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Colombian President objects to 6 out of 159 articles of Special Jurisdiction for Peace

BY: Kate Baaba Hudson
President of the Republic of Colombia, Mr Iván Duque Márquez
President of the Republic of Colombia, Mr Iván Duque Márquez

The President of the Republic of Colombia, Mr Iván Duque Márquez has objected to six out of the 159 articles of the Special Jurisdiction for Peace (SJP) statutory bill.

The decision was taken because several articles of the statutory bill are not convenient for the country, since they could lead to situations of impunity, abuses or distortions of the benefits provided for, in the Final Agreement and hinder its implementation.

In addition, Article 166 of the Constitution of Colombia empowers the President to raise these objections before signing the bill to be passed into law if it is found to impinge on the rights of the citizens of the country.

Each of the objections sought to improve and correct the transitional justice system agreed upon in the Final Agreement and the country has been advised not to fear an open debate on the proposed changes, in a constructive way and without any intention of polarising.

The concern is about the six articles objected that are still in the bill that would become effective, if the President appended his signature without making any amendments.

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The Colombian Ambassador to Ghana, Madam Claudia Turbay Quintero who explained the President and government’s stand on the decision, said the articles were those which could create situations of impunity, allow abuses of the benefits provided for in the Final Agreement, hinder judicial cooperation with other states, as well as hinder future peace negotiations. They include those which could hinder the payment of reparations to victims, she added.

Madam Turbay Quintero said “The objections raised on inconvenience grounds did not seek to paralyse the SJP (or JEP in Spanish) nor hinder its operation, but sought to ensure that the governing norm of the SJP was compatible with human rights treaties, which prevailed in the national and international legal system.”

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Colombian Ambassador to Ghana, Madam Claudia Turbay Quintero

Inconvenient provision

The ambassador said the Comprehensive Reparation to victims was an inconvenient provision because it did not establish clearly the main obligation of the perpetrators to fully compensate the victims.

She stressed the need for Colombians to be clear about the importance of specifying that perpetrators must advance a material reparation with their assets, in order to satisfy the victim’s rights.

Madam Turbay Quintero noted that under the Final Agreement, war crimes and crimes against humanity, were not susceptible of amnesty under any circumstance, as required in international law.

She said “the government considers it unacceptable that a person who may be guilty of a heinous crime of international significance could be exonerated of punishment, merely on the grounds that he or she could not be considered as a main perpetrator.

The ambassador mentioned Article 63, Paragraph 8, as inconvenient, as it did not determine the scope of the power attributed to the High Commissioner for Peace to verify the list of those who were recognised as members of an organised armed group which entered into a peace process.

She observed that another objection that sought to remedy a possible path towards a situation of impunity referred to the lack of continuity in investigations of heinous crimes.

It was therefore essential to ensure that the process undertaken by the ordinary justice system, continued functioning effectively in relation to the crimes, until orderly and definitive transfer of powers and proceedings to the SJP.

Final Agreement

The ambassador pointed out that the government of President Duque Márquez was committed to the implementation of the Final Agreement for the Termination of the Conflict, signed in December 2016 with the FARC, within the framework of a broader policy of territorial stabilisation and the consolidation of peaceful coexistence.

She emphasised that the objections raised to the statutory bill, were therefore aimed at strengthening that commitment within the framework of the strictest respect for constitutional procedures, the rule of law and the democratic order and sought to strengthen transitional justice.

Ultimately, she said what motivated the government was to prevent the consolidation of norms and procedures that affected the rights of victims to truth, justice, reparation and non-repetition, which was the axis of the SJP, of any transitional justice mechanism and of the Final Agreement itself.

The ambassador said it was not true that the SJP will be paralysed or stop working because of the objections, adding that it was also not true that objecting a limited number of articles of the bill, entailed a clash with the judiciary.

She said “the President has the greatest respect for the decisions of the Constitutional Court, which is the guardian of the Constitution and a body that had the final say on all constitutional matters.”

Rationale

Touching on the rationale of the objectives, the ambassador noted that if the President signed off the bill as was submitted for his consideration, he would be acting irresponsibly towards the country as a whole, the Colombian society and, in particular, the victims.

Specifically, she said the President had concluded that under that version of the bill, several possible scenarios of impunity would arise, which in turn, would entail the breach of international obligations of the Colombian state, derived from human rights treaties and, in particular, the Rome Statute of the International Criminal Court (ICC).

Scope of Presidential powers

Madam Turbay Quintero noted that, by partially objecting to the bill, the President was exercising a power provided for, in the Constitution and was contributing to a process of normative construction in which all three branches had participated.

On the part of the Executive, when drafting the original text, the Congress, when approving it and introducing the adjustments it considered necessary and the Constitutional Court, when reviewing it to verify its compatibility with the Constitution and modulating some of its provisions.

In the case of statutory bills, the Constitution provided that the analysis of constitutionality must be done before the draft was sent to the President for signing it off.