Checking Institutions and the Institutional Control of Politics

—David Landau, Florida State University College of Law

This week, the Colombian National Procuraduria [a sort of National Attorney General or Inspector General] removed the leftist, democratically-elected mayor of Bogota, Gustavo Petro, from office and banned him from participation in politics for 15 years. The move is a fascinating look into the strength of Colombia’s judicial and non-judicial institutions and their mandate to control and cleanse popular politics. The Constitutional Court has been the subject of extensive scholarly commentary, but other institutions like the Procuraduria, Defensoria del Pueblo [National Ombudsman], and the Contraloria [Comptroller] are important institutions that have attracted much less attention.

Petro is not a minor official; the mayor of Bogota, Colombia’s largest city, is often classified as among the most powerful and high-profile elected posts in the country. And unlike his predecessor Samuel Moreno, he was removed not for proof of corruption or similar activity, but instead for violations of law and malfeasance connected with a seemingly mundane issue: a change in the system of garbage collection. The heart of the decision was based on a finding that Petro switched the garbage collection to public entities which he allegedly knew “had no experience, knowledge, or capacity” to carry out the job. The garbage incident has served as a sort of symbol in the popular mind for an administration that has been plagued by accusations of poor execution. Members of the press are wondering whether the Procurador, Alejandro Ordóñez, is now the most powerful person in Colombia.

The administration has questioned whether the Procuraduria should have the constitutional power to remove democratically-elected officials; the Minister of Justice suggested a constitutional reform to take away this power. The country’s chief prosecutor, another independent checking institution, criticized the constitutional design, noting that the Procurador aggregates within a single institution the power to investigate public officials (including elected ones), formulate charges, hold trials, determine sanctions by removing officials from office and/or taking away their political rights, and act as a second instance for appealing those decisions. The prosecutor also announced that he was opening an investigation into the process and evidence used by the Procurador. Petro meanwhile is preparing to file a constitutional complaint (tutela) and a complaint within the Inter-American system. The dispute has thus become legalized among a complex welter of different courts and non-judicial institutions.

The broad powers of the Procuraduria to remove public officials can be seen as part of a broader tableau of very aggressive legal control of political action. The Criminal Chamber of the Supreme Court’s investigations and criminal trials of congress members, often for links to paramilitary groups, is noteworthy in comparative terms: at one point during the 2006-2010 term, about one-third of all Senators were under investigation for links to paramilitary groups, and a significant percentage of those elected to that term ended up in jail.

Broadly speaking, this aggressive control of politics maps onto the institutional design of the Constitution of 1991. Meeting in the midst of political crisis and widespread violence, members of the Constituent Assembly sought both to rejuvenate elected political institutions like the Congress and to build a powerful set of checking institutions to control and improve political action. The Constitutional Court was close to the center of this effort but was far from the only such institution. The Congress and party system is generally held in very low esteem, which acts as a sort of ethos justifying aggressive activity by a range of institutions – the Constitutional Court itself, as well as the other checking institutions like the Defensoria, Procuraduria, Contraloria, etc. In other words, the thickness of the non-democratic institutional framework, and the boldness of those institutions, is closely related to continuing distrust of democratically-elected actors.

The proliferation of an array of institutions and actors other than courts and designed to temper or improve democracy may be one of the most important recent developments in constitutional design. The scholarly literature that exists on institutions like Defensorias within Latin America suggests that they have an extremely varied set of powers and political roles. Even within a single country, behavior often varies over time depending on who leads the institution and its shifting relationship with other bodies. Ordóñez, for example, has taken a particularly prominent role within the Procuraduria, using the institution and its substantial powers to challenge the Constitutional Court on its recognition of same-sex marriage and the administration in its push to complete a peace process with the FARC. The Procurador has emerged as a powerful political voice.

The Petro example shows how the line between law and politics is being renegotiated not only by courts, but also by a host of other constitutional institutions. These shifts are broader than the judicialization of politics, which is a phenomenon led by constitutional courts, but they stem from some of the same sources and carry some of the same risks.

Suggested citation: David Landau, Checking Institutions and the Institutional Control of Politics, Int’l J. Const. L. Blog, Dec. 13, 2013, available at: http://www.iconnectblog.com/2013/12/checking-institutions-and-the-institutional-control-of-politics