COHA Report. Colombia. The President and the Courts: Uribe’s Attacks on Colombia’s Highest Judicial Institutions

* The President and the Courts: Uribe’s Attacks on Colombia’s Highest Judicial Institutions
* In a far-fetched move, Uribe accuses a Supreme Court Justice of bribing a paramilitary leader to implicate the President in a murder scandal
* This is the latest incident in the tumultuous "parapolitics" scandal surrounding Uribe's antagonistic relationship with the courts

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

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

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

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

The "Parapolitics" Scandal

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

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

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

Past Controversy

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

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

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

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

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

Conclusion

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

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

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

This analysis was prepared by COHA Research Associate Brent Buxton