The intense legal debate that opened a Supreme Court ruling on protests – Cortes – Justicia

One day after hearing the decision in which the Civil Cassation Chamber of the Supreme Court of Justice ruled in favor of a guardianship of 49 citizens, for finding that there has been a systematic violation of the right to peaceful protest, the Defense Ministry said it will ask the Constitutional Court to review that protection.

Contrary to the arguments of the Court, the Ministry of Defense affirmed this Wednesday that “peaceful protest is guaranteed”, He said that Esmad’s actions occur “exclusively in the face of violent actions”, and pointed out that those in uniform who violate the law “are individualized and punished.”

(Read also: The 14 orders of the Court for the ‘systematic aggression’ to the protest).

President Iván Duque also spoke yesterday in an interview with Caracol Radio, in which he said that many of the things required by the Court were already being developed by the Government, pointing out that “the Colombian State has always been respectful of free peaceful citizen expression.”

Within the assessment that the Constitutional Court must make to determine whether or not to choose guardianship, and whether it decides on the merits, there are several elements that are part of the legal debate that led to the ruling. EL TIEMPO consulted with constitutionalists on some of the most controversial issues.

(Read: Government will ask the Constitutional Court to review guardianship over protests).

The first is whether the Court could give the type of orders it gave or whether it incurred any excess, as several sectors have insisted, including two magistrates from the same Civil Chamber who saved their vote. Even yesterday, President Duque stated that he believes that in this case there was a kind of “co-administration and co-legislation by the guardianship judge.”

Former Constitutional Court magistrate Jaime Córdova Triviño stated that the orders were “thoughtful, reasonable and necessary.” In addition, he said that the discussion on whether a judge can invade powers of the Legislative or Executive is very old, a debate against which he considers that in contemporary constitutionalism “the power of the judge implies giving effective orders.”

(In context: Court orders to protect the right to protest against systematic attacks).

The same is the opinion of the former president of the Constitutional Court Alfredo Beltrán Sierra, who said that the Supreme proceeded “within the orbit of its function”, because it evaluated something very delicate as “the repression in excess, and in many cases armed, of the Public Force.” And he believes that there is not an invasion of the powers of the President because, although he has jurisdiction over public order, he must do so “within the framework of the Constitution.”

And Luis Ernesto Vargas, also former president of the Constitutional Court, and former member of the Inter-American Court, he assures that “there is no possibility that the Supreme Court has exceeded its powers as a guardian judge”, since in his opinion he was facing a systematic violation of fundamental rights.

In that sense, says Vargas, the ruling could give orders and extend protection even beyond the 49 guardians. He recalled, for example, that the 2004 ruling that recognized an unconstitutional state of affairs due to displacement had an even greater extension to this decision.

Kenneth Burbano, director of the Constitutional Observatory of the U. Libre, assures that the ruling is “necessary and transcendental”, as it adjusts to circumstances where there are “systematic attacks” on the protest.

And former magistrate José Gregorio Hernández assures that the Court It was not exceeded because the characteristic of a guardianship is to give orders whether positive, to act upon an omission, or negative to stop an action that violates fundamental rights.

But a different opinion has the constitutionalist Johann Wolfgang Patiño, who believes that the Civil Chamber gave the ruling a scope that “perverts the original foundation of the guardianship”, since it does not know that there were other means to which it could be resorted. It also says that the ruling did not weigh the principles of the rule of law and the legitimate power of the State.

He Former magistrate Carlos Bernal, recently released from the Constitutional Court, assured that the ruling is unconstitutional since the tutela was inadmissible, among other things, because those who presented it did not exhaust other avenues such as requesting the nullity of some of the decrees questioned. She also believes that she violates the principle of separation of powers by ordering the creation of a statute that regulates the use of force.

And a former magistrate of the high constitutional court, who asked not to be named, assured that everything will depend on what the Constitutional Court says, if it reviews the guardianship, but believes that in some guidelines the Civil Chamber may have gone beyond the way in which the that the Constitutional Court usually gives its orders, since it indicated how to comply with them, which could take some margin from the Executive.

The suspension of weapons

The second point of discussion has to do with con the court order to Esmad to suspend the use in demonstrations of 12 gauge shotguns. As President Duque said yesterday, this weapon is not being used while a review is underway.

For the former judge Córdova Triviño, in ordering the suspension, the Court acted “under the precautionary principle” when analyzing the firing of that weapon and the death of a citizen (Dilan Cruz), for which he considers it reasonable to suspend its use.

(Also read: Could the Court’s ruling have implications in the case of Dilan Cruz?).

For Burbano, in this case the Court is not deciding which weapons the Public Force can use, but rather suspended the use of one until there are guarantees for its “responsible and measured use.”

For Patiño, however, the Court was not responsible for ruling on these weapons because “it is invading powers that are not its own.” And the former magistrate who spoke off the record he believes that this is the most debatable point, since he says that the Constitutional Court has never suspended a weapon and “not even the International Court of Justice did so at the time with nuclear weapons.”

Disrespect?

There was also discussion about whether the Government can refuse to comply with the orders of the Court. In fact, in his statement this Wednesday, nowhere does the Ministry of Defense offer the apologies demanded by the high court.

The Attorney General’s Office said, also on Wednesday, that justice decisions must be complied with, even if they are not shared, and urged other state institutions to do the same. For this reason, she assured, she will abide by what the high court ordered her to create a work table to issue a protocol that verifies arrests in protests.

(We invite you to read: Can the Government not comply with the ruling of the Court on protests?).

Former magistrate Hernández affirms that the fact that the Constitutional Court can select the ruling “It does not exempt the Government from having to comply,” on pain of being in contempt. The lawyer Pedro Nel Escorcia said the same, noting that “it is not a good precedent that the Executive does not follow orders from the judges.”

Instead, the lawyer Jesús Albeiro Reyes believes that the ruling exceeds the functions of the judges and the Government can seek mechanisms to preserve its security management functions.

Review in Court

Once the ruling reaches the Constitutional Courtl, the guardianship will be distributed to an office that must evaluate whether it is relevant, novel and if it meets other requirements.

This technical sheet comes to a Selection Room that changes every month and defines whether or not you choose it, according to the arguments of the firm and the requests for review. If you select it, in a public hearing, by lottery, you distribute it to one of the nine review rooms.

JUSTICE DRAFTING
Twitter: @JusticiaET