July 10, 2008

The Colombia FTAs: Bargaining with the Thief

Written by Augusto Bohorquez, the Canada-Colombia Project, July 10 2008
Translated by La Chiva

While briefly sidelined in the media by the celebrated release of 15 hostages held by the Revolutionary Armed Forces of Colombia (FARC) on July 2, the Colombian president, Álvaro Uribe Vélez, remains in a deep legitimacy crisis because of two recent legal cases in the country. The first, and perhaps the most widely acknowledged, is that of the paramilitary politician scandal, often referred to as ‘para-política’, in which more than thirty Colombian congress members have found themselves behind bars for direct links to right-wing paramilitary death squads. The second is the July 26 Supreme Court Justice’s sentence that imprisoned former house representative Yidis Medina for committing a crime: namely, for accepting a bribe. That bribe led to the re-election of the president, a scandal if ever there was one.

After the release of the court’s verdict on the evening of June 26th, President Uribe appeared on national television calling for the dismantlement of democracy in Colombia, effectively declaring the latest Latin American dictatorship. As the house was crumbling, the thief was exposed and called for those he stole from to legitimize the theft: Uribe called for a replay of the 2006 election through a national referendum. It is not surprising that this dictatorship, as in the last era of dictatorships in the region, has found refuge and legitimacy through the foreign policies of countries like Canada, the United States, and the European states, who continue to protect and act in the interests of transnational capital, most notably through the pursuit of Free Trade Agreements that now must be seen as illegitimate as Uribe’s current presidency.

Uribe’s televised address came hours after the Colombian Supreme Court’s verdict on the case of Yidis Medina, who was found guilty of accepting bribes from Uribe’s government. The court found that Medina and other congress members had accepted political favors in exchange for their votes in the approval of a legislative act that would modify the Colombian Constitution to allow the re-election of Álvaro Uribe. Articles 405 and 407 of the Colombian Penal Code identify the acts of bribery as criminal.

In concordance with the rule of law, the Colombian Supreme Court of Justice’s verdict affirmed “the fight of the State against impunity has constitutional importance that cannot be reduced to simple rhetoric … a situation that would be incompatible with the philosophy of democracy and the rule of law.”

“An illegal act of criminal connotations,” the verdict demands, “cannot possess any validity.”

Now, the question is what happens to votes obtained through a crime?

Should illegal votes be counted or annulled? Sadly for those hoping for a quick answer, Colombia is a country of laws, and there exists no legal norm defining what happens to illegal votes. Recognizing this legal void, the Medina verdict concludes, “The crime cannot generate any type of constitutional nor legal recognition.”

Because Colombia’s constitutional code is based on norms (the civil code tradition), there must be prior sanction of the law, written and promulgated, for a norm to be deemed valid. In other words, there is no established norm describing whether or not to annul votes obtained through a crime.

Therefore, Colombia’s most serious institutional crisis in recent memory is not a question of illegality but illegitimacy. Although the Colombian executive is portrayed by the uncritical mass media as enjoying over 80 per cent popularity, it has no legitimacy. It is important to note that governments with dismal popular support, such as that of the United States, are often held up as the most legitimate. Therefore, the legitimacy of a democratic government means much more than a popularity contest.

The call for a referendum, however, is a populist solution to this institutional crisis, the desperate reaction of a thief caught in the act: to attempt to make the crime legitimate. The executive’s solution to override the constitutional division of powers is thus the imposition of a dictatorship.

No matter what happens, the decision of the Supreme Court of Justice says makes one point loud and clear: Uribe’s re-election was illegitimate!

In the crime of bribery, there must be a beneficiary (Medina) and a benefactor (Uribe). Medina’s guilt of a criminal act, proven in the court of law, thus implies the illegitimacy of Uribe’s re-election, which means that he is not the constitutional president of Colombia; he has no mandate to govern, much less override the constitutional division of powers and unilaterally call for a national referendum.

Faced with an illegitimate government in Colombia, social and popular sectors have called for the defense of national sovereignty and against the dictatorial illegitimacy of Uribe. Former presidential candidate and professor of constitutional law, Carlos Gaviria, called for unity in a recent statement: “Now is the time for all democratic sectors (social and political) in the country to come to the defense of what little of our democracy we have left. We must rally behind our courts and scream with all the force of our voice that Uribe must not continue to govern the country to preserve his impunity and impose a populist dictatorship."

Given the reality of an illegitimate government in Colombia, the Free Trade Agreements negotiated with that government are also illegitimate. Moreover, governments involved in such negotiations are justifying such anti-democratic behavior. Condemned in his own country for benefiting from a crime that led to his re-election, the only legitimacy possible for him is to have governments in Canada, the United States and Europe patting him on the back and declaring him an ally.

Canada, which has recently concluded negotiations with the Colombian government for an FTA, must indefinitely stop the process towards ratification. If it does not, it will be painfully clear that Canada does not stand for democracies held up by constitutions and the rule of law but illegitimate regimes made more palatable as long as the profits and interests of transnationals – especially in the extractive, telecommunications and financial sectors – are protected and upheld. Moreover, it would reveal more accurately the Canadian vision of ‘development’.

There is a need in Canada for informed public debate on the FTA with Colombia precisely because the ratification of such an agreement, while turning a blind eye to the nature of the bargaining partner, means nothing more than defending the thief in the hopes that one will benefit from the spoils of the crime.

This is an ethical question for Canadians and their government, the answer of which will resonate in Colombia and the world as what Canada really stands for. At the very least, Canadians should have a say in that.

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