replaces Jorge Iván Palacio, a liberal who voted with the 6-3 ‘liberal majority’ on same-sex marriage in 2016. The new Constitutional Court appears more unpredictable, perhaps more conservative, than previous courts, as La Silla Vacía explains.

In the previous court, there was a ‘conservative bloc’ of 3 votes – Pretelt (a declared uribista), Gabriel Eduardo Mendoza and Luis Guillermo Guerrero. Guerrero, the only one still on the court (elected in 2012 with Conservative and Partido de la U support), is the current president of the Constitutional Court and likely the most conservative vote. Besides Reyes, two other of the newcomers could join a ‘conservative bloc’ which would now have 4 votes. Cristina Pardo, legal secretary to the presidency from 2010 to 2017 and assistant magistrate to three conservative magistrates from 1996 to 2010, was elected from a ‘list of one‘ (she was the only strong contender) sent by Santos to replace Pretelt. She was chosen for her proximity to the government, especially on issues like the peace agreement, but Pardo is ‘openly’ conservative on moral issues and judicial activism. Carlos Bernal, Santos’ other recent nominee, is a recognized lawyer from the Externado University with two doctorates who came from a ‘liberal list’ with three strong nominees but may be a conservative vote on moral issues. Bernal is a devout Christian who was supported by the very socially conservative Liberal senator Viviane Morales and received the support of uribismo, which had asked all candidates if life began at birth or at conception. In any case, Bernal, who was supposed to ‘vote with the government’, ended up being the swing vote in a contentious ruling in May in which the Constitutional Court significantly weakened the government’s power over Congress in the special ‘fast-track’ legislative procedure (using its ‘substitution of the constitution’ theory).

In June 2017, after the setback it suffered with Bernal’s vote, the government intervened to favour the election of Diana Fajardo, a liberal, from a list sent by the Supreme Court. Her main rival was Álvaro Motta, a conservative. The other new magistrate, Antonio José Lizarazo, was elected in December 2016 from a list sent by the Council of State. A liberal, Lizarazo is close to the government (as well as Germán Vargas Lleras) and has been, thus far, a reliable pro-government vote on peace-related issues. The government’s other reliable vote is Alejandro Linares, a moderate liberal elected in 2015 from a list sent by Santos. With Pardo, Linares, Lizarazo and possibly Fajardo, President Juan Manuel Santos has at least four sympathetic votes on the Court, something which may help him preserve his legacy after he leaves office in August 2018. Given that Santos’ nominees were elected in 2015 and 2017 and that a 2015 constitutional amendment now bans presidential reelection, whoever is elected president in 2018 will not be able to fill any vacancy (bar an unexpected resignation) on the Court.

The other magistrates are Alberto Rojas Ríos, an purported liberal who has been the subject of several controversies and has not always been consistent with his liberal background; and Gloria Stella Ortíz, a liberal but more independent from the government (she voted with the majority in May to emasculate the fast-track).

Whether the Constitutional Court moves in a more socially conservative direction is still unpredictable, although a ‘socially conservative bloc’ could be only one vote away from a majority. What does seem more certain, however, is that the Court will be less activist – a major preoccupation for the government and businesses, as noted above. All three of Santos’ nominees – Pardo, Bernal and Linares – share a conservative vision of the Court’s powers, hostile to judicial activism and instead favour ‘legal security’. Linares, for example, was the legal affairs VP of Ecopetrol, Colombia’s largest oil company and shares the private sector’s concern about the fiscal impact of the Constitutional Court’s decisions. Guerrero and apparently Fajardo and Reyes also support a less activist court.

However, the peace process – which requires a favourable majority on the Constitutional Court – may be ‘saved’. Linares, Lizarazo, Rojas and Fajardo have, until now, unreservedly supported the peace process and its implementation. Cristina Pardo, who was the presidency’s legal secretary for seven years and worked on several legal issues related to it, theoretically supports the peace process but has had to recuse herself – notably on the ‘fast-track’ decision in May – on peace issues. Reyes’ vote may be the swing vote in favour of the peace process. The next major issue the Court will have to deal with is Acto Legislativo 2 of 2017, a constitutional amendment whose second paragraph says that the state has the “obligation to comply in good faith with the provisions of the final peace agreement” for the next three presidential terms. The ponencia from conservative magistrate Guerrero proposes striking down this second paragraph, which supporters of the peace agreement say would endanger the long-term future of the peace agreement (because, hypothetically, an hostile uribista president in 2018 would have no constitutional obligation to comply with the terms of the peace deal). A decision was scheduled for September 6, but it has been delayed.

Recommended: “Judicial Activism in a Violent Context: The Origin, Role, and Impact of the Colombian Constitutional Court” by Manuel José Cepeda in the Washington University Global Studies Law Review (Jan. 2004).

Advertisements

One thought on “Colombia Digest II: The FARC’s new name, ELN ceasefire, the disintegration of a criminal organization and shifting Court balances

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s