The decision to sack Viviane Morales is unconstitutional

Viviane Morales stepped down as Colombia’s Prosecutor General last week. Or rather, she was forced to resign after the Council of State, Colombia’s highest court on administrative law, determined that her election had been illegal. The Council’s decision was momentous not only because Morales was the head of the office charged with prosecuting all crimes across the nation, but also because the body that had elected her was no other than the Supreme Court.

In my last column I explained how Colombia’s three-headed judiciary is prone to clashes between the high courts, and one week later I could not have asked for a better example. To Americans the idea that one court is able to second-guess the US Supreme Court sounds preposterous, but for Colombians this is just a consequence of the division between public and private law they adopted from France.

Let me explain how Morales’ election and resignation came to happen. Alvaro Uribe was still president, and the time came to elect a new Prosecutor General. Following the constitutional mandate, Uribe nominated three candidates and sent their names to the Supreme Court. However, the Court refused to elect any of Uribe’s nominees for over a year (he even changed the candidate list twice), as many of the judges held grudges against the President. After Uribe’s term ended, The newly-inaugurated President Juan Manuel Santos sent a new list of nominees to the Supreme Court, which included Morales. She was elected by 14 of 18 votes.

And here lies the crux of the matter. At the time the Supreme Court had 18 judges and 5 vacant seats. While Uribe was President, the Court had established under its internal rulebook that the requisite number of votes to elect the Prosecutor General was 16, equivalent to two thirds of the Court’s 23 seats. Since none of Uribe’s nominees obtained more than 14 votes, all of them were unsuccessful. However, when the time came to consider Santos’s candidates, the Court changed its interpretation of the internal rulebook to decide that 14 votes would suffice. Thus, Morales became Prosecutor General.

On these facts, the Council determined that Morales’s election was invalid. There was no justification for the Court to have changed its internal rulebook, the Council held. Days later, before the Council’s opinion was out, Morales resigned. I understand that the Council’s decision came after a Colombian law student filed suit against Morales’s election. Also a law student, I want to take the chance to explain why his conclusions, as well as the Council’s, are manifestly wrong.

The Council’s decision is unconstitutional. Article 249 of the Constitution reads that “the Prosecutor General shall be elected for a four year term by the Supreme Court” from a list of three candidates chosen by the President. To me, this means that discretion to choose and to reject any of the nominees lies with the Court –not Congress, not the President, and certainly not the Council. Period. Perhaps I am old-fashioned, but I like to think that words should mean what they say, especially when they are written in a Constitution. Moreover, article 235 also grants the Supreme Court discretion to decide its internal rules, and thus it is odd that the Council can claim the power to revise those rules, and the Court’s interpretation of them. Finally, the Act of Congress that regulates the Prosecutor’s office adds no other requirements about elections, so statutory law gives no support to the Council’s position.

A Colombian lawyer would probably counter that under the Constitution the Council of State is the maximum tribunal on administrative law, which the relevant code defines as the “controversies and litigation that originate from the activity of public entities.” The Supreme Court is a public entity, and there was a dispute about the legality of its vote for Morales, and voila! the Council has jurisdiction. This untenable position would put any of the Court’s so-called administrative decisions under the Council’s surveillance. Any time the Court would choose any of its own magistrates (art. 231), or if it were to swear the President into office (art. 192) the Council’s eye could invalidate any of those actions. The same would be true for actions by other branches of government, for instance, Congress’ election of the Comptroller General or the Inspector General. What if the President drafted a whitepaper that determined how to choose ministers of his cabinet, and then he were to make an exception to name someone who did not satisfy the requirements? Under the precedent the Council has established, I do not see anything that would prevent it from invalidating such a decision by the President.

The correct answer to all these scenarios, including Morales’s election, is that by definition there can be no real  “controversy or litigation” where the Constitution already clearly establishes what the rule is, as well as who can make those administrative decisions. To put it simply, there is nothing for the Council to decide where the law is already settled.

The Council’s decision, thus, was a naked power grab. The Supreme Court now responds to the Council on matters that, it seemed before, the Constitution gave it full authority to decide. God knows what obscure and unwritten requirement the Council will craft next time, so that slowly the locus of the decision might shift away the Court. The door has been opened. A door that supplants the Council’s opinion for the text of the Constitution in matters of the utmost importance. What a terrible precedent. Worse still, the Prosecutor General’s independence has been compromised forever, as any holder of the position will now be mindful of not upsetting the Council’s members or their political patrons for fear of being overthrown. Any “administrative error” will suffice. Perhaps it is time for the Constitutional Court to step in and set things right.

Of course, Morales’ resignation was an act of both legal and political significance. She had become an uncomfortable character for Alvaro Uribe, as she had prosecuted many of his closest allies, leading some of them to leave the country to avoid trial. Morales’s husband, Carlos Antonio Lucio, has alleged ties to paramilitary groups, and voices from some quarters claimed that his influence over her dictated who was prosecuted in some cases. Regardless of the characteristics of Morales’ tenure, my opinion on the Council’s decision goes unchanged. I write this column without regard to who the Prosecutor General is, and only with the constitutional balance in mind.

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