The International Bar Association’s Human Rights Institute (IBAHRI) monitors a pattern of recent incidents that appear to undermine the independence of the judiciary in Colombia, and therefore threaten the separation of powers, a cornerstone of democracy. These incidents include: continued derogatory comments made by President Gustavo Petro against the judicial branch and individual judges, which might have influenced the siege of the Supreme Court of Justice by demonstrators in February 2024; allegations of state intelligence surveillance of the judiciary through interception of communications; and President Gustavo Petro’s proposed reform to the Colombian Constitution.

Derogatory statements against the judicial branch and individual judges

The IBAHRI notes with concern President Petro’s continuous disparaging comments against the judiciary. Petro claimed in many instances having been victim of an institutional coup orchestrated by the Attorney General to oust him from power, or the target of a lawfare by the judiciary against his government. The President’s verbal attacks against the judicial branch are usually issued in the context of rejecting decisions impacting his proposed reforms or presidential mandate. It is to be noted, however, that none of the relevant decisions by the High Courts of Colombia have been reported as in contrast with the country’s constitutional order.

Among the incidents deserving specific attention:

• On 16 November 2023, the Constitutional Court issued a decision striking down part of a legislation promoted by Petro as part of his tax reform, with the aim of increasing the government’s revenues. The Court declared the provision that prohibited extractive companies from deducting royalties paid to the government from their taxable income to be unenforceable. Reacting strongly on his X account to the Court’s decision, President Petro warned that because of this ruling, the Minister of Finance might consider cutting the budget of the three branches of the public power.

• On 8 February 2024, the Supreme Court of Justice met for a second time to deliberate on the election of a new Attorney General but was unable to reach a qualified majority on one of the three candidates presented by President Petro. In response, Petro called on supporters to take the streets and protest the delays in the appointment of the new Attorney General. As a result, a demonstration took place, which culminated in the Court being subjected to a siege by demonstrators who forcibly blocked the entrance and exit of the Colombian Palace of Justice, as a pressure mechanism against the Supreme Court to compel it to appoint the new Attorney General.

  In the aftermath of the event, the government denied having had any role in the encouragement of the siege and claimed to have sought the protection of the magistrates by removing the human barricades at the Palace of Justice. On 11 February 2024, President Petro further commented the episode on his X account by condemning the Supreme Court for not being able to reach a decision on the new Attorney General and he reinforced the right for ‘citizen mobilization without violence’.

  Whether or not the executive bears responsibility for the blocking of the Palace of Justice, similar incidents not only affect the freedom of movement of judges and put their physical integrity at risk, but they also represent an undue interference with judicial duties which are to be carried out without pressure, harassment or threats.

• On 8 May 2024, the National Electoral Council published a report announcing the opening of an investigation against President Petro, his campaign manager, and the auditors, for alleged irregularities in the financing of his presidential campaign. As a response, the President made a call on X to his supporters to take the streets in protest and ‘peacefully surround the centres of power in Colombia until constitutional power is restored in this country’ [translation from Spanish]. Similar appeals raise particular concerns given the precedent of the siege of the Supreme Court just a few months earlier.
• On 10 May 2024, President Petro lashed out against the Council of State after it declared the nullity of a presidential decree through which Petro intended to assume functions of regulating public utilities. Petro personally attacked the magistrate responsible for the decision and portrayed the decision as a move to ‘legally confine’ his government.

All the abovementioned episodes, and the general incendiary rhetoric adopted by President Petro, are of concern given the far-reaching nature of the claims. Similar derogatory statements not only have the potential to intimidate judges, interfering with their ability to carry out their duties without fear of repercussions, but they also impact the public’s perception of the independence and impartiality of the judiciary, thus eroding citizens’ confidence in institutions with a detrimental effect for the rule of law in the country.

Allegations of state intelligence surveillance of the judiciary through interception of communications

On 21 June 2024, the Vice-President of the Constitutional Court, Judge Jorge Enrique Ibáñez Najar, raised concerns about potential illegal interceptions of his communications, as well as the communications of his spouse and of some of the auxiliary magistrates working with him. On 24 June 2024, a complaint for alleged state intelligence surveillance of the conversations and actions of Judge Najar and his wife was filed by the President of the Constitutional Court with the Attorney General. The surveillance activities include telephone wiretaps, follow-ups, profiling and permanent monitoring. Investigations into these surveillance claims were launched soon thereafter. On 25 July, the Special Jurisdiction for Peace also filed a request with the Attorney General’s Office to investigate alleged illegal interceptions carried out against some of its magistrates.

President Petro denied these claims and stated that he always made sure that state intelligence is not used against the opposition, the press or the courts, but is instead dedicated to the prosecution of grave crimes.

Although the merits of these allegations have yet to be properly investigated, careful monitoring is needed given the seriousness of the claims and the country’s own experience of intelligence services carrying out illegal surveillance over journalists, politicians and judges under previous administrations.

Proposed reform to the Colombian Constitution

In March 2024, President Petro started discussing a proposal to change the Constitution after the opposition-controlled Congress failed to approve elements of his reform agenda. Since then, Petro suggested in different contexts to convene a National Constituent Assembly to overcome the stalemate on his package of reforms. He further circulated a document highlighting the key points of his constitutional reform plans.

Constitutional reforms do not pose by themselves a threat to the rule of law. They might be welcomed and desirable at times, especially when they are aimed at strengthening the protection and fulfilment of human rights in a country. However, they are always to be weighted with extreme caution given fundamental nature of the rights that might be impacted, and the sensitivity of the mechanism of checks and balances that might be altered by such reforms.

The current Colombian Political Constitution was drafted in 1991 as a result of a broad and participatory process of popular initiative. The document is an example of democracy and the result of Colombia’s significant social and political transformations. It decentralised power and it created independent institutions that are key to ensuring that the executive does not act outside of its constitutional bound.

In a scenario of high polarisation and tensions with the judiciary, any attempt to reform the Constitution creates an institutional alert and deserves the strictest scrutiny in terms of appropriateness and conformance with constitutional procedures. The reform proposed by President Petro doesn’t seem to pass muster. On a substantive level, given the principle of supremacy of the Constitution, amendments to it must in no way be instrumentalised as a means of overcoming the lack of votes for socio-economic reforms in the ordinary legislative process. On a procedural level, President Petro suggested to call Colombian citizens to ‘Open Town Halls’ for a participatory mechanism to the reform. Should the intention be to use this participation mechanism as an alternative route to the amendment procedure set forth in Article 378 of the Colombian Constitution, which requires, among other checks, the approval of the Congress, the proposal would be wholly illegal. The one provided for by Article 378 is the only legitimate pathway to a constitutional reform.

Conclusion

The abovementioned developments represent a clear alert on threats to judicial independence, the separation of powers and rule of law in Colombia. President Petro’s continuous derogatory comments against the judiciary erode public trust in that fundamental branch of the state and impinge on judges’ ability to carry out their work without any pressure or interference. The allegations of state intelligence agencies intercepting judges’ conversations add an additional layer of concern. If proven true, such actions would constitute a grave and blatant violation of judicial independence, the separation of powers and the right to privacy. The proposal to reform the Constitution, as presented so far, appears prima facie illegal, as it doesn’t fit the necessary requirements from both a substantive and procedural standpoint.

The IBAHRI recalls Article 10 of the Universal Declaration of Human Rights, which enshrines the independence and impartiality of courts as a fundamental aspect of the right to a fair trial, and Article 14 of the International Covenant on Civil and Political Rights, which further guarantees the exercise of such right in a specular way to Article 8 of the Inter-American Convention on Human Rights. Additionally, Principle 1 of the United Nations Basic Principles on the Independence of the Judiciary clearly sets out ‘the duty of all governmental and other institutions to respect and observe the independence of the judiciary’ in order for it to carry out its function ‘without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason’. In the same vein, Article 3 of the Inter-American Democratic Charter lists the separation of powers and independence of the branches of the governments as one of the essential elements of representative democracy.

In light of the above, the IBAHRI calls on:

• President Petro to reflect on his duty to protect the independence of the judiciary and refrain from disparaging judges for carrying out their duties. The legitimacy of his presidential mandate is only strengthened by a functioning separation of powers and strong institutional independence.
• President Petro to abandon the proposed constitutional reform plan.
• All public powers in Colombia to respect judicial decisions, use the appropriate legal channels to challenge them, and guarantee independence and security of the judiciary.
• The Attorney General of Colombia to conduct serious and prompt investigations into the alleged intelligence surveillance of the judiciary.
• The international community to monitor the situation in Colombia and offer support for the preservation of judicial independence.

IBAHRI Co-Chair and Immediate Past Secretary General of the Swedish Bar Association, Anne Ramberg Dr Jur hc

IBAHRI Co-Chair Mark Stephens CBE

ENDS

Contact: IBAHRI@int-bar.org

Notes to the Editor 

1. The International Bar Association’s Human Rights Institute (IBAHRI), established in 1995 under Founding Honorary President Nelson Mandela, is an autonomous and financially independent entity, working to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.

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3. The International Bar Association (IBA), the global voice of the legal profession, is the foremost organisation for international legal practitioners, bar associations and law societies. Established in 1947, shortly after the creation of the United Nations, it was born out of the conviction that an organisation made up of the world's bar associations could contribute to global stability and peace through the administration of justice.

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Website page link for this news release:

Short link: www.tinyurl.com/574ypsxa
Full link: www.ibanet.org/Colombia-IBAHRI-monitors-potential-threats-to-the-independence-of-the-judiciary