Game of Thrones

By bogotapost June 25, 2015

Reforma de Equilibrio de Poderes, constitutional reformAs Colombia passes a major constitutional reform bill, Mike Mackenna analyses who won and who lost in this epic clash between the three branches of the Colombian government

The Reforma de Equilibrio de Poderes (Colombian constitutional reform) has been a legislative battle worthy of Game of Thrones, involving virtually every major player in national politics in a nearly year- long struggle to decide who gets to keep or increase their privileges; and who loses them.

The Balance of Power Reform isn’t just about establishing a sensible balance of power among the three branches of the Colombian government. It is also a power grab bloodier than the greatest battles in Westeros.

When the dust settles, the most important question is how the Colombian people fared in the reforms. As the tables below show, sadly, the only definite wins they got were the elimination of re-election and the broadening of la silla vacía.

They have good reason to be cautiously pessimistic about all the other promising reforms, which could easily turn out to be disappointments. Maybe, as Semana’s Antonio Caballero suggested, the solution is not to change the constitution, but rather to take the “radical” step of forcing public servants to honour the constitution they currently have.

Talking points:

Main players:

Key features of the bill

Elimination of Presidential re-election

The bill states that ‘no citizen who has already served as president can be elected’. It also prohibits anyone from running for president who held the office of vice president, minister, judge, attorney general, ombudsman, general comptroller, army commander, governor or mayor, less than a year before the election.

Creation of Tribunal de Aforados

This replaces the ineffective Accusations Commission, which was supposed to prosecute high-court judges, the attorney-general, and the president; but has only managed to convict one person in its 60 years of existence.

La silla vacía

The decision to vacate the seat (la silla vacía) of any congressional representative who is convicted of a crime associated with abuse of public trust is important because it penalises political parties who put corrupt politicians on their ballots. Previously, la silla vacía was only used against politicians convicted of association with illegal groups like the paramilitaries.

Creation of Judicial Government Council

The Superior Judiciary Counsel, which was in charge of administering judicial resources, will be replaced by the new Judicial Government Council, with the intention of limiting corruption in the judicial branch.

constitutional reform

Juan Manuel Santos with his right hand man, Juan Fernando Cristo.

President Juan Manuel Santos
and Minister of the Interior Juan Fernando Cristo
Wins They have guided the reform towards completion with their main goals mostly intact:

  • Re-election of presidents and other high-level public officials has been eliminated.
  • They have limited the courts’ corrupt practice of “I elect you, you elect me”, through which judges supported each other for high-level judicial appointments.
  • They have established a Tribunal de Aforados (a court for those with immunity), designed for judges like Jorge Pretelt, the current President of the Constitutional Court, who refused to bow to pressure to resign despite facing serious bribery charges.
Losses The devil is very much in the details of this reform:

  • The practice of “I elect you, you elect me” has been limited, but not eliminated. Judges will still be able to move from the judicial branch to other governmental branches, they just have to wait a year.
  • The Tribunal de Aforados will only have the power to investigate and accuse, but not to judge, which may make it as ineffective as the previous Accusations Commission.
  • Congress will choose the members of the Tribunal, instead of the president, as originally proposed.
  • The new Judicial Government Council, set up to administer judicial resources, will not include non-judicial officials, which led to corruption scandals like the pension carousel in its predecessor, the Superior Judiciary Counsel. In the pension carousel, judges at the end of their career were suddenly promoted, raising their salaries, in order to retire with a more generous pension.
  • Their proposal for mandatory voting was also defeated – they had wanted to use it to increase voter turnout for a referendum on an eventual peace deal with the FARC
  • They also failed to push through their proposal to extend presidential terms to five or six years.
Verdict Time will tell if this was a modest victory or a crushing defeat. They achieved most of their main goals, but much was watered down.

  • The elimination of re-election could actually do a great deal to restore some balance of power, depriving incumbents of the enormous power their position allows them. It’s not only the president who cannot be re-elected, but also the Procurador, a spot currently held by the notoriously powerful Alejandro Ordoñez; and the Attorney General, a spot currently held by the attention-craving Eduardo Montealegre; as well as many other high-ranking officials, including high-court judges.
  • The Tribunal might turn out to be a paper tiger, and we still might be subject to judges brazenly trading favours to reach higher posts in other branches of government, or hopping on the judicial pension carousel for a ride.

constitutional reform

El Congreso de la República and its members

The Unidad Nacional Coalition
(Partido de la U, Partido Liberal, Cambio Radical, Partido Verde and the Partido Conservador Colombiano)
  • The Unidad Nacional’s biggest win is their control over the Tribunal de Aforados (see key features of the bill). As political website La Silla Vacía explained, this gives them power over those who have power over their bosses.
  • Congress will be able to choose the people who sit on the Tribunal – and it is they who will sit in judgement if the Tribunal pursues political corruption cases. This may make the high court judges reluctant to fulfil their duty to investigate possible corruption in congress.
  • The coalition also maintained their power to choose the other person who can investigate them: the Procurador.
Losses The coalition lost some significant legislative struggles during the debates:

  • They failed to take investigative powers away from the trigger-happy procurador and they couldn’t cripple Vice President German Vargas’s widely-anticipated 2018 presidential bid.
  • They were unable to make closed-list elections mandatory. Unidad Nacional favoured closed lists because they felt it would be a boost to party discipline, as open-list ballots tend to encourage candidates to campaign for their own platform rather than the party’s.
  • Almost all the parties in the Unidad Nacional could suffer from the decision to vacate the seat (la silla vacía) of any congressional representative who is convicted of a crime associated with abuse of public trust. Previously, parties were allowed to replace members convicted of corruption. However, it’s hard to call this a meaningful loss, since it also enhances congressional credibility without much risk of anyone actually being penalised.
Verdict A definitive victory, since they maintain significant control over who investigates them, which turns la silla vacía, high-court investigations, and even the procurador’s impeachment power, into mostly empty threats.

The most formidable check against their power is Procurador Ordoñez, but he has used his power sparingly against Congress, only impeaching 22 of its members in his first four years.
The High Courts
and Attorney General Eduardo Montealegre
Wins Even though much of the reform was driven by the aforementioned corruption allegations against Jorge Pretelt, and various other judicial scandals, the courts didn’t come out as badly as you might expect.

  • The teeth of the new Tribunal de Aforados are not as sharp as originally intended.
  • Despite the fact that one of the stated goals of the reform was to take away the courts’ role in the election of high-level officials, they did hang on to two very important nominating powers: the ability to nominate the candidates for the Procurador and Attorney General.
  • Another important victory for the courts was the removal of non-judicial officials from the new Judicial Government Council. This caused scandals like the pension carousel in its predecessor.
  • Attorney General Montealegre did manage to defeat a proposal to make him ineligible to litigate for five years after leaving the Attorney General’s office.
Losses The losses of the courts have also been well-documented above:

  • They lost their power to nominate each other for judicial posts and to nominate the contralor.
  • They will now be subject to investigation and accusation by the Tribunal.

There have also been a number of embarrassing, tone-deaf public relations blunders and clumsy power plays.

  • Montealegre did the Colombian judicial equivalent of comparing someone to Hitler: he likened the reform to the terrorist group M-19’s deadly takeover of the Justice Palace in 1985, which left 100 dead, among them 11 judges, and 11 disappeared.
  • Montealegre defeated the proposal to prevent him litigating for five years after leaving office, but it came at considerable cost to his credibility. Senators complained that his assistant was present and actively lobbying desk to desk on his behalf, even though this was disallowed.
  • Supreme Court President Leonidas Bustos sent a letter, signed by the presidents of the other High Courts and by the Attorney General, requesting a Constitutional Convention to decide on the proposed reforms. The proposal – which essentially sought to halt the reforms from moving forward – had been sent without consulting other high-court judges. It was eventually put to a vote among the State Council and Supreme Court, who resoundingly rejected it by a vote of 17-1.
  • Semana’s Daniel Coronell revealed that Bustos met with Minister of the Presidency Nelson Humberto Martínez while Congress was debating the reform, allegedly to try to convince him to stop congress from dismantling the Superior Judicial Council. In return, Bustos supposedly promised to support Martínez in his bid to become Attorney General.
  • After the meeting, Congress was treated to the farcical spectacle of Minister Martínez arriving to announce that they were no longer authorised to dismantle the Superior Judicial Council.
  • The debate was abruptly stopped. Ministers met and agreed that the Superior Judicial Council would indeed be dismantled and replaced by the Judicial Government Council.
Verdict A moderate defeat which could, and probably should, have been worse.Hopefully, they will be held more accountable by the Tribunal, though its weaknesses make that far from certain.

They lost some important nominating powers, but the Bustos-Martínez travesty showed they still know how to maximize the leverage of the nominating power they have left. Their uncontested power over judicial resources virtually guarantees them a chance to continue to exploit the judicial budget for their own benefit. That power will have to be wielded very delicately though, since their credibility is already at an all-time low.

In context: Latin America’s Constitutional Conundrum

After 200 years of independence, the continent still can’t decide whether re-electing presidents is a good idea. Mat Youkee investigates…

In Carlos Fuentes’ political novel, The Eagle’s Throne, a young pretender to the Mexican presidency travels to Veracruz to visit an ancient former president. “We have two golden rules in Mexican politics,” the old man tells him. “One is benign: no re-election. The other is more unforgiving: exile. The reason, however, is the same: all delinquents are recidivists, my young friend.”

Set in 2020, the novel revolves around a political cast vying to replace the incumbent as he enters the final year of his rule. Amongst them is another ex-president, hoping that a favourable interpretation of the constitution might permit his own return to power.

Fuentes’ book echoes Colombia’s recent “balance of power” reforms and the struggle between Juan Manuel Santos and his predecessor-cum-nemesis, Álvaro Uribe. Colombia’s June 1 decision to end presidential re-election overturned a 2004 constitutional change overseen by Uribe that permitted his own re-election in 2006.

The inclusion of a line stating that “no citizen who has already served as president can be elected” puts an end any lingering possibility of a third term for either Santos or Uribe. Tellingly it was senators from Uribe’s Centro Democrático Party that registered the strongest opposition to the changes.

Simón Bolívar admirers on both sides of the argument can reach back for handy quotes from the Liberator. In 1819, he said, “Nothing is more perilous than to permit one citizen to retain power for an extended period”. Seven years later, presenting the constitution of Bolivia, he said that “a fixed point is needed about which leaders and citizens, men and affairs can revolve…For Bolivia, this point is the lifetime presidency.”

Single-term presidencies used to be the norm in Latin America. In Mexico the idea of ¡No reelecionismo! has been sacrosanct since Francisco Madero’s 1910 campaign that ended the 34-year rule of Porfirio Diaz. As countries returned to democracy in the 1970s and 1980s following years of military dictatorship, strict limits on terms were seen as the best way to prevent the concentration of power in one man. The caudillos of the past were seen as the biggest challenge to democratic politics.

However, starting with Peru’s Alberto Fujimori in 1993, the majority of South American nations rewrote their constitutions to permit consecutive re-election. Argentina, Brazil, Ecuador, Venezuela and Bolivia followed suit, with Uribe’s 2004 reforms making Colombia a relative late-comer.

Firstly, re-election makes the president more accountable to the electorate and rewards good performance. Secondly, it enforces a greater level of party discipline during the first term by removing the motivation for ministers to align themselves with the presumed successor. Thirdly, and most fundamentally, the restriction on term limits can also be seen to impede the democratic choice of the electorate who should, it could be argued, be free to vote for whoever they chose.

According to John Carey, Professor of Government at Dartmouth College, the latter argument was used in the 1990s by then Brazilian president Fernando Henrique Cardoso in order to change the constitution. “The argument at the time was: democracy is strong here, we can afford to allow re-election,” says Carey. Cardoso justified running for a second term by saying it was necessary to oversee the continuation of economic reforms. Again there are parallels with Santos, who early on in his mandate claimed to be a one-term president, only to backtrack on this promise due to the necessity that he, personally, oversee the peace process.

By another trick of timing, a week prior to the Colombian reforms, the Brazilian Chamber of Deputies overwhelmingly passed a bill to ban the re-election of presidents, mayors and governors. The Brazilian bill will need to be approved by a second vote and then passed by congress before it can enter into law. Two major South American nations are re-introducing term limits: Is this a sign of a shifting tide in the Latin American re-election debate? In short, no. In April, Honduran courts paved the way for continuous presidential election and in June legislators in the Dominican Republic – a country previously dead-set against continuismo following the excesses of the Balaguer dictatorship – voted to allow re-election. Even Mexico has moved to allow mayors and governors to serve two terms.

“There’s really no clear pattern to the re-election debate in Latin America, it’s always been pretty random,” says Carey. “To some degree or another, constitutional changes are always linked to the incumbent president or one who has been recently deposed.”

In the case of Brazil, President Dilma Rousseff’s popularity plummeted in the wake of a capsizing economy and a sprawling corruption scandal and yet she still has three and half years left to run. The move to ban re-election is the result of a personal feud between Rousseff and Eduardo Cunha, the chairman of the lower house according to Alejandro Chacoff, a Brazilian political risk analyst. “Cunha has tried to shame the Rouseff administration publicly on several occasions,” says Chacoff.  “In this case he surreptitiously passed a major reform in the house that mocks the government’s ongoing discussion of political reform.”

Constitutional changes are always accompanied by lofty rhetoric. “This is meant to prevent creating all-powerful men in Colombia,” Interior Minister Juan Fernando Cristo told local radio after the Colombia vote. Tatiana Cabello, spokeswoman for the Centro Democrático Party said, “We have always defended presidential re-election, because it rewards good rulers and punishes the bad ones.” But historical precedent suggests that Realpolitik, not principle, lies behind constitutional change.