domingo, 15 de dezembro de 2013

"Recall" da Procuradoria na Colômbia

> ICONnectICONnect
> ///////////////////////////////////////////
> Checking Institutions and the Institutional Control of Politics

> David Landau, Florida State University College of Law
> This week, the Colombian National Procuraduria [a sort of National
> Attorney
> General or Inspector General] removed the leftist, democratically-elected
> mayor of Bogota, Gustavo Petro, from office and banned him from
> participation in politics for 15 years. The move is a fascinating look
> into
> the strength of Colombia’s judicial and non-judicial institutions and
> their
> mandate to control and cleanse popular politics. The Constitutional Court
> has been the subject of extensive scholarly commentary, but other
> institutions like the Procuraduria, Defensoria del Pueblo [National
> Ombudsman], and the Contraloria [Comptroller] are important institutions
> that have attracted much less attention.
> Petro is not a minor official; the mayor of Bogota, Colombia’s largest
> city, is often classified as among the most powerful and high-profile
> elected posts in the country. And unlike his predecessor Samuel Moreno, he
> was removed not for proof of corruption or similar activity, but instead
> for violations of law and malfeasance connected with a seemingly mundane
> issue: a change in the system of garbage collection. The heart of the
> decision was based on a finding that Petro switched the garbage collection
> to public entities which he allegedly knew “had no experience,
> knowledge,
> or capacity” to carry out the job. The garbage incident has served as a
> sort of symbol in the popular mind for an administration that has been
> plagued by accusations of poor execution. Members of the press are
> wondering whether the Procurador, Alejandro Ordóñez, is now the most
> powerful person in Colombia.
> The administration has questioned whether the Procuraduria should have the
> constitutional power to remove democratically-elected officials; the
> Minister of Justice suggested a constitutional reform to take away this
> power. The country’s chief prosecutor, another independent checking
> institution, criticized the constitutional design, noting that the
> Procurador aggregates within a single institution the power to investigate
> public officials (including elected ones), formulate charges, hold trials,
> determine sanctions by removing officials from office and/or taking away
> their political rights, and act as a second instance for appealing those
> decisions. The prosecutor also announced that he was opening an
> investigation into the process and evidence used by the Procurador. Petro
> meanwhile is preparing to file a constitutional complaint (tutela) and a
> complaint within the Inter-American system. The dispute has thus become
> legalized among a complex welter of different courts and non-judicial
> institutions.
> The broad powers of the Procuraduria to remove public officials can be
> seen
> as part of a broader tableau of very aggressive legal control of political
> action. The Criminal Chamber of the Supreme Court’s investigations and
> criminal trials of congress members, often for links to paramilitary
> groups, is noteworthy in comparative terms: at one point during the
> 2006-2010 term, about one-third of all Senators were under investigation
> for links to paramilitary groups, and a significant percentage of those
> elected to that term ended up in jail.
> Broadly speaking, this aggressive control of politics maps onto the
> institutional design of the Constitution of 1991. Meeting in the midst of
> political crisis and widespread violence, members of the Constituent
> Assembly sought both to rejuvenate elected political institutions like the
> Congress and to build a powerful set of checking institutions to control
> and improve political action. The Constitutional Court was close to the
> center of this effort but was far from the only such institution. The
> Congress and party system is generally held in very low esteem, which acts
> as a sort of ethos justifying aggressive activity by a range of
> institutions – the Constitutional Court itself, as well as the other
> checking institutions like the Defensoria, Procuraduria, Contraloria, etc.
> In other words, the thickness of the non-democratic institutional
> framework, and the boldness of those institutions, is closely related to
> continuing distrust of democratically-elected actors.
> The proliferation of an array of institutions and actors other than courts
> and designed to temper or improve democracy may be one of the most
> important recent developments in constitutional design. The scholarly
> literature that exists on institutions like Defensorias within Latin
> America suggests that they have an extremely varied set of powers and
> political roles. Even within a single country, behavior often varies over
> time depending on who leads the institution and its shifting relationship
> with other bodies. Ordóñez, for example, has taken a particularly
> prominent
> role within the Procuraduria, using the institution and its substantial
> powers to challenge the Constitutional Court on its recognition of
> same-sex
> marriage and the administration in its push to complete a peace process
> with the FARC. The Procurador has emerged as a powerful political voice.
> The Petro example shows how the line between law and politics is being
> renegotiated not only by courts, but also by a host of other
> constitutional
> institutions. These shifts are broader than the judicialization of
> politics, which is a phenomenon led by constitutional courts, but they
> stem
> from some of the same sources and carry some of the same risks.
> Suggested citation: David Landau, Checking Institutions and the
> Institutional Control of Politics, Int’l J. Const. L. Blog, Dec. 13,
> 2013,

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