Government proposes that tutelas against the president only go to the Council of State

The viewer He learned about a draft decree from the Ministry of Justice, with which it is intended that the guardianships against President Iván Duque go in the first instance to the Council of State, which would remove jurisdiction from the other courts and tribunals of the country. The measure would apply in the same way to guardianships related to the eradication of illicit crops, an issue in which some courts and the Superior Court of Pasto played a crucial role last year.

If a draft decree prepared by the Ministry of Justice is approved, headed by Wilson Ruiz Orejuela, all tutelage against President Iván Duque must be filed only before the Council of State and not before regional judges, as determined by law until now. The viewer learned about the document, with which the Government intends that the same rule applies to any guardianship related to matters of national security and the eradication of crops for illicit use, an issue in which regional judges have played an essential role. For example, with the tutelage presented by the Nóvita (Chocó) representative, as a result of which the Constitutional Court imposed certain demands on the Government in 2017 to resume the use of glyphosate.

In context: Constitutional Court maintains conditions to resume spraying with glyphosate

This draft decree of the Ministry of Justice seeks to modify three articles of Decree 1069 of 2015 or Sole Regulatory Decree of the Justice and Law Sector. Among the changes, it is also read that the tutela filed against the comptroller general, the attorney general, the attorney general, the national registrar, the ombudsman, the auditor general, the general accountant, the National Electoral Council and the determinations of the National Superintendency of Health “will be distributed to the Superior Courts of the Judicial District or to the Administrative Courts.”

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President Duque has not done so badly in the Council of State. That corporation, for example, in a ruling of October 2020, rejected a tutelage filed by citizen Juan Felipe Rodríguez, who alleged that his rights had been violated after President Iván Duque spoke in the media and from platforms of the The same Presidency regretting the decision of the Supreme Court of Justice, dated August 4, to detain former President Álvaro Uribe. Rodríguez asked that the president be ordered not to make value judgments on the criminal proceedings of his mentor because it could be understood as pressure to justice.

However, Magistrate Martín Bermúdez, of the Third Section of the Council of State, responded to Rodríguez that he was not entitled to file that action, as it was not part of the criminal proceeding against Uribe Vélez for the crimes of procedural fraud and bribery in criminal proceedings. The citizen indicated that his rights had been violated, since he voted to the Senate for Congressman Iván Cepeda, judicial opponent of the former president. “The plaintiff did not prove that he was a party to the criminal process or that he had been recognized as a victim; nor did he state that he was acting as an unofficial agent of any of them, ”Judge Bermúdez replied.

For the same episode, speaking of differences between regional offices and the Council of State, the Administrative Court of Cundinamarca, in a ruling of August 24, 2020, asked President Iván Duque to refrain from “issuing opinions that ignore the autonomy and independence of the branches of public power in accordance with the provisions of the Political Constitution ”. The same court reiterated its considerations, on September 14, when it stated that “the publications made by the president of the republic do not maintain the impartiality that he must guarantee as the first president.”

“There is a sector of the population, including the actor, who does not share the same, who should also represent with their pronouncements and respect their right to equality. This, in turn, contravenes the constitutional mandate based on which, Mr. Iván Duque Márquez, as the country’s first president, being the symbol of national unity, must guarantee, in an impartial and equal manner, the rights and freedoms of all the Colombians ”, concluded the Administrative Court of Cundinamarca when deciding another protection action presented by citizen Sergio Andrés Pérez.

One of the guardianships that President Iván Duque complied with, by order of a regional guardianship judge, was promoted by citizen Víctor David Aucenon, who invoked his rights to the secularism of the State, freedom of worship and the principle of separation between the state and the church. The plaintiff entuted the president, because in the framework of the celebration of the Virgin of Chiquinquirá, on July 9, 2020, he published a message on his Twitter account, which was taken as an “expression of belief” by the Superior Court From Cali.

“For this corporation, the message issued by the President does not meet the minimum of justification and reasonableness, as it is a clear speech on religious matters whose disclosure is prohibited, since it implies ignorance of the right to freedom of worship, and the duty of neutrality of the State, and consequently, it violates the principle of secularism of the State ”, explained the magistrate speaker Germán Darío Gómez, on July 27, 2020. Although the guardianship judge gave a period of 48 hours to withdraw the tweet, it is still posted on the account of President Iván Duque.

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On the issue of the eradication of crops for illicit use, especially in relation to the return of glyphosate, the regional judges were fundamental last year. For example, the Administrative Court of Nariño, on July 22, 2020, ratified a decision of a Court of Pasto in favor of the Afro, indigenous and peasant communities of Chocó, which filed a tutela action against the Presidency for not having them in mind for the discussions on the return of aerial spraying with glyphosate. It was an action promoted by 93 people and 88 organizations, among which are the National Commission for Indigenous Territories (CNTI), Cinep and the José Alvear Restrepo Lawyers Collective (CAJAR).

There was a second protection that was processed before regional judges for the same issue: the participation of peasant communities on the return of glyphosate, since the ANLA (National Environmental Licensing Authority) had called a hearing to expose the modification of the Environmental Management Plan of the Police in relation to this matter. The hearing had to be scheduled virtually due to the COVID-19 pandemic, but multiple peasant organizations in Nariño, backed by Dejusticia, argued that virtuality was not the right way given the technical difficulties of peasants to connect to an event of this importance. and also participate. After multiple postponements due to judges’ considerations, the hearing was only held until December 2020.

Also read: Peasants will be considered for the return of glyphosate: justice gave them reason

Continuing with the regional offices, on January 13, the Superior Court of Pasto suspended a resolution of the Ministry of the Interior, since it certified 104 municipalities of the Pacific Nariñense as geographic centers in which it is intended to sprinkle with glyphosate. The Government, at the time, expressed that it was not necessary to make prior consultation, since the ethnic territories would be included. However, the Court decided a protection action in favor of the Afro and indigenous communities, which invoked their right to participation.

Also read: Government entuled a judge who suspended the process in the debate over the use of glyphosate

The Government did not remain idle and on March 8, through the National Agency for Legal Defense, filed a tutela action against Judge Blanca Lidia Arellano, rapporteur for that latest ruling. The Government asked to protect their rights to “due process” and “access to the administration of justice”, since that Resolution 001 of 2020 of the Ministry of the Interior is a key roadmap in the debate on the return of aerial spraying with glyphosate . Even the Anti-Narcotics Directorate of the Police, which will be in charge of the eventual strategy, used this information to develop its Environmental Management Plan (PMA) before the National Environmental Licensing Authority.

This is the draft decree prepared by the Ministry of Justice: