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Colombian Constitutional Law - Leading Cases by Cepeda Espinosa, Manuel José; Landau, David (20th April 2017)

Part Three The Separation of Powers, 9 The President: Problems of Executive Overreach

From: Colombian Constitutional Law: Leading Cases

Manuel José Cepeda Espinosa, David Landau

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 17 October 2019

(p. 273) The President

Problems of Executive Overreach

Colombia has long possessed an exceptionally powerful chief executive. As noted in the Introduction, during the National Front period between the 1950s and the 1970s, the president become the main legislator in the system, using a combination of states of exception and delegated emergency powers to bypass Congress. This tendency worsened as the security situation in the country deteriorated and presidents relied increasingly heavily on states of exception, called at the time the “state of siege.” Statistically, the country existed under a state of exception most of the time in the 1970s and 1980s. The heavy reliance on emergency powers raised concerns involving the quality of deliberative democracy (decisions were made in a technocratic fashion, bypassing the legislature), the abuse of constitutional rights (presidents used emergencies to carry out measures, such as the use of military tribunals to try civilians, that were unacceptable in times of normality), and the basic legitimacy and effectiveness of the state (even emergency measures were seen as increasingly incapable of responding to rising violence and disorder).1

One key goal of the Constituent Assembly in 1991 was to restore a more balanced separation of powers by taking measures to submit the president to stronger forms of control while strengthening and rationalizing Congress. The executive branch is considered in this chapter, whereas the legislative branch is treated in Chapter 10. The Assembly did not want to create a weak president, but it did seek to subject the executive branch to greater legal constraints while limiting the amount of time that the country would spend in abnormal legal states. For example, the Assembly maintained three different kinds of state of exception, but placed new limitations on the conditions for their use, duration, and scope. It also limited Congress’s ability to delegate emergency lawmaking power to the president, and gave Congress new powers, such as voting motions of non-confidence on members (p. 274) of the Cabinet appointed by the president. Furthermore, the new Constitution included a range of institutions that were intended to check executive power as well as the actions of other political actors. These included the National Ombudsman and the Constitutional Court itself. Some powers were transferred to autonomous institutions, such as the Central Bank and other regulatory agencies. The National Inspector General and the Comptroller General, already existing organs, were granted more autonomy and powers. A new, independent National Prosecutor was created as an organ of the judicial branch, rather than the executive.

Since its inception, the Colombian Constitutional Court, like many other courts around the world, has wrestled with the problem of how to place effective limits on executive power. This is a topic, indeed, that is touched on in many other chapters of this book, for example on presidential restrictions on freedom of speech and of the press (see Chapter 5), presidential interference in the legislative process (see Chapter 10), and executive use of the constitutional amendment process to extend presidential term limits (see Chapter 11).

Even during times of institutional normality, the president before 1991 dominated the political order. The Court has tried to limit this power by subjecting executive powers to limits derived from the law and from the constitution itself, as noted in Section A below. Further, following the outlines of the constitution itself, the Court has developed a vision of the separation of powers that is flexible rather than formalistic—it invites harmonious collaboration among the branches in the pursuit of constitutional goals.2 In this conception, the separation of powers is linked to the underlying substantive values of the 1991 Constitution: its purposes are to carry out the fundamental purposes of the text, such as the safeguarding of human dignity and the attainment of a social state of law. As Section B shows, the Court has limited executive concentrations of power when those concentrations threatened the achievement of these fundamental rights and principles, even when those concentrations purported to serve core state goals such as the maintenance of national security.

Finally, Section C considers the significant changes in the regime governing states of exception since the enactment of the Constitution of 1991. As it shows, the Court’s doctrines since 1991 have exercised tighter control over declarations of states of exception themselves, as well as decrees issued during those states. Thus, although the states of exception found in the Constitution have not been rendered useless or impossible to deploy, the Court’s doctrines have tended to reserve them for unexpected and severe crises. The result of the Court’s doctrines and other institutional changes has been a sharp reduction in the percentage of time Colombia has spent in a state of institutional abnormality, from over 80 percent in the decades before 1991 to only about 18 percent in the 1990s.3

(p. 275) A.  Limiting Executive Discretion

A basic goal of the 1991 Constitution was to restrict the arbitrary action by both state and nonstate authorities that had historically plagued citizens of Colombia. The tutela was designed, for example, as an instrument allowing citizens to get rapid redress against state (and in some cases private) actions that threatened their fundamental rights. At the same time, in a modern administrative state, discretion is inevitable. In the decision below, the Court distinguished “discretion” from “arbitrary action” in a sensitive context involving pervasive security or health crises in prisons. Discretionary administrative action, the Court maintained, was subject to strict restraints found in both the law and the Constitution.

Moreover, in this decision the Court distinguished situations of legal abnormality during specifically-defined states of exception (examined in Section C below) from situations of legal normality. During states of exception the president may temporarily combine his normal executive functions with some legislative functions, and may also suspend compliance with some existing legal requirements. But during normal periods, the executive branch must act in strict subjection to all existing legal and constitutional principles. Given the characteristics of Colombian history, and particularly the very powerful president that existed prior to 1991, these principles have proven significant for subjecting the president to the legal order and to the Constitution itself.

Decision C-318 of 1995 (per Justice Alejandro Martinez Caballero)

[In this decision, the Court analyzed the constitutionality of Article 168 of Law 65 of 1993,4 which allowed the director of the prison system to call a “state of prison emergency” in some or all of the country’s prisons in cases of grave threat due to disorder (p. 276) and violence or public health. Once such an emergency has been called, it allows the director to carry out various measures to overcome it, including the construction of new buildings and the transfer and isolation of inmates. In a unanimous decision, the Court upheld the law in question, while specifying limits on the exercise of discretionary administrative power in this and other contexts.]

The petitioner questions the attributions given to the administration in the prison emergency because it considers them … because of their breadth … to violate the rights of inmates. In addition some intervenors question the legitimacy of these states of emergency because they argue that the regime creates a state of exception that is not contemplated by the Constitution, and therefore the instrument is unconstitutional….

This Court does not share the opinion of those intervenors who assimilate the accused norm to the states of exception regulated by Articles 212 to 215 of the Constitution, because the state of prison emergency has a totally different legal meaning. The constitutional states of exception have, as one of their essential characteristics, the temporary assumption by the executive of legislative powers with the goal of overcoming a crisis….

During those states of exception, the president combines both administrative and legislative functions, with different intensities and limitations depending on the exceptional situation being confronted. In development of the foregoing, during a constitutional state of exception, the executive has the ability to restrict constitutional rights, but like the legislature cannot ignore their essential nucleus….

In contrast, the state of prison emergency does not imply that the executive assumes legislative functions because, in activating this instrument he is only carrying out the restrictions on the suspension of the right to physical liberty already determined by the legislature upon regulating the prison regime and fixing limits to the state of emergency at issue. Thus, the state of prison emergency is an administrative instrument, which simply … allows the authorities to abbreviate certain procedures … because of the crisis of security or health that they are confronting….

For all of the foregoing reasons, the Court holds it to be perfectly legitimate for the law … to permit the Director of INPEC to decree a state of prison emergency. The hypotheses contemplated by the law are perfectly reasonable given situations of urgency, like those that gravely and imminently threaten or disturb order and prison security, or grave situations of a public health nature that expose people at the prison to contagion, or hygienic conditions that do not permit one to live there, or when there are serious threats of public calamity….

The Court believes that the essential element of the analysis … is the administrative nature of the powers of INPEC…. This means that the accused norm cannot be interpreted in an isolated way without taking into consideration the norms and principles that govern the exercise of powers of the administration, especially when these have a discretionary content….

This point is essential because the actor … insists that the attributions of INPEC are indeterminate, since its second clause allows the director “to take the (p. 277) necessary measures to overcome the situation presented.” From this he infers that the law confers discretionary functions that are unconstitutional because they are outside of any control, they might legitimate arbitrary conduct by INPEC, and they ignore the submission of the administration to the principle of legality.

The Court does not share this argument because one cannot confuse discretion with arbitrariness….

This difference between discretion and arbitrariness has a clear constitutional foundation in Colombia, since the Constitution allows administrative discretion but excludes arbitrariness in the exercise of public functions. Therefore, discretionary power is a necessary and essential legal tool in certain cases for good public administration, as it provides the public administrator with the possibility of making decisions, and using good judgment, without the rigidity of a detailed regulation that does not correspond to the situation that is being dealt with. Arbitrariness, however, is excluded from the Colombian legal order. In fact, even though the Colombian Constitution does not expressly include “a prohibition on arbitrariness by public authorities,” as stated in Article 9-3 of the Spanish Constitution, this principle can be derived from specific norms of our Constitution. Thus, Article 1 defines Colombia as a social state of law founded on the prevalence of the general interest, which excludes the possibility that officers may exert their functions in a whimsical manner. In addition, Article 25 sets limits on the purposes of the state and the objectives of public authorities, and states that attributions exercised by authorities must be aimed at carrying out constitutional values and not at satisfying the officer’s whim. This is complemented in Article 123,6 which expressly states that public servants must serve the state and the community, and that they must carry out their functions in the manner foreseen by the Constitution, the law and regulations. Finally, Article 2097 defines the principles that guide administrative agencies, and it pinpoints that these agencies are intended to serve general interests and that they must exercise power in an egalitarian and impartial manner.

In agreement with this, administrative power, and especially discretionary power, is subject to the principle of reasonableness, which states that under no circumstance may power become indefinite or limitless. In fact, it is subject to constitutional parameters because “in the social state of law, competences are regulated, and (p. 278) the margin of discretion for public officers must be exercised within the philosophy of material values and principles of the new Constitution…. ” [T]he power mentioned above is also limited by the definition of its field of action, by the determination of the purposes to be achieved, and by the determination of the means by which the action must be implemented. This means that power must always be understood as limited by the execution of specific means that have been assigned by the legal order. Thus, administrative power is only legitimate so long as it is exercised in accordance with the circumstances … established by the law that grants the power. That is why … the Administrative Code, under whose definitions the Court considers that INPEC’s faculties must be interpreted during the state of prison emergency, clearly pinpoints that “as long as the content of a general or specific decision is discretionary, it must be adapted to the purposes of the law authorizing it, and it must be proportional to the facts that originated it.”

Thus, discretionary action does not elude judicial control: it is possible to request annulment by the administrative courts of a discretionary act, either because the motives invoked to justify the act are false or because the act does not aim at achieving a legitimate public interest….

In the case under examination, the state of prison emergency grants administrative power of a discretionary nature to the INPEC Director …, which provides him or her with flexibility as to the appropriate circumstances in which to adopt a specific action. In fact, the officer making the decision has a set of options among which he must decide according to criteria of opportunity and convenience and which are restricted, of course, by the law that granted the discretionary power.

This discretion seems reasonable because the unforeseen and complex nature of the security and sanitation crisis in the prisons justifies the law in granting authorities broader freedom to make, within the law’s framework, the most convenient decision to face the crisis, since the law cannot determine in advance, in an abstract way, all the measures that are legally susceptible to be adopted. But … the liberty to make decisions under the boundaries of the law set cannot be confused with arbitrary action, which is action outside of the legal framework….

[T]he Director of INPEC, both at a general level and when exercising discretionary powers derived from the state of emergency, is obligated to respect the constitutional rights of inmates. This limitation works, according to this Court, in a double sense. On the one hand, the prison authority cannot, under any circumstance, carry out any conduct that violates the constitutional rights that imprisoned persons retain…. On the other hand, when it is necessary to limit a right, the prison or penitentiary authority has a duty to take measures that are proportional….

In particular, the Court finds that the measures adopted during the prison emergency cannot have the character of punishment against inmates, since they should be aimed exclusively at “overcoming the situation presented” as stated expressly … in the article. If those powers could give a power of punishment to the Director of INPEC, … then the article would be unconstitutional because it would violate the rules of due process and the principle of legality … in administrative sanctions….

(p. 279) In the Colombian legal order, a transfer is not a punishment, but rather a managerial decision given available physical resources….

In turn, isolation has two dimensions: it is both a sanction and a preventive action. Considering the nature of the state of prison emergency, the Court holds that the isolation of inmates contemplated in [the law] is of a preventive nature, as its sole purpose is to prevent the extension or continuation of the critical situation[. Thus,] the use of emergency powers to impose isolation to penalize inmates rather than to overcome the emergency would be an abuse of power. Once the security and sanitation problems have been overcome, the isolation must cease, given its preventive nature.

Additionally …, the adoption of these two specific measures must be appropriate, reasonable, and proportional and must respect the constitutional rights of inmates. For example, isolation that constitutes cruel or degrading treatment or which violates the dignity of inmates are not allowed, because these measures not only violate the Constitution but also clear norms of international human rights. Additionally, because of the principle of proportionality, the prison authority can only impose isolation when it is impossible to adopt appropriate measures for the overcoming of the crisis that are less harmful to the constitutional rights of the inmates.

Thus, the [law] does not confer on the Director of INPEC any arbitrary or unlimited power but a discretionary power that is subject to judicial and disciplinary controls … according to which the powers derived from a state of prison emergency should be interpreted in light of general and constitutional principles governing the validity of administrative acts. Under that understanding, the Court finds no constitutional flaw in the [law]….

B.  The Separation of Powers and National Security

For many years, Colombia has been in the midst of an internal civil conflict of varying degrees of intensity. The law examined here was passed during a difficult period in which security concerns were pressing. In response, Congress passed Law 684 of 2001, the so-called National Security Law. The law was broad and ambiguous in its core provision; however, it gave the president sweeping powers to safeguard national security. First, it created a new institution of government called the National Power, which was defined as the “capacity of the Colombian state to offer all of its potential in order to respond to situations that endanger the exercise of rights and liberties, and to maintain independence, integrity, autonomy, and national sovereignty….” The National Power was directed by the president and his National Security Council, and charged with planning and implementing programs related to security, economic prosperity, and democracy. The law also authorized the president to call for a general national mobilization during states of exception.8 Finally, (p. 280) the law contemplated the creation of “theaters of military operations”9 in conflict-prone areas. These theaters would be governed by special rules: they would be under the power of military authorities commanded directly by the president, and their population would be required to register their name, address, and occupation with these authorities.

In the seven-to-two decision below, the Court struck the law down in its entirety. As the excerpt shows, the Court focused on two general problems with the law. The first was a violation of basic principles of the separation of powers, as according to the Court, in the name of public security it potentially allowed the president to consolidate too much power that properly belonged to other institutions of government.

The Court’s vision of the separation of powers laid out in this decision is flexible—it emphasizes the statement in Article 113 that institutions of state have “separate functions” but should “cooperate harmoniously” in order to achieve fundamental constitutional goals including the safeguarding of human dignity and other basic rights and the social transformation of the state through the achievement of a social state of law. At the same time, the Constitutional Court’s conception of the separation of powers is closely tied to the underlying substantive values of the Colombian Constitution. In effect, the Court emphasizes the role of restrictions on executive power in defending fundamental constitutional and human rights. Along these lines, one basic principle commonly found both in Colombian and comparative law is the “legal reserve” principle—restrictions on constitutional rights should ordinarily be established through democratic debate in Congress, and not through the unilateral action of the executive.10 In the Court’s view, the concentration of power in this law threatened these underlying constitutional principles.

A second problem identified by the Court was a blurring of abnormality and normality, or in other words the bleeding of standards temporarily applicable during states of exception into permanent ordinary law. The Constitution might tolerate some concentration of executive power and limitations on individual rights as a temporary measure during (p. 281) properly declared states of exception in response to true public crises (see Section C below), but it does not tolerate these measures as a permanent state of affairs.

Decision C-251 of 2002 (per Justices Eduardo Montealegre Lynett and Clara Inés Vargas Hernández)

Are the principles and basic institutional mechanisms of the national security and defense system included in [the law] in agreement with the principles and the model of the state established in our Constitution ….

One of the main goals of the Colombian authorities is the defense of national integrity and the preservation of public order and peaceful coexistence….

Accordingly, our Constitution authorizes the Congress to adopt a defense and security system through which authorities in general, and especially the president, can establish policies and specific plans…. However, to be legitimate, any law on security and defense must fully respect the Constitution and the international commitments made by Colombia in the fields of international human rights and international humanitarian law. The law must abide by the Constitution, which is the highest set of norms, and it should also be adjusted to the democratic and social state of law established by our Constitution, which is founded on certain principles and institutional structures that cannot be disregarded by authorities….

The principle according to which the Colombian state is founded on human dignity, on the prevalence of the rights of man, and on service to the community, has normative consequences that are very precise, both at the general level and particularly in the design of strategies of security and defense.

That constitutional formula proscribes any trace of authoritarianism. In effect, as is known, totalitarian states, like Nazism and fascism, which developed in Europe between the two world wars had some distinctive features: they were not only regimes of terror but also nations in which there were no limits between state and society, in fact society was absorbed by the state. Also, in these types of societies people were at the service of the state, which was considered an end in itself. In radical opposition to that type of philosophy, the Constitution of 1991 … makes dignity and the rights of the person the basis of the state…. Thus, it is clear that our constitutional order proscribes policies that would permit an absorption of society by the state, or the instrumentalization of persons for the aggrandizement or glorification of the state.

These characteristic features of the Colombian State have evident implications for security and defense policy. If our state is founded on human dignity and rights, then the preservation of public order is not an end in itself, but, as established by the Court, it is “subordinated to the respect for human dignity,” and, therefore “preserving public order by overturning people’s freedom is incompatible with democracy.” Furthermore, if the state serves the community and the people, then obviously its authorities should protect and safeguard the security of persons instead of involving people in the protection of state security.

It is clear that adducing the general interest or the need to secure peaceful coexistence and public order cannot justify per se limitations or restrictions on (p. 282) constitutional rights, since there is no point in sacrificing these rights to allegedly ensure the conditions required to enjoy them….

[I]t is the duty of the state to safeguard basic public peace and the conditions for peaceful coexistence, as without them people would be unable to fully enjoy their rights. This duty is so important that international instruments grant power to authorities when faced with especially serious situations to decree states of exception and to restrict the enjoyment of certain human rights. However, the obligation of states to ensure peace and order does not mean that authorities may forget their duty to respect and protect human rights. Therefore, security policies must always respect the limits imposed by human rights….

The Court notes that the foregoing legal demands, derived from the basic constitutional formula that defines the Colombian state, continue operating in situations of armed conflict like the one that this country has experienced for many years. In effect, not only are the constitutional limits applicable to those situations but also, the Constitution establishes expressly that in “all cases” the rules of international humanitarian law must be respected.11 International humanitarian law places minimum limits on the protection of human rights during armed conflict. This signifies that the basic principles of international humanitarian law, explained in detail by this Court in prior decisions, establish limits for security and defense policies.

[The Court next emphasized the importance of the principle of the separation of powers for security policy.]

[T]he separation of powers is … an essential mechanism for avoiding arbitrariness, maintaining the exercise of authority within permissible limits, and ensuring liberty and security. The logic of this disposition … is essential: the division of the public function between different branches allows power never to rest in the hands of one person or entity, so that the various organs can control each other reciprocally….

The constitutional need to submit state action to law, and the principles of the separation of powers and popular sovereignty, have the following direct consequence: the law plays a transcendental role in the regulation and restriction of constitutional rights. In effect, in general the law establishes … a legal reserve for the regulation of constitutional rights….

This legal reserve in the limitation and configuration of constitutional rights serves two purposes: it is a mechanism to avoid arbitrariness, because not only does it ensure that individuals know their rights but also stops the government from unjustifiably restricting them. The principle of legality is therefore a development of the rule of law. But it is also a development of the democratic state, because it allows restrictions on rights associated with certain security policies to be broadly debated in the paradigmatic democratic institution, which is the Congress….

The definition of Colombia as a social state of law, the separation of powers, and the principle of legality, have obvious consequences regarding policies of security and defense. On the one hand, although the president has the responsibility to (p. 283) ensure public peace and there is a duty of collaboration among state institutions in this field (Article 11312), security policies cannot infringe the principle of the separation of powers. It would be illegitimate then in the field of security and defense for all state bodies to be subjected to the government…. Also, given our legal framework, restrictions on constitutional rights must be established through a law, and if they refer to basic aspects of fundamental rights, they must be incorporated in a statutory law. Finally, the law must define in detail the specific obligations derived from the duties of citizens regarding public peace.

A systematic read of the law shows that its core is the so-called “National Power….”

According to Article 3 of the law, the National Power is the “capacity of the Colombian state to offer all of its potential in order to respond to situations that endanger the exercise of rights and liberties, and to maintain independence, integrity, autonomy, and national sovereignty…. ”

[A] careful read of the [law] allows us to conclude that the National Power is not simply a reference to already existing state bodies and institutions, [but rather] the law seeks to create a new institutional reality—this National Power—with specific functions, duties and bodies….

[T]he law at issue would create a power-above-powers, the so-called National Power, which would have preeminence over the other branches of government in everything concerning national goals to be freely defined by the president himself with the support of the high commanders of the armed and police forces…. [T]he National Power will cover the entire state, including the Congress and judiciary, and it is directed by the president and the National Security Council, which is composed of governmental agents and high military and police officials. In turn, the distinct components of that National Power, which includes the other branches of government, must adjust themselves to the policies established by the government, since the law establishes that national defense is “the integration and coordinated action of the National Power.” Finally the objectives to be achieved by that National Power are not only defined by the president with the direct assistance of military and police officials, but also have enormous breadth because they relate to almost all aspects of life[. T]he law states that they include the provision of means and mechanisms to make Colombia safer and more prosperous “especially in three spheres: achieving security with effective diplomacy and military forces ready to fight and win, increasing the prosperity of the economy, and promoting democracy.” This signifies that under the law, the National Power is not only occupied with the classic functions of security, defense, and conservation of public order, but projects over almost all spheres of life for Colombians, and thus the National Power could become involved not only in models of development but … also in the general political dynamic….

(p. 284) No further analysis is needed to conclude that the National Power, as it has been regulated by this law, clashes directly with at least four basic constitutional principles: The separation of powers, the democratic principle, the preeminence of civil over military authority, and the president’s command over the armed forces.

On the one hand, the law under examination ruptures the separation of powers because it subordinates the other branches of government to a National Power controlled by the president. In fact, this provision not only disregards the institutional framework established by our Constitution, which enshrines the independence of the three branches, but it also results in an excessive concentration of powers in the president, which is contrary to the rule of law, as reciprocal control among state bodies would disappear and all the branches would become part of this supreme national power in the hands of the president. This means that the law orders a fusion of the branches which the Constitution has separated in order to carry out what the president wishes, which not only threatens the separation of powers but also the rights of persons.

On the other hand, and which is equally serious, the National Power violates the democratic principle at least for the following two reasons: first, national goals are set exclusively by the government with no participation by the Congress, the main forum for democratic debate; … while it is true that the president is charged with conserving and reestablishing public order, that task should be exercised not only within the guidelines established by the legislature, but also subject to political control exercised by Congress.

[Second], the definition of the main elements included in security and defense strategies would be totally beyond the supervision and control of citizens and elected bodies. [Under the law,] the distinct primary and secondary documents are written by the Ministry of Defense and in part evaluated by the National Security Council to later be approved by the president, which signifies that neither the Congress nor the citizenry can be directly involved with their design. And if that were not enough, all those documents and deliberations are secret, since [the law] establishes that the primary and secondary documents, as well as the deliberations and acts of the councils, have a classified character for an indefinite period of time. One notes that those documents and deliberations do not refer exclusively to public order but also to economic, social, and political themes, as has already been explained, which shows the gravity of the effect on the principle of publicity….

Lastly, the institutional design of the National Power undermines the principle requiring the subordination of military authority to civil authority because it undermines the principle that the police force should not deliberate on national policy (Article 21913). The reason is simple: the development of this National Power rests on a so-called planning activity, which implies the drafting of documents containing the goals of the security and defense system, as well as the different plans and programs (p. 285) required to achieve these goals…. The law orders the high command of the police force to discuss Colombia’s challenges regarding political, economic and social issues and to design permanent strategies and plans to face such challenges.

The foregoing considerations are sufficient to declare the law creating the national power to be unconstitutional. But the situation may be even more serious, because that figure could affect other principles and constitutional values as well, since it may involve citizens in the National Power….

[T]he National Power and the security and defense system go beyond the sphere of the state because they imply the eventual permanent mobilization of the entire population to accomplish very broad “national goals” whose design corresponds to the Ministry of the Defense and to the high command of the police force, and which would be approved by the president. This institutional framework is totally inadmissible from the point of view of our constitutional principles because it not only infringes several provisions of the Constitution, but it also creates a type of state which is clearly incompatible with the fundamental constitutional regulations defining the nature of the Colombian state. In fact, besides violating the above mentioned constitutional principles (the democratic principle, the separation of powers, and the subordination of military authority to civil authority), the law also opens the way to the establishment of a totalitarian state by incorporating private sectors and individuals in the National Power, thus disregarding the autonomy of civil society and seriously affecting pluralism.

[T]he Court’s analysis shows that the contested law would blend society and the state within one single National Power headed by the president, who would set national goals that all Colombians would need to support, and this is clearly contrary to the constitutional definition of the Colombian state. As has been explained in detail in the present decision, our Constitution recognizes the autonomy of civil society, as well as the political and ideological freedom of individuals, and it opposes any totalitarian effort aimed at the absorption of society by the state….

The foregoing violations of the autonomy of society and pluralism are supplemented by the manner in which this law imposes open-ended obligations on citizens in matters of public order, by incorporating them into the National Power and the system of security and defense.

The duties placed on individuals should be governed by the legal reserve principle …, the obligations of people must be determined by the legislature, which should determine not only their scope but also the sanctions that can be imposed for disregarding them.

This law opens the door to the imposition of duties outside the law, since it incorporates individuals into the National Power and submits them to the direction of the government in order to achieve broad objects defined by the president. In other words, it permits duties to have a source other than the Constitution or law. Individuals not only must come to the mobilizations decreed by the government but must also be subject to duties not specified by the law and outside of democratic processes….

(p. 286) [The Court went on to consider some of the problems with specific provisions of the law. In particular, it examined the provisions creating theaters of war governed by military commanders rather than civilian authority and in which all citizens would need to register their name, profession, and address.]

[T]he norm says that the governors and mayors will be subject to the commanders of their theaters of operations, which violates the democratic principle of the primacy of civil power above military power. That situation casts aside the purpose of having limits between state and society, because as the Court has said: “The basis of the separation between the civil and the military is not a functional distribution of state tasks, but an essential principle in the organization of relationships between the state apparatus and the governed, which can be expressed as follows: the exercise of the public forces must be the minimum necessary to maintain the conditions of liberty permitting the exercise of fundamental rights. The enormous destructive capacity of the military power and its invasive and defense connotation makes it an improper entity to manage the everyday security of citizens.”

[T]he Court has accepted that when a state of exception has been declared, limits on the freedom of movement can be established in such a way that circulation is temporarily restricted. However, we have also concluded that those restrictions cannot go to the extreme of provoking the uprooting of persons….

[The law] designs a mechanism for registration of the population and demands that people send information when they change their residence…. It is broader [than measures considered in the past during states of emergency] because it includes a duty to reveal one’s profession or office, which threatens other fundamental rights. Think for example of the situation of an activist belonging to a contested political group or a priest for a minority religion. The limitation on the freedom of movement and other rights through this mechanism does not help to protect liberty, but on the contrary facilitates the total control of the state over its subjects….

[The Court finally discussed an argument made by some intervenors, according to which the “theater of operations” concept should be held constitutional because the Court had previously upheld “public order zones” during a state of internal commotion declared in 1996:]

As one can easily appreciate, the proposed analogy actually demonstrates the unconstitutionality of the measure. A careful analysis of the nature of the special zones of public order shows that they only make sense within a state of exception…. And it is within that context that the jurisprudence should be interpreted.

In accordance with Article 27 of the American Convention on Human Rights …, the suspension of rights can only be carried out during states of exception and during periods of time that are strictly limited by the demands of the situation. Thus, in order for the theater of operations to be able to limit the rights of persons, it would have needed to be conditioned by the prior declaration of a state of exception. That did not occur here, since as the law states, theaters of operations may be established [by the president] during situations of normality….

The Court clarifies that the foregoing argument does not mean that the design of the law at issue on theaters of operation can be adopted during a state of exception, (p. 287) since the stated design—including the registration and control of the population and the loss of the supremacy of civil power to military officials—are materially unconstitutional, including during states of exception. We simply point out that the present regulation ignores the distinction between normality and abnormality defined in the Constitution and in human rights treaties….

We cannot sustain that there are mechanisms for restricting rights that are more serious during states of normality than during states of exception. The state as a whole requires a system of security that protects the legal order…. However, that objective cannot be carried out through any means, which would end up instrumentalizing people in the service of the state and forgetting that the true relationship should be the opposite. The existence and function of the state can only be justified by service to society. In consequence the Court concludes that the figure of the theater of operations created by [the law] is also unconstitutional.

[The Court thus struck down the entire law. Justices Marco Gerardo Monroy Cabra and Rodrigo Escobar Gil dissented and argued that the majority had misinterpreted the meaning of the law. They stated in part that: “The three most important concepts in the law [the National Power, the theater of operations, and national mobilization] could have been interpreted to be in agreement with the Constitution; such a [conditional] interpretation should have been accepted out of respect for democracy …; The majority of the arguments adduced to declare [the law] unconstitutional come from things not explicit in it but which instead were inferred by the Court, which has led the Court to irrelevant conclusions….]

C.  States of Exception

Colombia has suffered public order problems of varied intensity, origin, and impact for two centuries, often deriving from violence and armed conflict. The 1886 Constitution allowed the president to declare a state of siege in case of grave perturbations of internal public order or of external war. After making such a declaration, the president could issue decrees with the force of law, signed by all the cabinet ministers. During a state of siege the president could restrict basic rights and suspend congressional statutes incompatible with the presidential decrees. No time limits existed. Legislative decrees were geared not only to solve public order problems but also to facilitate the exercise of governance by bypassing Congress and allowing the president to legislate directly. Thus, states of emergency became highly routinized within the Colombian system.

The Supreme Court of Justice, prior to the creation of the 1991 Constitution, held that it lacked the jurisdiction to substantively review the declaration of a state of siege because the issue was wholly within the competence of the president. It did review the legislative decrees issued during a state of siege, but it rarely struck them down. As the public order crisis deepened, the country was governed under a stage of exception with great frequency—82 percent of the time between 1970 and 1991.14

(p. 288) This excessive use of emergency powers caused several problems. First, it worsened the sense of human rights abuses in the country, as it contributed to a regime in which the government as well as guerrilla and paramilitary groups were routinely violating basic human rights. Second, it contributed to an institutional dynamic where the president was too strong and the other branches of government, particularly Congress, were too weak. Finally, the emergency regime itself lost efficacy as it came to be seen as a chronic and routine event, which could do little to overcome Colombia’s long-running civil conflict.

The 1991 Constituent Assembly saw the reform of the emergency powers regime as a major goal of the Assembly. After an intense debate, the Assembly decided to abolish the state of siege mechanism and replace it with a more nuanced regime consisting of three distinct instruments, each designed to deal with a distinct threat. First, the Constitution allows the president to declare a “state of exterior war” in the event of major international conflicts; this instrument has never been used. Second, it contemplates a “state of economic, social, and ecological emergency” for events threatening a “grave calamity” of an economic, social, or environmental nature—this instrument is examined in more detail in a note following the cases below. Finally, and most important, the Constitution created a “state of internal commotion” for internal civil conflict and disorder. This instrument is much more heavily regulated than the old state of siege.

The “state of internal commotion” is regulated by Article 213 of the 1991 Constitution, whereas Article 214 enunciates additional limitations that must be respected during any state of exception. The state of internal commotion may be declared by the president (with the signature of his entire cabinet) if there is a “grave disruption of the public order imminently threatening institutional stability, the security of the state, or the peaceful coexistence of the citizenry, and which cannot be met by the use of the ordinary powers of the police authorities.”

It is worth highlighting several key points limiting this state of exception. First, the state of internal commotion is limited in duration—it can be called for only 90 days, and this period can be extended only twice, with the second extension requiring the prior approval of the Senate. Further, the measures taken are not permanent, but rather expire at the end of the state of internal commotion. Second, there is a duty not to suspend “human rights [or] fundamental freedoms,” and “the rules of international humanitarian law shall be observed” in all cases. Third, any measures taken must be “strictly essential” to deal with the causes of the disruption. Finally, Congress was given the duty to adopt a statutory law further regulating these states of exception. Congress exercised this power by passing the Statutory Law of States of Exception (Law 137 of 1994); most of this law was upheld by the Constitutional Court in Decision C-179 of 1994 (per Justice Carlos Gaviria Diaz).

The general approach of the 1991 Constituent Assembly was to maintain the Constitution’s traditional distinction between normal and abnormal periods, rather than (as for example in the United States) trying to incorporate the management of true crises through a model of “business as usual.”15 At the same time, the new constitution attempted to (p. 289) place a number of different kinds of limits on these emergencies—textual restrictions on the calling of emergencies and the measures that may be used therein, limits based on international law, temporal restrictions on the length of emergencies, political control by Congress, and judicial control by the Court. In utilizing so many different kinds of limitations, the Constituent Assembly may have reacted to the difficulty of effectively controlling power in these moments, and uncertainty about which approach would ultimately prove effective.16

The constitutional text explicitly gives the Constitutional Court the power to review presidential decrees issued during states of exception. These decrees must immediately and automatically be sent to the Court for its review. However, the text is more ambiguous on declarations of states of exception themselves. Nonetheless, and in sharp contrast to the Supreme Court prior to 1991, the Constitutional Court quickly established that it had the power to review declarations of states of exception and could nullify the entire emergency if the facts were of insufficient gravity or nature to justify its declaration.

The Constitutional Court has since played a significant role in limiting declarations of states of emergency; indeed, this role has been called “one of the most important and original interventions of the Constitutional Court.”17 Presidents have attempted to declare a state of internal commotion seven times since 1991. Of these attempts, three have been declared totally unconstitutional (Decisions C-300 of 1994, C-466 of 1995, and C-070 of 2009), two have been partially upheld and partially struck down (Decisions C-027 of 1996 and C-802 of 2002), and two have been upheld (Decisions C-556 of 1992 and C-031 of 1993). Between 1991 and 2002, the country spent only 17.5 percent of the time under some kind of state of exception, down from over 80 percent in immediately prior decades.18 Since 2002, there have been no successfully declared states of internal commotion, despite the fact that between 2004 and 2010 the harshest and most successful crackdown on guerrilla groups occurred during the presidency of Alvaro Uribe. From 2010 to 2012 President Juan Manuel Santos continued the military offensive, and then initiated a peace process with the guerrillas without calling a ceasefire. Thus, the most effective policies concerning the armed conflict have been designed and executed without declaring states of exception.

1.  Review of the Declaration of a State of Internal Commotion

The president elected in 2002, Alvaro Uribe, took office in a difficult and violent environment in the country. He based his political campaign on the recovery of security in Colombia by means of a tough, confrontational policy called “democratic security.” He announced amendments to the Constitution, arguing that the legal framework in force, according to the interpretations by the Constitutional Court, prevented the re-establishment of order. The same day he took office, homemade rockets fired by the FARC guerrillas hit the presidential palace, just several meters away from the capitol building where the ceremony was taking place.

(p. 290) The new president quickly declared a state of internal commotion in order to enact measures to combat the guerrilla groups. The declaration rested on several key facts, among others: (1) killings and other attacks against defenseless civilians, as well as crimes against humanity carried out by organized armed groups with significant financial power due to their participation in illegal activities; (2) acts of terrorism in recent weeks against the civil population and state infrastructure (including the attack on the president’s official residence); and (3) threats to state officials from drug trafficking, extortion, and kidnapping.

The Court has reviewed declarations of states of exception since its inception in 1992. Nonetheless, President Uribe’s minister of the interior stated that the Constitutional Court lacked the power to control the constitutionality of the declaration of a state of internal commotion, as it was a political and not a legal act. He thus said that the declaration was being sent to the Court as a mere “gesture of courtesy.” Further, Article 3 of the declaration itself stated that “legislative decrees issued under and as a consequence of this declaration will be submitted to the Constitutional Court,” thus implying that the declaration itself would not be susceptible to the Court’s control. However, in the decision below, the Court examined the substantive constitutionality of the declaration using its accepted standards of review. Although it upheld most of it in a decision that was eight-to-one on its core argument, the Court also established limits on the scope of the state of internal commotion, effectively reducing it to a focus on truly exceptional events and on protecting potential victims.

Decision C-802 of 2002 (per Justice Jaime Córdoba Triviño)

[The Court began by recounting the context within which the 1991 Constitution dealt with states of exception, briefly examining the state of siege regime that existed before 1991.]

The abuses in the state of siege regime made it necessary for the Constituent Assembly of 1991 to construct a constitutional regime on states of exception that would be adjusted to the conditions of the democratic and social state of law. From the first debates of the National Constituent Assembly, serious questions were raised against the then-current regime of states of exception: the abuse of its nature as an exceptional mechanism for the reestablishment of public order and its transformation into a permanent mechanism for the executive to exercise exceptional powers; the erosion of the legislative power of Congress before the proliferation of norms of exception that ended up regulating all spaces of social life, with a consequent fracturing of the democratic principle and permanent restrictions on public liberties. Also, there was no distinction between the norms applicable to external war and for internal commotion, phenomena that have a distinct nature, and the powers conferred based on Article 121 of the Constitution were so broad that, in the words of the members of the Constituent Assembly themselves, in all cases the president was left with the attributions necessary to assume a total war.

For all of these reasons, it was necessary that the new regulation on states of exception consecrate greater powers for external war and fewer for events of internal commotion and, in relation to this, it was pertinent to establish limits tending to avoid excesses…. It is not difficult to conclude, then, that the reason for so many different provisions fixing limits on the power of the executive during states of exception was to prevent the excesses that had occurred with the state of siege….

(p. 291) Article 214 of the Constitution, as a limit on legislative decrees issued by the executive under states of internal commotion, prohibits the suspension of human rights and fundamental liberties.

By making reference to “human rights and fundamental liberties,” the Constitution refers to the rights and liberties recognized and guaranteed by what constitutional doctrine has called the constitutional block, that is, those legal norms that, even though they are not expressly consecrated in internal law, are fully applied in it….

In the case of the constitutional law of exception, the constitutional block is composed of the Constitution, the instruments of international humanitarian law, the treaties consecrating human rights and rights that may not be suspended during states of exception and the statutory law [of states of exception].

[The Court then considered the contents of the constitutional block, focusing on relevant provisions in the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights.]

(1)  Principle of intangibility of rights

The instruments exclude many rights from the scope of the extraordinary powers that are given to the executive during states of exception. In other words, one of the first limits imposed by the cited international norms is the impossibility of restricting, through exceptional measures, the essential nucleus of certain rights.

The American Convention considers as intangible the rights to legal personality, to life, to personal integrity, the prohibition of slavery and servitude, the principle against ex post facto laws, liberty of conscience and religion, the rights of the family, the right to a name, the rights of the child, the right to nationality, and political rights. The only intangible right in the [ICCPR] different from the ones already mentioned, is the prohibition against being incarcerated for the mere fact of owing a debt….

(2)  Principles of necessity and proportionality

The proclamation of a state of exception is only understood to be legitimate when it is motivated by a situation of grave danger to the life of the nation, or in the terms of the American Convention, a threat to the independence or security of the state. This [also] demands that the measures taken under the state of exception be strictly limited to those suitable to confronting the threat to the state, in other words, those which are necessary and proportional.

On this issue the European doctrine is relevant, which establishes that measures are legitimate only if (i) it is not feasible to use less serious measures, (ii) they are apt to contribute to the resolution of … the threat, (iii) the disruption cannot be ended through ordinary means, and (iv) there is no other measure of exception that will generate less impact on the protection of rights and guarantees.

(3)  Principle of temporality

The specific characteristic of the application of measures of exception are their limited duration in time; in this sense, the international instruments studied oblige the states to apply such measures only for a strictly necessary period of time to overcome the (p. 292) facts that are threatening the nation’s life. The principle of temporality also includes the need for the effects of the exceptional measures to have a defined duration and that, as a consequence of this criterion, the damage done to individuals affected by them must be repaired….

(4)  Principle of legality

The state of exception does not imply ignoring the basic postulates of the rule of law. International instruments demand that the state of exception be, above all, a system of powers subjected to the rule of law, with defined limits on state action, minimum requirements for measures adopted, and a list of applicable prohibitions.

From the principle of legality one derives that of judicial protection, on the understanding that it is precisely in the states of exception where we must reinforce mechanisms of control….

(5)  Requirements of form. Proclamation and notice

In addition to the principles that govern the utilization of states of exception and the restriction of guarantees, supranational norms set two procedural requirements whose purpose is to facilitate control by the other states in multilateral organizations. The first is the proclamation or declaration…. Notification, on the other hand, consists of the duty on the state to notify, through the Secretary General, the respective multilateral organization [of the declaration] and … the provisions it intends to restrict, the reason for those restrictions, and the date when those limitations should end….

[After making these observations, the Court analyzed its own competence to decide on the constitutionality of the declaration of a state of exception.]

[C]onstitutional norms affirm the power of the Court to determine the constitutionality of the declaration of a state of internal commotion. A systematic read of the text allows us to infer the following:

  1. (a)  States of exception are special regimes conceived for situations of abnormality, but they are regimes conceived within the law, and not outside of it. That is to say, every state of exception is a regime of law ….

  2. (b)  The Constitution has placed the declaration of a state of internal commotion under various formal and material protections. Since the Court has been entrusted with the protection of the Constitution (Article 24119), the control that it exercises also extends to the norms dictated based on the constitutional dispositions that regulate the declaration of such a state of exception….

  3. (c)  The Constitution is the norm of norms, the supreme norm. And in order for that superior legal nature not to be ignored by the powers of state, the Court has been entrusted with ensuring its supremacy. Within that framework, state entities may exercise the powers conferred upon them, but they must do so without ignoring the Constitution’s supreme normative character. In the present constitutional regime (p. 293) there are no powers to issue legal acts without limits…. And since the imposition of those limits makes no sense if an instance of control is not set up, we can conclude that it is also true that there are no legal acts without an instance of legal control….

  4. (d)  The constituent assembly has subordinated the declaration of the state of internal commotion to the existence of certain factual states of affairs and to a judgment about the sufficiency of ordinary police measures. It is fundamental that these requirements be met….

It must thus be inferred that the Court does control these [declarations], and that this control must be adequate to defend the integrity and supremacy of the Constitution. And it is clear that this can only be achieved if the control is both formal and material.

[The Court thus declared Article 3 of the decree unconstitutional, as it suggested that the Court lacked competence to control the constitutionality of the declaration of a state of internal commotion and could only control decrees issued during the state of exception. The Court then proceeded to define the nature of its control of these declarations, emphasizing that there are three separate requirements from the text of the relevant articles—a factual finding that there is a “disruption of order,” a value judgment that the disruption is “grave” and “imminently threatens institutional stability, the security of the State, or the coexistence of the citizenry,” and finally a judgment that ordinary police measures are insufficient to overcome the problem.]

(a)  Factual Finding

The Constitution imposes this requirement when it states: “In case of … a disruption of the public order. …

[The president must verify] the occurrence of concrete facts, perceptible and consequently verifiable, that objectively generate an alteration of the conditions of security and tranquility demanded to exercise rights.

As an event of the phenomenological world, the factual presupposition under constitutional control is susceptible to an objective judgment. That is, the Constitutional Court must determine whether or not the disturbance of public order has occurred….

(b)  Value Judgment

The Constitution considers this requirement when it [allows a state of internal commotion] “in the case of a grave disruption of the public order imminently threatening institutional stability, the security of the state, or the peaceful coexistence of the citizenry….”

As one can see, the prerequisite does not involve a fact as such …, but rather involves a value judgment based on the factual finding. It is an evaluation related to the intensity of the disruption and its consequences, an evaluation that corresponds to the president as the authority in charge of preserving public order.

In accordance with this prerequisite, on the one hand, it is not just any disruption of public order that will satisfy constitutional requirements but only a grave one. However, that value judgment is not a subjective decision of the president because it depends on an objective perception of the intensity of the disturbance.

(p. 294) On the other hand, according to the Constitution, the alteration of public order, in addition to being grave, must imminently threaten institutional stability, the security of the state, or the coexistence of the citizenry. That is, the alteration of public order, as a verifiable factual presupposition, in addition to being grave, must have the possibility of threatening, of placing in severe danger [or] of generating a risk for those areas of protection. And that grave danger must be imminent, that is; it cannot be a danger that is proposed as a distant or remote possibility for the institutions, the state or the citizens, but an effective risk that may materialize at any moment….

[The Court’s role here] is to determine whether the evaluation carried out by the President of the Republic as to the alteration of the public order is arbitrary, and whether or not that evaluation made a manifest error of appreciation….

[T]hat is, once it has been established that the president’s evaluation is neither arbitrary nor the result of manifest error, there is no place for the Constitutional Court to interfere…. [All other issues] must be judgments of opportunity or convenience, judgments that, as is known, are completely foreign to the competence of the Court as an instance of legal control of the limitations set by the exercise of power.

(c)  Judgment on the sufficiency of ordinary measures

This requirement is imposed by the Constitution when it states that the president has the power to declare the state of interior commotion in case of a grave disruption of public order … “which cannot be met by the use of the ordinary powers of the police authorities.”

In accordance with this phrase, the declaration of a state of internal commotion is the extreme measure in a state’s legal and political agenda. It is the last resort to defend the Colombian people and the institutional structure that has been given to them, from the aggression implicit in the grave alteration of public order which in an imminent manner works against institutional stability. By virtue of this principle, the only time it is possible to use the state of internal commotion is when the ordinary legal tools that the state has do not allow it to stop the grave alteration of public order that threatens to dissolve the agreement that makes coexistence possible.

In this context, a disruption in public order is not enough for a declaration of a state of internal commotion. If it was, during long periods in which there was a disturbance in public order we would always be under a constitutional law of exception, that is, under a system of restriction of rights. But that would be opposed to the exceptional, temporary, and restrictive nature of states of institutional abnormality. To that effect, a grave disruption of public order that works in an imminent manner against institutional stability, the security of the state or the peaceful coexistence of citizens is also insufficient. This is because the ordinary constitutional regime cannot ignore the tensions in the life of a community and the frictions that are inevitable in the coexistence of human groups with distinct worldviews. Thus, what ordinary constitutional law regulates is not a nonexistent passive society but an agitated one; a social life that is dynamic…. [I]n the structure and functioning of the constitutional state there must be mechanisms to confront the grave disruptions of public order that threaten the democratic state. These include suitable institutional mechanisms such as those inherent to the criminal power of the state or … its monopoly on the use of force….

(p. 295) Within this frame of reference, the president is endowed with the power to evaluate the sufficiency or insufficiency of the ordinary attributions of the police to overcome the grave perturbation of public order…. [T]he methodology to be used by the Court is an objective judgment of whether or not his evaluation … was arbitrary, and whether he made a manifest error of evaluation.

[Finally, the Court applied this framework to the decree at issue. On the factual finding, the Court said:]

Three of the four facts generating the disruption of public order and used by the National Government to declare the state of internal commotion have been verified, since it was demonstrated with documents and figures that they have indeed taken place in the last two years. In relation to them, since there is an objective base, the declaration is legitimate.

This is so because multiple criminal acts have been demonstrated by irregular armed groups, such as attacks against defenseless citizens, violations of their human rights, the violation of the rules of international humanitarian law, and the commission of crimes against humanity; also included are terrorist acts and terrorist attacks against the infrastructure of essential services and, finally, acts to coerce local and regional authorities and their families, who are the legitimate representatives of regional democracy and also administrators of justice.20

[As to the value judgment, the Court concluded:]

The application of the objective test considering the value judgment that the president has carried out with respect to the facts showing an alteration of public order, leads the Court to conclude that he has drawn from the factual context implications that are reasonable in the actual context of public order in Colombia.

This is so because the evaluation made by the president of the Republic on the gravity of the facts and their potential to imminently threaten institutional stability, the security of the state, or the coexistence of the citizenry, did not go beyond constitutional limitations—an intensification and expansion of the armed conflict has taken place, as well as violations of exceptional dimensions of human rights and of international humanitarian law. Levels of public disturbance have undergone a qualitative and not only a quantitative change, in the nature of the acts of violence, which have translated into indiscriminate attacks against the civil population, as well as into selective attacks against state officials of all levels and against legitimate leaders of civil society, due to an increase in the capacity of lawless armed groups.

[Finally, the Court referred to the sufficiency of ordinary police measures:]

Among the ordinary attributions held by the president … one finds, among others, the granting of exceptions when a police regulation establishes a general prohibition; the issuance of clear, precise, motivated, written, and well-founded orders directed at individuals with the goal of maintaining and reestablishing public order; the employment of force when strictly necessary, if done in a proportional and necessary manner; the utilization of the public service of the police; the carrying out of captures and raids (p. 296) in accordance with the Constitution and the law; and finally the use of military forces when an alteration of public order cannot be resolved by the police alone.

Within this framework, it is clear that in order to overcome the grave alteration of public order affecting the country and its institutional stability, the ordinary attributions of the police are limited because they are not designed to confront intense situations of institutional crisis such as those invoked in the declaration of a state of internal commotion….

In that sense, the qualitative shift created by organized crime and terrorism and the massive and indiscriminate threat to local and regional democratic authorities requires a reconsideration of state strategies conceived for the maintenance and reestablishment of public order in circumstances of institutional normality. It is not under discussion that acts similar to those being carried out now have been part of the national reality for a long time and, therefore, it could be argued that Colombia is going through a structural abnormality [which] must be dealt with by means of permanent and general state policies and through the use of ordinary police powers from the president. Nonetheless, at the same time it is acknowledged that these acts … have acquired an unexpected intensity, that is, they have acquired a new qualitative dimension, in this same sense it must be inferred that the ordinary legal tools that the state possesses to face this unusual and destabilizing qualitative shift must also be endowed with more power….

As we have seen, sufficient elements exist to state the reasonableness of the president’s evaluation of the insufficiency of ordinary police power to face the grave disruption of public order affecting the country….

Nonetheless, the declaration of constitutionality … in no sense constitutes an endorsement by the Court of the decrees that may be issued under the state of internal commotion. Those decrees will be judged one by one to verify that they respect the Constitution, international human rights treaties, and the statutory law of states of exception.

In particular, the Court notes that the measures adopted under the state of internal commotion must respect … Article 213 of the Constitution, which establishes that they must be “strictly essential options to deal with the causes of the disruption and check the spread of its effects….”

[Thus, the Court generally upheld the declaration of a state of internal commotion. However, it struck down Article 3, which stated that “legislative decrees issued under and as a consequence of this declaration will be submitted to the Constitutional Court,” as it held that Article implied the Court lacked the power to review the declaration itself. Further, it struck down a statement in the declaration that Colombia had the “highest level of criminality” in the world, as the Court was unable to substantiate it. Justice Jaime Araujo Renteria dissented and would have struck down the entire declaration on the ground that “the state already has ordinary powers contained in many laws” to deal with the facts alleged. Two other justices would have held that some of the facts and measures alleged in the decree were insufficient to justify a state of internal commotion, but would still have partially upheld the declaration.]

(p. 297) 2.  Review of Decrees Issued during a State of Internal Commotion

If the declaration of a state of internal commotion or other state of exception is struck down by the Court, then, generally speaking, all emergency decrees issued during that state of exception are also void. But even when a declaration of emergency has been upheld, the Court will still review each individual decree to determine whether it is proportional to the emergency and whether it conflicts with rights found in the Constitution, international human rights treaties, or international humanitarian law.

After the declaration of a state of internal commotion in the prior decision had been upheld, President Uribe issued a series of decrees based on the declaration. Legislative Decree 2002 of 2002 was issued by the president, for example, in August 2002. The decree had two chapters.

The first chapter dealt with provisions intended to maintain public order throughout Colombia by limiting otherwise applicable rules concerning warrants in order to carry out an arrest or search. Generally speaking, these provisions established limitations on Article 28 of the Constitution, which establishes in part that “no one may be importuned in his/her person or family, sent to jail or arrested, nor may his/her home be searched except on the basis of a written order from a competent judicial authority, subject to the legal procedures and for reasons previously defined by statute.”

Articles 2, 5, 6, and 8, for example, allowed arrest of suspects, interception of communications, and raids and searches of homes and other properties based on “verbal communication of a previously written warrant” in cases where “there is insurmountable urgency and the need to protect a fundamental right in grave and imminent danger.” Articles 3 and 7 contemplated arrests and searches of homes without a warrant at all, whenever “there are circumstances that make it impossible to obtain such authorization, as long as there is insurmountable urgency and the need to protect a fundamental right in grave and imminent danger.”

The second chapter dealt with the creation of special public order zones, called Rehabilitation and Consolidation zones, in areas with significant guerrilla activity. These zones were seen as a mechanism for the military to fight guerilla and paramilitary activity in especially violent areas; within them, military and administrative authorities would temporarily be given the power to restrict certain fundamental rights.

Thus, Article 12 allowed the president to create Rehabilitation and Consolidation Zones by administrative decree. Article 14 contemplated restrictions on the right to travel and reside in each Rehabilitation and Consolidation Zone through measures such as curfews, military blockades, requirements for special permits in order to move freely through the area, and restrictions on the movement of persons or vehicles at specified hours or locations. Article 17 granted the military commander of the Rehabilitation and Consolidation Zone the power to collect, verify, keep, and classify information regarding persons and things located in those zones. Article 20 allowed for a 24-hour detention of persons found within the zones without their identification document, in order to verify their identity and determine whether they had outstanding warrants against them. Finally, Article 22 placed (p. 298) special restrictions on the movement and residence of foreigners within the zones. Before entering the zones, these foreigners were required to report to the governor or else face the penalty of expulsion from the country, and the governor was given the power to deny or authorize the foreigner’s request to move through or reside in the zone.

These measures generated an intense debate because of the restrictions on rights that they contemplated. Several human rights NGOs intervened opposing the legislative decree, while some groups representing victims of illegal armed groups that operated in the areas to be delimited as rehabilitation zones spoke out in favor of the measures. In Decision C-1024 of 2002 (per Justice Alfredo Beltrán Sierra), the Court in a divided judgment upheld some parts of the decree and struck down others.

The Court started its analysis by defining the general framework for limiting rights during the state of internal commotion, reiterating what was stated in Sentence C-802 of 2002. It noted that “legislative decrees dictated as a result of a declaration of a state of internal commotion are necessarily limited not only by the Constitution (Articles 213 and 214), but also by any laws that have not been suspended because of express incompatibility with that state, the statutory law concerning states of exception, and the international treaties and agreements on human rights and international humanitarian law which Colombia has ratified.” It then verified that the decree in question was linked to the facts underlying the declaration of the state of internal commotion, and concluded that “the decree … considered globally, maintains a connection with the decree through which a state of internal commotion across the entire national territory was declared.”

Next, the Court proceeded to examine each individual provision of the decree, beginning with the nationwide provisions restricting the right to a warrant. The Court struck down Articles 3 and 7, which allowed searches or arrests without a warrant whenever there was “insurmountable urgency and the need to protect a fundamental right in grave and imminent danger.” It found that the conditions to apply this power were too vague. “[There is] no precise determination regarding which authority is granted the power to make an exception to the inviolability of the private home and to permit it to be inspected or searched, which affects the essential nucleus of the right [to privacy]. Likewise, the norm does not specify … any definition of ‘insurmountable urgency’ or ‘the need to protect a fundamental right in grave or imminent danger,’ so the citizen is subjected to whatever the authority that wants to do the inspection or search thinks is insurmountable urgency and its free opinion as to whether there is a fundamental right in grave or imminent danger that must be protected. That is, the citizen is left at the mercy of whatever the authority determines …, which is contrary to Article 28 of the Constitution.”

On essentially the same grounds, the Court struck down the parts of Articles 2, 5, 6, and 8 that provided that a previously-obtained warrant could be communicated verbally in order to carry out an arrest,21 intercept communications, or search a home or other property whenever there was “insurmountable urgency and the need to protect a fundamental (p. 299) right in grave and imminent danger.” The Court found that the decree did not sufficiently explain why these provisions were necessary, and did not explain in clear enough terms the circumstances under which the restrictions would be used, because the standards simply repeated phrasing used in the relevant statutory law governing states of exception, without adding any additional detail.

The Court then considered the Rehabilitation and Consolidation zones. It upheld the power of the president to create these zones. However, it held that this power should be exercised via a legislative decree that would be examined by the Constitutional Court, and not a merely administrative decree that would be examined within the administrative court system, as the object of these measures would be to restrict certain constitutional rights. The Court also upheld most of Article 14, which established restrictions on movement within the zones, as these measures were connected with and proportional to the state of internal commotion, and contemplated by the statutory law regulating states of emergency. It upheld Article 20 allowing 24-hour detention of people found in the zone without their identification card, on the ground that this measure as well was connected with and proportional to the facts that caused the underlying emergency.

However, the Court struck down Article 17, which allowed the military commander of a zone to conduct a census of both people and things located within the rehabilitation zones; the Court made a distinction between a census of the people in the zones and the census of objects found there. “[T]o carry out a population census like the one foreseen in the decree, by virtue of which personal data are recorded by the state, not only about identity but also about each person’s residence, their workplace and their individual activities, exceeds the powers granted by the Constitution to the government when declaring a state of exception…. It is quite different to collect, verify, preserve and classify data on weapons, explosives, … ammunition and telecommunication equipment, or regarding vehicles and other transportation means, be they terrestrial, fluvial, maritime or air, that circulate in specific zones of the country …, which could be useful for reestablishing public order and adequate to the end for which the state of internal commotion was declared.”

Finally, as to Article 22, which restricted foreigners from entering the Rehabilitation and Consolidation Zones, the Court made a distinction between three types of foreigners: journalists who are protected by the freedom of press and the right to information, members of certain civil assistance organizations protected by international humanitarian law, and other persons. “Article 22 … cannot be applied to foreign or national journalists … as a prerequisite to perform the duties of their work in any part of the country. The only thing that can be required of them is that they demonstrate their status as journalists, and nothing else…. Likewise, foreigners who intend to carry out humanitarian work (p. 300) or health-related activities, or to provide religious assistance, cannot be limited either in entering, moving through, or remaining in the so-called Rehabilitation or Consolidation Zones, since a contrary rule would violate the norms of international humanitarian law…. In regards to all other foreigners …, the refusal to grant them the authorization foreseen in the decree must be specifically indicated and justified by circumstances of public order in a concrete case.”

The Court therefore struck down or clarified many parts of the law, while upholding many of the core provisions creating and limiting rights in the Rehabilitation and Consolidation Zones. It is worth pointing out that although the Court has sometimes upheld these kinds of zones as temporary measures during states of exception, it has been much less willing to accept them as permanent measures in ordinary laws. In Section B above, for example, the Court struck down the government’s attempt to enact similar measures permanently via an ordinary law. The Uribe government would later seek to enact somewhat similar measures in a permanent fashion through constitutional amendment. This attempt was also struck down by the Court on procedural grounds (see Chapter 11, Section A).

As has already been emphasized, states of internal commotion and the measures taken under them are limited in duration. They can only be declared for a term of 90 days, which can be extended twice (i.e., for a total of 270 days). The president may decide on the first extension on his own, with the signature of all of his cabinet ministers. However, a second extension requires the prior approval of the Senate. The 2002 state of internal commotion at issue here was extended once by the president, and Uribe then procured Senate approval for a second extension. However, the Constitutional Court declared its second extension to be unconstitutional on procedural grounds. In Decision C-327 of 2003 (per Justice Alfredo Beltrán Sierra), the Court held that this second extension had not been properly approved by the Senate, because the Senate had approved it less than halfway through the first extension, because the extension had been approved in a rushed and non-deliberative manner, and because the Senate failed to state its reasons for approving the extension in writing. Under the Colombian Constitution, all measures enacted during the state of internal commotion thus automatically ceased at the end of the first extension, 180 days after the state of internal commotion had first been declared.

Since 2002, one other state of internal commotion has been declared, in 2008. This declaration, also under President Uribe, was based on an extended strike by administrative officers of the judicial branch as well as by some judges across the country, which resulted in congestion of the courts, a slowing of judicial processes, and the release of several thousand suspected criminals either because they could not be processed into the judicial system or because the legal time frame for trying them had expired. But in Decision C-070 of 2009 (per Justices Humberto Antonio Sierra Porto & Clara Elena Reales Gutierrez), the Court struck down this declaration. The Court held that many of the basic facts in the decree were adequately supported, but that the declaration did not contain sufficient evidence to justify the requirement that the acts be of such gravity as to affect the institutional order, the security of the state, or the coexistence of the citizenry. Likewise, it held that the declaration did not evaluate the ordinary means potentially within the government’s reach to end the crisis.

(p. 301) Note on the State of Economic, Social, and Ecological Emergency: The Constitution includes another significant state of exception known as the state of economic, social, and ecological emergency. This instrument is regulated in Article 215 of the Constitution, which provides that “When events different from those provided for in Articles 212 [state of external war] and 213 [state of internal commotion] occur that disrupt or threaten to disrupt in serious or imminent manner the economic, social, or ecological order of the country or which constitute a grave public calamity, the president, with the signature of all the ministers, may declare a state of emergency for periods up to 30 days in each case which, in all, may not exceed 90 days in a calendar year.” The article also states that the president, once he has declared the emergency and justified it in writing, may issues decrees having the force of law so long as they are “slated exclusively to check the crisis and halt the extension of its effects.” Unlike decrees issued during a state of internal commotion, decrees issued during a state of economic, social, and ecological emergency are permanent in nature—they become permanent laws of the Republic and do not expire when the declaration of state of emergency expires. The one exception to this permanence is new taxes, which may only be declared provisionally and expire at the end of the next fiscal year unless adopted by Congress.22

During the period prior to 1991, the government often used states of exception to write many major pieces of economic and social legislation. In order to prevent this situation from recurring, the Constitutional Court has exercised tight control over these declarations. When the government has faced a genuine crisis based on new events of sufficient gravity, the Court has tended to uphold the emergency. Thus, the Court largely upheld a declaration in response to the deep financial crisis of the late 1990s (see Decision C-122 of 1999), the massive swindling of savings accounts by a Ponzi scheme fed by the laundering of the proceeds of drug trafficking and other illegal activities (see Decision C-135 of 2009), and a response to natural disasters such as those caused by earthquakes (see Decision C-216 of 1999).

However, the Court’s long-standing doctrine has emphasized that the government may not use a state of exception to respond to problems that are “chronic” or “structural” in nature. It has held that these problems should instead be dealt with by Congress through ordinary legislative processes. Several recent examples might help illustrate the point. First, about one year after the Constitutional Court issued its structural decision on healthcare, T-760 of 2008 (excerpted in Chapter 6 above), the Uribe administration declared a state of social, economic, and ecological emergency in the healthcare system. The emergency’s stated goal was to overcome a crisis in the system and to comply with the Court’s decisions in this area. However, in Decision C-252 of 2010 (per Justice Jorge Ivan Palacio Palacio), the Court struck down the declaration because the problems in the system were of a “known, structural, recurring, and foreseeable” nature and thus should be dealt with by Congress rather than through extraordinary lawmaking. But in a highly unusual move, the Court left new taxes that had been created by decree to fund the system intact for an indefinite period, holding that the funding crisis in the system was “grave” and that the Court had the power to avoid negative effects stemming from its decisions.

(p. 302) The president elected in 2010, Juan Manuel Santos, used the device to tackle problems associated with the La Nina weather phenomenon in Colombia, which caused massive amounts of rain and disastrous flooding in parts of the country in 2010 and 2011. In Decision C-156 of 2011 (per Justice Mauricio Gonzalez Cuervo), the Court upheld an initial declaration for 30 days in December 2010, holding that the phenomenon constituted a serious crisis caused by new and non-structural events, thus justifying a state of emergency. The declaration sought mainly to free up funds for relief and reconstruction in affected areas of the country; it also created new taxes to fund the emergency.

However, when the president tried to declare a new emergency for an additional period in January 2011 to deal with the same crisis, the Court unanimously struck down the effort in Decision C-216 of 2011 (per Justice Juan Carlos Henao Perez). The Court noted that the Declaration of a State of Economic, Social, and Ecological Emergency, unlike a State of Internal Commotion, could not be “extended” for additional time, but rather had to be newly declared each time. The Court then struck down the declaration in its entirety, holding that the facts that were stated as justifying the new declaration were identical to those in the previous declaration, and that the government had already, in the prior emergency, established a series of permanent measures to deal with the crisis, which made new measures largely unnecessary.

Footnotes:

1.  See Antonio Barreto Rozo, La generacion del estado de sitio: el juicio a la abnormalidad institucional en la Asamblea Nacional Constituyente de 1991 (2013) (analyzing the influence of the history of states of exception on the 1991 Constituent Assembly).

2.  Article 113 states: “The branches of government are the legislative, the executive, and the judiciary. In addition to the organs which constitute them, there are others, autonomous and independent, for the execution of other functions of the state. The various organs of the state have separate functions but cooperate harmoniously for the realization of their goals.”

3.  See Rodrigo Uprimny, The Constitutional Court and Control of Presidential Extraordinary Measures in Colombia, 10 Democratization 46, 65 tbl.3 (2003).

4.  Article 168 of the law states in part: “State of Prison Emergency. The General Director of INPEC (the National Prison Institute), with the consent of the Minister of Law and Justice, can decree a state of prison emergency in some or all penitentiaries … under the following circumstances:

  1. a)  When acts that gravely or imminently disturb or threaten prison order and security take place;

  2. b)  When grave problems of sanitation occur, which expose the prison center staff and inmates to contagion, or when hygienic conditions do not permit coexistence in that institution….

In the cases dealt with in paragraph a) the General Director of INPEC has the power to take the necessary measures to overcome the situation presented, such as transfers, inmate isolation, rational use of extraordinary coercive measures and calls for support from the police. …

If staff members are involved in the events that alter the public order and security of the imprisonment center or centers, the Director of INPEC can suspend or replace them….

In the cases dealt with in paragraph b) the Director of INPEC will call on the health or emergency authorities, both national and departmental and municipal, to obtain their assistance, which those entities are obliged to provide immediately in coordination with the affected prison centers.

The Director of INPEC can order the transfer of inmates to indicated places. Likewise, penitentiaries may be closed down…. Also, budgetary transfers and direct contracting of works necessary to overcome the emergency can be carried out, after due approval from the Institute’s Directorate. The Director will also report the detainees’ new locations to prison authorities….

After the danger has been overcome and order has been reestablished, the Director shall report to the Directorate on the reasons for declaring the state of emergency and the justification for the measures implemented.”

5.  Article 2 states: “The essential goals of the state are to serve the community, promote the general prosperity, and guarantee the effectiveness of the principles, rights, and duties stipulated by the Constitution; to facilitate the participation of everyone in the decisions that affect them and in the economic, political, administrative, and cultural life of the nation; to defend national independence, maintain territorial integrity, and ensure peaceful coexistence and the enforcement of a just order. The authorities of the Republic are established in order to protect all individuals residing in Colombia, in their life, honor, property, beliefs, and other rights and freedoms, and in order to ensure the fulfillment of the social duties of the state and individuals.”

6.  Article 123 states in part: “Civil servants are at the service of the state and of the community; they shall perform their function in the form prescribed by the Constitution, statutes, and regulations.”

7.  Article 209 states in part: “The administrative function is at the service of the general interest and is developed on the basis of the principles of equality, morality, efficiency, economy, speed, impartiality, and publicity through the decentralization, delegation, and deconcentration of functions.”

8.  Article 62 of the law states: “[Mobilization] is [defined as] a permanent process of integration that consists in applying in all times and places the grouping of norms, precepts, strategies and actions that will permit the National Power to be adapted to … the public and private spheres in order to attend to and overcome any emergency provoked by a public calamity or natural disaster. During states of exception, the president may, by decree, call a National Mobilization.”

9.  Article 54 of the law states: “Theater of Operations. A theater of operations is understood as a geographic area where it has been proven that possible threats to our constitutional order, or to the sovereignty, independence, and integrity of our territory exist…. [T]he President of the Republic will be empowered to … activate these Theaters of Military Operations, establish their scope, appoint commanders, set the extent of their authority and establish special control and protective measures for civilians and for resources and facilities in the given area according to international humanitarian law. Once the Theater of Operations is established, the president will have immediate command and operational control over all police forces and state security bodies deployed in the area. Upon establishing the Theater of Operations, the president will notify the Public Prosecutor’s Office, the Inspector General’s Office, and the Ombudsman’s Office. In these Theaters of Operations, the president may confer on the commander … in the area the authority to carry out his instructions. Consequently, the instructions given by the president will be implemented immediately and will take priority over those issued by local governors and mayors…. The commander … will coordinate with the local civil authority on the registration of persons [in terms of their] identity, profession or trade, and address. Citizens who either change their address within the Theater of Operations or arrive there will have to appear before the corresponding civil authority for registration.”

10.  See, e.g., Allen Brewer-Carias, Constitutional Protection of Human Rights in Latin America: A Comparative Study of Amparo Proceedings 26 (2009).

11.  With respect to states of exception, Article 214 of the Constitution states in part: “Neither human rights nor fundamental freedoms may be suspended. In all cases, the rules of international humanitarian law shall be observed.”

12.  Article 113 states: “The branches of government are the legislative, the executive, and the judiciary. In addition to the organs which constitute them, there are others, autonomous and independent, for the execution of other functions of the state. The various organs of the state have separate functions but cooperate harmoniously for the realization of their goals.”

13.  Article 219 states: “The public force is not deliberative: It shall not be able to assemble except by order of the legitimate authority nor direct petitions except on matters connected with the service and morale of the respective corps and in accordance with an Act.”

14.  Uprimny, supra note 3.

15.  See Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 Yale L.J. 1011, 1043 (2003).

16.  See Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029, 1031 (2004).

17.  See Uprimny, supra note 3, at 47.

18.  See id. at 65 tbl.3.

19.  Article 241 states in part: “The safeguarding of the integrity and supremacy of the Constitution is entrusted to the Constitutional Court in the strict and precise terms of this Article.”

20.  The Court however held that a fourth factual finding in the declaration, that “Colombia has recorded the highest level of criminality on the planet,” had not been proven and thus held that it could not be used to uphold the decree.

21.  Article 2 also allowed arrests “of those persons about which there are indications regarding their participation or plans to participate in the commission of crimes.” The Court upheld this provision, but in the text of the decision read this article narrowly. It noted that arrests should not be carried out on the mere basis of plans to commit crimes unless this were supported by external facts showing at least the “initiation of the execution of the plan.” It also read “indications” as clearly requiring “evidence” or “facts,” rather than conjecture or suspicion. Finally, the Court noted the absence of any provisions governing the procedure once a person was captured, the duration of the detention, or the rules for bringing the person before a judge. At least in this absence, the Court held that the captured person should have the immediate rights to know why and by whom he was captured, to have the authorities communicate his detention to a person selected by the detainee, and to communicate with a lawyer of his choosing.

22.  Article 215 also contains a substantive limitation on government power: “The government may not infringe on the social rights of workers through the decrees mentioned in this article.”