[NYTr] Colombia: Uribe and the Courts (COHA)

[All the News That Doesn't Fit]

Council on Hemispheric Affairs - Nov 19, 2007
http://www.coha.org/2007/11/19/the-president-and-the-courts-uribe%e2%80%99s-attacks-on-colombia%e2%80%99s-highest-judicial-institutions/

The President and the Courts: 

Uribe's Attacks on Colombia's Highest Judicial Institutions

by Brent Buxton, COHA Research Associate

    * In a far-fetched move, Uribe accuses a Supreme Court Justice of
bribing a paramilitary leader to implicate the President in a murder
scandal

    * This is the latest incident in the tumultuous "parapolitics"
scandal surrounding Uribe's antagonistic relationship with the courts

    * Even though Uribe's charges threaten judicial independence, his
attacks invite no recrimination from Washington, contrasting with the
U.S.' past condemnation of Hugo Chavez's putative interventions in the
Venezuelan high courts

    * Uribe's stand could jeopardize his high-powered campaign for
further financing of Plan Colombia and advancing the free trade
agreement, which awaits a tough ratification battle in the U.S. Congress

As Colombia's corruption scandal continues to heat up, Colombian
President Álvaro Uribe has turned his anger on a longstanding nemesis:
the country's Supreme Court. In his most recent sortie against the
Court, Uribe released a statement on October 8 accusing Supreme Court
Judge Iván Velásquez of offering "benefits" to jailed right-wing
paramilitary leader José Orlando Moncada Zapata (alias Tasmania), if,
in exchange, Tasmania would testify that he had been involved in a
murder plot with the President. On October 4 and 5, Tasmania testified
in court that Uribe had been involved in a plot to kill another
paramilitary leader, Alcides de Jesús Durango. Almost immediately,
Uribe released a statement declaring that before the incarcerated
paramilitary leader delivered this testimony, the President had
received a letter from him claiming that he had been bribed by
Velásquez to make this accusation against the Colombian President.

Velásquez denies the allegation, saying that while he did visit
Tasmania in jail as part of his investigations, he never made any
mention of Uribe or made any common cause with the paramilitary leader.
The Supreme Court supports Velásquez' version of events, and condemns
Uribe for his badgering and interference with its investigation. Human
Rights Watch has also strongly criticized Uribe's statement, suggesting
that "his repeated attacks on the court itself are a threat to judicial
independence." For Uribe, charges placing him in a bad light could be
destructive to any prospects of the U.S. Congress approving the
proposed U.S.-Colombia free trade pact. Indeed, the Democrats are
already concerned by the Uribe government's reputation for scandal and
corruption, as well as Colombia's continued status as the Hemisphere's
top country for the murder of trade union leaders.

The "Parapolitics" Scandal

Velásquez's inquiries are part of a broader investigation which the
Supreme Court is undertaking to uncover corrupt ties between right-wing
paramilitary groups and Colombian politicians, with a number of them
allegedly being close to Uribe. Some 40 current and former congressmen
have been implicated in the scandal so far. Since their commencement,
these investigations have been uncomfortable for Uribe, to say the
least, as a steady stream of his supporters are being revealed as
"para-politicians" as their trials progress.

Findings of corruption are embarrassing enough, but association with
the paramilitaries, which for decades have repeatedly been established
as being heavily involved in the drug trade and in the sponsorship of
brutal death squads, is particularly damaging. In February, Uribe's
then-foreign minister, María Consuelo Araújo, was forced to resign
after her brother, a senator, was arrested on charges of collaborating
with the paramilitaries. Uribe's own cousin, Senator Mario Uribe, came
under investigation in September, and he resigned from his position the
following month. According to a Latin News report, he gave up his seat
"so that he [would] not have to be investigated by the Supreme Court
but rather by [Chief Prosecutor Mario] Iguarán," which he considered to
be a more favorable venue for such proceedings. Critics claim that this
is yet another attack on the court's credibility by the Uribe camp.

This scandal was only the latest stain on Uribe's controversial
paramilitary demobilization process. In June 2005, the Colombian
Congress had passed Uribe's controversial "Justice and Peace" law,
which serves as the legal basis for his paramilitary demobilization
plan. Under this measure, paramilitary members who openly participate
in peace talks by disarming and confessing to their crimes can receive
significantly reduced jail sentences. Human rights groups have been
strongly critical of these steps, saying that it is an affront to blind
justice to allow the paramilitaries – Colombia's worst human rights
offenders – to get off with pitifully inconsequential sentences, given
the gravity of their crimes. Former Colombian Minister of Defense,
Rafael Pardo, argues that the law "[sends] society a message that crime
does pay" and that victims of these brutal misdeeds have never been the
government's top priority in the justice process. Criticism has mounted
over the course of the demobilization process, as many of the supposed
demobilized fighters are, in fact, re-arming and returning to some of
their former haunts and picking up their only briefly interrupted
criminal activities, particularly drug trafficking.

Past Controversy

Uribe has long been in conflict with the national courts. At the end of
2004, the Colombian legislature granted him permission to run for a
second term, overturning the constitutional ban on consecutive
presidential terms. The Constitutional Court threatened to overturn
this ruling, citing irregularities in the proceedings, but in the end
it succumbed to popular pressure and upheld the decision. When it
became clear that the decision would be sustained, Jaime Araújo, one of
the court's judges and longtime opponent of Uribe, resigned in protest
over this patent trammeling of justice. Uribe's next major brush with
the Constitutional Court occurred in May 2006, and this time the court
was not cowed. It ruled that the provision of Uribe's "Justice and
Peace" law, which gave prosecutors only 60 days to investigate the
crimes acknowledged by demobilized paramilitaries, was
unconstitutional. The Court also required all paramilitary assets,
licit or illicit, to be given to victims as compensation.

Finally, in July of this year, the Supreme Court ruled against another
provision of the demobilization law; the law had permitted
rank-and-file paramilitary fighters to be tried as political criminals,
allowing them to be pardoned. The Court ruled that the paramilitaries
were actually guilty of the unpardonable offense of criminal
conspiracy. Its argument was that the paramilitaries are not political
rebels, but instead mercenaries who conspired with members of the
Colombian military and government. Uribe, in turn, accused the Supreme
Court of "ideological bias," because it does, in fact, recognize
detained left-wing guerillas as political criminals.

Judicial Independence: An Essential Component of Democracy

Uribe's critics adamantly maintain that the President's continued
attacks on the courts represent a threat to judicial independence and
the rule of law. His recent actions are described as contributing to
the erosion of Colombian institutions which has taken place during his
tenure. In a recent COHA report, Manuel Trujillo observes that Colombia
is beginning to fit the pattern of a "delegative democracy," in which
one elected leader is now given free reign to govern the country
according to his own judgment, with very little countervailing force at
work. This type of regime is incompatible with even 19th century
democracy, not to mention the network of institutions which have since
been developed and today are critical to a normally functioning
representative democracy, including an independent judiciary. This
incompatibility arises because these important institutions represent a
vital check on the power of the delegated leader. Among other examples,
Trujillo cites Uribe's overturning of the single-term limit for the
Colombian presidency as evidence that he is shaping the country as he
sees fit, as well as undermining important institutional checks on the
presidency.

Judicial independence has long been considered an important part of a
fully-functioning democracy. A recent cross-country study by Rafael La
Porta and others tests the links between judicial independence and the
exercise of constitutional review on the one hand, and levels of
democracy, political rights, human rights, and economic freedom on the
other. In their conclusion, the authors find that "checks and balances
coming from the judiciary are an important determinant of political and
economic freedom." Another recent study, by economists Lars P. Feld and
Stefan Voigt, finds that de facto judicial independence actually can
positively affect a country's level of per capita GDP.

Independence of the judiciary takes time to establish, and given
Colombia's explosive history, it cannot be considered as automatic.
Prior to the 1960s, the country's Supreme Court was relatively weak; it
is only in the last few decades that it has begun to gain significant
independence. Furthermore, the Colombian judicial system continues to
struggle against corruption, intimidation, and outright violence. For
example, in 1985, an armed team – probably hired by the Medellín cartel
– attacked the Supreme Court, burning documents needed to justify the
extradition of Medellín drug lords. Half of the justices were killed in
a bungled rescue attempt.

Conclusion

It is unclear exactly what motivated Uribe's most recent savage verbal
attack on the Supreme Court. According to a recent Latin News report,
it seems highly unlikely that Tasmania's testimony squares with the
truth, as it is doubtful that the President would risk everything he
has accomplished by becoming involved in such a gross scandal. On the
other hand, the report continues, it "seems equally far-fetched that
the Supreme Court would fabricate a case against Uribe even at a time
when relations between the court and the executive are in a critical
state." Given that Tasmania most likely lied both in his letter to
Uribe and in his testimony, it is unclear why Uribe would make so much
of the allegations that have been made against him, especially
considering the ease with which such claims made by paramilitary
criminal sources could be discredited. One clear possibility, however,
is that Uribe is trying to discredit the Court; indeed, that Uribe's
allegations followed so closely the Court's investigations of Mario
Uribe is obviously suggestive, a point Velásquez has publicly raised.

Washington's reaction to Uribe's recent actions has been minimal, in
contrast to the strong criticism of Venezuelan President Hugo Chavez's
changes to his country's Supreme Court in 2004. Chávez added seats to
the Supreme Court and, according to Human Rights Watch and others,
stacked it with his supporters.

Uribe has done many good things for Colombia – particularly in the area
of national security – but in the process he has contributed to the
erosion of important democratic institutions, and has confused his
personal interests with those of the nation. In terms of the magnitude
of the scandals surrounding him, he has been dubbed by some as the
Colombian Lula. The Colombian people and the international community –
especially the U.S., Colombia's major ally – would be wise to attempt
to persuade Uribe against further undermining the highest levels of the
nation's already embattled judicial system.