Does the unusual arrest warrant against the president of Colombia have a future?

In an unprecedented decision, the Superior Court of Ibagué ordered the house arrest of the President of the Republic, Ivan Dukefor the alleged contempt of a guardianship of the Supreme Court of Justice.

The decision has to do with the fact that the president failed to comply with a guardianship ruling of the Supreme Court of Justice which ratified the recognition of the Nevados National Park as a subject of rights.

Look: They order 5 days of house arrest for Duque for disobeying a court order

That court protection ruling, in which the high court ratified in second instance a decision made in October 2020 by the Superior Court of Ibagué, had given several orders to the Presidency and other authorities considering that the ecosystem, as Subject of rights, you have the right to have your life, your health and your healthy environment protected. Thus, it established that its legal representative is the President of the Republic, Iván Duque.

For this reason, the high court had ordered the President of the Republic, Natural Parks, the departments of Caldas, Quindío, Risaralda and Tolima, among other institutions, to prepare a joint plan to recover, maintain, and conserve the Nevados National Park, policy that must develop a strategy to clean up these lands from livestock activities, agriculture, among other practices that cause damage in this place and that must be eradicated in the area.

In addition, he had ordered President Duque, as supreme head of the Armed Forces, to designate a special group of the Military Forces or the Police that permanently accompany the work of conservation and protection carried out by Natural Parks of that site. That decision of the Supreme Court is from November 2020, and that of the Court -which the Court ratified- is from October of that same year, but to date the order to designate the special group of the Public Force to the protection of the park, stated the Court of Ibagué.

Minutes after the decision was known, President Duque spoke. As “unconstitutional” the head of state described the order of the Superior Court of Ibagué of house arrest against him for allegedly disobeying a guardianship of the Supreme Court of Justice.

”Today we have seen an act that, first, is inexplicable, because it wants to go beyond the constitutional jurisdiction, in which the arrest of the President of the Republic is supposedly ordered, for not complying with that sentence. That sentence is more than fulfilled and the reports are there,” said the president.

The Minister of Justice, Wilson Ruiz, also spoke about the issue and said that despite the fact that the evidence on compliance with the sentence was gathered in the process, the decision was made to declare the alleged non-compliance and impose the sanction.

”With this decision, the office ignores the efforts of the national government in the conservation of all the natural areas of the country and also ignores its own powers, as well as those of the other authorities that must attend to make a decision like this in front of the head of state. , whose constitutional jurisdiction was not taken into account in a clear violation of the legal system. The decision must provide the degree of consultation before the Supreme Court, for what providence is not firm”.

What the Presidency argued

In the contempt process, the Court had asked those involved to indicate how compliance with the orders of the second instance ruling of the Supreme Court was progressing.

In response, the Presidency of the Republic indicated, through a special representative, that the order given by the Supreme Court “was carried out because the operations officer of the 5th division was delegated as the one in charge of leading the actions necessary to comply with what is ordered in the guardianship order; that work tables have already been held in the departmental capitals related to compliance with the ruling, in the protected area, and that a follow-up matrix was even drawn up.”

Then, the Court cites that the representative of the Presidency indicated that “if what the Court and the Tribunal want is for a special group of the army and the national police to be formed to make a constant and permanent presence around the entire mileage of the park, this it is impossible from the technical, missional, normative and functional point of view, based on the presentation he made on the functions and roles of each of these entities and because Colombia has ‘greater security problems and the need for a strong foot’. That, likewise, there is already a group of parks and nature reserves in the area of ​​environmental security”.

Even in the decision declaring contempt it is read that the Presidency defended that they were not fulfilled “the subjective and objective elements so that the Court can eventually impose a sanction for contempt”, and that “the president of the republic complied with the order ‘through his agents’”.

Los Nevados National Natural Park (Mariana Guerrero. EL TIEMPO/)

The considerations of the Court of Ibagué

However, faced with the justifications for restrictions to comply with the order of the Supreme Court on the special group of the Public Force, the Court considered that they were not acceptable, in the first place, because they were adduced “approximately 18 months after the High Corporation issued the guardianship order”.

But also because “the order is clear and specific in the sense that the appointment by the President of the Republic is of a special group of the military forces or the national police to accompany the conservation, management and protection tasks that carries out National Natural Parks of Colombia in the Nevados National Park, continuously and permanently, without it being possible to conceive or accept that the fulfillment of such duty can be done with the simple installation of inter-institutional tablesfrom different offices, in different cities, in sporadic meetings whose schedule is not even met”.

A third reason why the court did not accept the explanations of the Presidency was because in order to carry out support tasks in different mountainous regions of the country, the national governments have already implemented “the so-called high mountain battalions for several years now.”

Citing the foregoing, the court then said that there are special and specific mechanisms that are not alien to the objectives and functions of the army to comply with the order of the Court, and that it is not, as the legal representative of the President said , that the special group designated for this “has to be moving ‘throughout the mileage of the park’, since its work must be directed to the areas in which early warnings have been reported.”

He added that trying to comply with the guardianship ruling “from an office or by holding work groups, offering the support of the public force based on specific requirements and schedules of needs, it is nonsense; that was not what was ordered by the guardianship judge at the time.”

Likewise, the corporation pointed out that even though in the response to the incident of contempt the representative of the President said, and it is true, that he is the Supreme Commander of the Public Force of the Nation and that such functions are performed personally or through the Ministry of Defense, in the file it could not be observed that either of them had complied with the order of the Supreme Court.

“To date, 18 months after the order was issued, the non-compliance of which gave rise to this procedure, there is no concrete act on the part of the President of the Republic tending to make effective the designation, formation and putting into action of the Special Group ” of the Public Force.

In this sense, the court declared Duque in contempt and ordered a measure of house arrest for five days and a fine equivalent to 15 current legal monthly minimum wages. Paula Andrea Huertas Arcila, Secretary of Judicial Representation and Defense of the department of Quindío, was also declared in contempt and arrested for 5 days.

And since the actions that declare contempt are not subject to challenge, the Court ordered that its decision be immediately sent for consultation to the Labor Cassation Chamber of the Honorable Supreme Court of Justice, which could maintain it, modify it or overturn it.

It is unfeasible for Duque to be arrested: experts

Experts consulted by EL TIEMPO pointed out that the Court’s decision would be unfeasible due to several fundamental factors: first, because the jurisdiction of the President of the Republic is absoluteand any action against him should be referred to the House Impeachment Committee, either for criminal or administrative matters.

Second, because an order of such scope on a head of state could only be discussed in a high court and not in a superior court.

The experts consulted also pointed out that, despite the fact that the President is the highest commander of the Armed Forces, there are dozens of officials under his command who could be protected, which calls into question the viability of the decision.

In the history of the guardianship, created in 1991, a President of the Republic has never received an arrest warrant.

As the Court forwarded its decision to the Labor Chamber of the Supreme Court for review, it is highly likely that the guardianship will fall there. And in any case, the last word would reach the Constitutional Court before any chance of arrest against the Head of State, added the experts consulted by EL TIEMPO.

The constitutional lawyer Johann Patiño said precisely that the contempt and arrest measure, which is of a non-criminal correctional nature, is subject to consultation within the following 3 days, and will not be final until the consultation is completed. “To the extent that the guardianship proceeds against all authority and contempt is not a criminal decision but a correctional one, in some way there was room for interpretation by the court; however, if judicial representation were studied, there would be no place for the fact. A decision of such a nature must be weighed and for this, it must also be understood that the responsibility for making that decision is not only supported by the fact of strict liability for the breach, but also by the enforceability of the conduct… Strictly speaking sense it should not be possible to arrest the president because it implies leaving the most important position of the executive branch headless, ”added the lawyer.

For his part, Kenneth Burbano Villamarín, director of the Constitutional Observatory of the Free University, considered that the Superior Court of Ibagué he was competent to impose the sanction for contempt on the President of the Republic.

”The presidential jurisdiction of article 199 of the Constitution does not operate since the president is not being persecuted or tried for crimes. It is about the non-compliance for several months of what was ordered by the Labor Chamber of the Supreme Court, in its capacity as constitutional judge, ”he explained.

He added that article 52 of decree 2591 of 1991 and the jurisprudence of the Constitutional Court indicate that it is the judge of first instance who is responsible for ensuring compliance with what is ordered in guardianship sentences and with that purpose can impose the sanctions for contempt . “The procedure and function of a constitutional judge would be broken if that sanctioning power is handed over to the House of Representatives, which is not a tutelage judge,” he explained.

The university professor also said that “it is clear that in terms of protecting fundamental rights, no authority, including the President of the Republic, can evade what is ordered by the constitutional judges, otherwise it would violate the constitutional order, the balance of powers and in general, the rule of law”.

Source: Elcomercio