Attorney General’s Office cannot dismiss, suspend or challenge mayors and governors, but can punish them: Constitutional Court

On Thursday, February 16, we learned that the Constitutional Court had annulled the powers that the reform of the Public Ministry – presented by the lawyer Margarita Cabello and promoted by the government of Iván Duque – gave to the prosecutors to revoke, suspend and disqualify the popular elected officials. , noting that this decision corresponds only to a contentious-administrative judge, after exhaustion of the procedure in charge of the General Prosecutor’s Office of the Nation.

For the Constitutional Court, these powers and “jurisdictional functions attributed to it by Law 2049 of 2021” are contrary to the Constitution, and it specified that the disciplinary functions exercised by the General Prosecutor’s Office of the Nation are administrative and not jurisdictional in nature.

Likewise, he urged the Congress of the Republic to “adopt a statute for the servers of popular elections, including a special disciplinary regime, which materializes the highest national and international standards for the protection and guarantee of political and electoral rights. “.

With a presentation by magistrates Juan Carlos Cortes and José Fernando Reyes, the Court’s decision is clear: “the Office of the Attorney General of the Nation is competent to investigate and prosecute public officials, including elected officials, unless they do not enjoy constitutional jurisdiction”.

However, he warns that “on the one hand, the constitutional powers of investigation and disciplinary prosecution of the supervisory body are respected and, on the other hand, judicial reserve is ensured, since the final decision on the imposition of the disciplinary sanction corresponds to a judge of the Republic”.

It also recalls that, by legal mandate, “in the case of servers elected by the people, the review mechanism process suspends the execution of the PGN’s sanction decision until the contentious-administrative judge rules, ensuring the judicial reserve”, noting that “the suspension is not consecrated for the other types of civil servants, with whom the legislator has sought to grant those democratically elected preferential treatment, while avoiding that all disciplinary sanctions are suspended and, in doing so, lose part of their effectiveness while awaiting judicial confirmation.

Regarding the judicial control of the sanctions imposed by the Attorney General’s Office, the Court notes that “it is evident that the control instrument established by Law 2094 of 2021: (i) is requested, therefore it does not guarantee judicial review of the decision of the PGN in all cases of sanctions against publicly elected officials; and (ii) does not order a review of the decision of the PGN to ensure that it does not object of generating an undue interference in the popular mandate and in the political rights of the sanctioned person.

Judges Diana Fajardo Rivera, Natalia Ángel Cabo, Jorge Enrique Ibáñez Najar and Cristina Pardo Schlesinger partially saved the vote by disagreeing with the majority decision, because although they agreed that it is unconstitutional to award jurisdictional functions in the Office of the Attorney General of the Nation dealing with and resolving disciplinary proceedings; They were not, given the chamber’s abstention “from ruling on the violation of Articles 29 and 93 of the Constitution and 8 and 23.2 of the American Convention on Human Rights”.

They also did not agree to declare inapplicable the offending rules to restore the disciplinary jurisdiction of the Attorney General’s Office as an administrative function with respect to the servers of the popular election, so that this entity continues to treat the process as an administrative action that concludes with an administrative decision by which sanctions of dismissal, suspension and inability to hold public office are imposed, only subject to judicial review through the filing, processing and resolution of an extraordinary recourse in review whose treatment does not consult the guarantees of a real trial because it is simply a matter of a judicial examination and not a full judicial action.

Likewise, they warned that although the Court invalidated the jurisdictional functions of the vast bureaucratic body that created the defendant law, with this decision it left this bureaucratic monster “alive”: “it leaves standing the whole bureaucratic body, all the institutions, including a resource intended for something else, and restores to the General Prosecutor’s Office of the Nation a function that the Congress of the Republic had withdrawn from it, in the exercise of its competence as the organ par excellence of representative democracy. .

The judges also noted that “it is true that the Constitutional Court is not the judge of conventionality, the sentence pronounced by the Inter-American Court in the Petro case is not a parameter of constitutionality and this Court is not not the competent authority to verify or order the execution of a judgment of the Inter-American Court”.

And they added that with this decision, a new jurisprudence would be established in which the Colombian State could ignore its international commitments in the field of human rights.

“However, for the dissenting magistrates, it is clear that the said condemnation could not be ignored by the Corporation. By its decision, the majority of the Plenary Chamber not only questioned the binding nature of the sentence pronounced by the Inter-American Court, but also encouraged the country’s institutions to ignore it and not comply with it”, to which they added: “With this condemnation, the Plenary Chamber has established a new jurisprudential line according to which the State can ignore its international human rights commitments and openly ignore the decisions of the highest court of human rights. local man.”

Below is the full document with which the Constitutional Court announced its decision: