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Judge Rocío Araújo of the Council of State requested that the process that will define the future of prosecutor Francisco Barbosa be studied by the Plenary Chamber. His position was recorded in an order that, without having been studied, was notified to the parties as if it were already a decision made. The error or carelessness is described as “appalling” by consulted sources.
Whether due to carelessness or error, a serious fact was presented to the Council of State within the framework of the process that must define whether or not the election of Francisco Barbosa as attorney general of the Nation is annulled. Although the case is already for a ruling in the Fifth Section of the high court, in the office of Judge Lucy Bermúdez, one of her colleagues, Judge Rocío Araújo filed a petition for the file to be sent to the Plenary Chamber (composed of 27 jurists) by legal importance. That position and a draft response to it – prepared by the same magistrate Araújo – was consigned in a car that was uploaded to the official system that the high court has. And it was notified to the parties as if it were already a decision made, despite the fact that it is hardly a request that has not yet been studied.
The fact is serious since the rapporteur in the case is Judge Lucy Bermúdez. It is she who must study the request made by her colleague Araújo, prepare a draft response stating whether or not the issue should go to the Plenary Chamber or not, and present that project to the Plenary Chamber so that the respective decision can be made there. In that sense, there are several things that no one in the Council of State understands about this episode. Why did Judge Araújo draft a response to her own petition? Why was this document given by decision taken and notified to the parties (the plaintiffs and the defense of the prosecutor Barbosa)? Why was the document uploaded to the public information system that the State Council has, which can be consulted by all Colombians?
Indeed, The viewer you have the 24-page document in your possession. There, Araújo appears as magistrate rapporteur of the file, despite the fact that she is not the one who was responsible for the case, and begins the document like this: “the request made by magistrate Rocío Araújo is decided so that the Plenary Chamber of the Council of State the present case, for reasons of legal importance (…) ” Then he explains what the lawsuit filed by citizens Esneider Mateus and Gina Ávila against the election of Barbosa consists of, explains the rules that currently consider the period of the prosecutor as personal and indicates that the case must go to the Plenary Court to settle the “divergence interpretation, of the recognition of the legal and social context, to establish if there have been changes that lead to the change of the interpretation parameter ”.
(You may be interested: Lawsuit against the election of the prosecutor Barbosa, in the final stretch)
Then, the document gives space for the signatures of the high court magistrates as if it were already a decision taken despite the fact that, not only has it not been studied, but the magistrate Lucy Bermúdez has not yet presented the draft responding upon request. The viewer he consulted sources in the Council of State regarding this fact and the answer was that it is a blunder, “appalling”, “terrible”. Sources also showed their absolute surprise over the fact that Magistrate Araújo appeared as a speaker in a case that she is not in charge of. In addition, this newspaper found that the parties are also surprised by the fact since this error or oversight caused confusion about the course that the file was going to take. And that they will ask for explanations about it.
In this case, in addition, just a week ago, the Plenary Chamber of the Council of State had denied a request made by the Attorney General’s Office for the file to leave the Fifth Section and pass to full due to legal importance. Precisely, the Public Ministry considered that it was necessary to fully study the matter to review the existing criteria on whether the period of the attorney general should be considered institutional and not personal. This is because today, the current rule is that the period is personal, but the Attorney General’s Office does not agree with it. In a decision taken on December 1, the Plenary Chamber said that it was not necessary to discuss this matter again.
“For the rest, the need to establish or unify jurisprudence on the period of the Attorney General of the Nation is ruled out, as this was achieved with the judgment of April 16, 2013; A different thing would be the “possibility” that this Corporation has to rethink, change or modify the jurisprudence, an aspect that the Administrative Litigation Chamber has not evaluated informally and that has not been the subject of the corresponding referral by the Fifth Section in those precise terms, ”the Chamber stated in that decision. Now, amid the error of the Council of State, the only certainty is that Judge Bermúdez will have to respond to the request made by her colleague Araújo and the Plenary Chamber will have to study this issue again.
Araújo’s proposal
The 24-page document prepared by Judge Rocío Araújo, to respond to her own request to send the prosecutor’s case to the Plenary Chamber, assures that although a similar request was denied on December 1, this was due to argumentative deficiencies of the Attorney General’s Office. In his opinion, the case raised by the plaintiffs regarding the period of the Barbosa prosecutor does “underlie reasons of legal importance that impose on the administrative litigation plenary ex officio the knowledge of the matter.”
(You may be interested: State Council admitted a lawsuit that asks to annul the election of the prosecutor Barbosa)
“Although at first glance it might seem like a settled discussion, this assessment lacks reality because serious differences persist in the historical, systematic, purpose and useful effect interpretation of constitutional provisions 125 and 249, since there are pronouncements from the Plenary Chamber of Administrative Litigation, the Civil Service and Consultation Chamber and the Constitutional Court that (….) reach different interpretations on the scope of the two aforementioned precepts, in the sense that the period of that official is personal, and on the other hand, it was also concluded that the institutional nature of that same period, “adds that draft document.
In this case, the plaintiffs questioned whether Francisco Barbosa was elected “for the constitutional and legal period of 4 years that are counted from his possession,” taking into account that the lawyer was elected after Néstor Humberto Martínez Neira resigned. at your expense without ending your respective period. Simply put, for plaintiffs, the general rule should be to consider the prosecutor’s term as institutional and to do a different analysis when it comes to cases where a prosecutor does not finish his term for some reason.
“The period that the previous attorney general, Néstor Humberto Martínez Neira, had been performing, was not flawed by any cause of illegality or act contrary to our constitutional order. For this reason, we consider that the constitutional period that was legitimately being developed by (him) should be completed with the election of a new official, as there is no reason to consider that his period should be restarted, ”said the plaintiffs.
In her presentation, Judge Araújo assures that the Council of State in plenary session must take up the matter because there are different pronouncements from 2012, 2013 and 2014 on this matter and because during that period important reforms to the Constitution were processed. One, Legislative Act 02 of 2002, which modified the term of governors, deputies, mayors, councilors and councilors; and Legislative Act 01 of 2003 and Legislative Act 2 of 2004 that introduced the presidential reelection and as a result of this, two presidents of the Republic were reelected. “One of them, his presidential term coincided with the three Prosecutors General who served, a circumstance that precisely the primary Constituent did not want to foresee,” said the lawyer in her draft.
(You may be interested: The response of the Supreme Court to the lawsuit against the election of prosecutor Barbosa)
“In this scenario, the case is of the greatest legal significance because it requires giving certainty to all citizens and the State itself, about the way in which the institutional or personal period of the Attorney General of the Nation affects or has consequences on institutional stability from the country. All of this is repeated, in the light of the current legal, social and political context, and of the functionality that the established election mechanism currently has, an aspect that has a position in the claim and on which neither the Council of State not even the Constitutional Court has ruled, covering an aspect of the greatest importance because it would define the incidence of the Attorney General’s period for the structure of the State and the system of checks and balances, ”says Araújo in that document, responding to his own request.
