*The election of the new prosecutor
*Supreme Court is not a stone guest
There is no small amount of debate that has taken place in Colombia whenever it comes to electing the Attorney General of the Nation. In large part because it entails a complex legal act in which the highest levels of the State participate, namely, the President of the Republic and the Supreme Court of Justice. Therefore, in addition to the suitability required for the position, other fundamental aspects also come into play.
It is precisely there where, in principle, the crucial considerations surrounding criminal policy and the elements that compose it should be taken into account. Because, at the end of the day, the fact does not consist only in the appointment of an official, but in analyzing the scope of that policy that, only after being detailed and refined, does the elected person commit to complying. Or at least it should be that way. And not the other way around.
In that sense, the constitutional norms indicate that the special functions of the Attorney General of the Nation are “to participate in the design of the State’s policy on criminal matters.” And it is also not possible that the Supreme Court can appoint someone who has not thoroughly explained its concepts and even verify whether they are completely consistent with those of the highest court. Because it would be more necessary to appoint a person contrary to the integral thinking of the magistrates as defenders of the criminal legal order.
In the case of this State policy, it is known that in Colombia the law is extremely mobile, subject to an infinite number of interpretations, so it is not enough to say, on this occasion by the three candidates for the Prosecutor’s Office, that it In fact, only an elementary notion will be strictly adhered to. Furthermore, it is already known that on countless occasions the norms depend more on these interpretations than on the legal texts themselves, an unhealthy peculiarity of the legal trajectory in our country. In particular, of course, in the face of the thick problem of crime that has been a predominant factor in the national future, also marked by high doses of impunity and constant regulatory changes to confront chronic violence, either as a political justification or as a routine mechanism to resolve citizen disputes.
In our legislation, the Prosecutor’s Office was assigned since the 1991 Constituent Assembly to the Judicial branch, when it was created at the request of Álvaro Gómez Hurtado, after the abrupt fall of the 1979 reform due to alleged defects in form and which then left its groundless. idea of incorporating the adversarial system into the country. This means that, unlike other places where the appointment is made directly by the president, the intervention of the Supreme Court is a requirement. sine qua non in the appointment of the Attorney General of the Nation. Thus, the election falls on the corporation from a shortlist sent by the first president, which indicates the importance and preponderance of the powers conferred on the jurisdictional head by the Constitution. Hence, certainly, the selected official is not subordinate to the president and on the contrary is institutionally assigned to the Judicial branch, with absolute independence from the Executive. Of course, this is responsible for ensuring public order, but it is the Prosecutor’s Office, as an investigative and prosecuting body in the criminal jurisdiction, which acts for the sake of the administration of justice. It is worth saying this, since the mistake made when making a comparison with the United States is common.
In recent times, Colombian criminal policy has been mediated by all types of initiatives around the generic concept of peace. The idea has even taken off that ordinary justice could be replaced by transitional justice, expanding its scope of action. That is, avoid penalties and resort to other types of sanctions of much lesser magnitude, including maximum crimes. This is what is basically known not only as “total peace”, but it can also be confirmed in certain initiatives of the Ministry of Justice. Of course, all of this is a reason for current jurisdictional control and the opinions of the competent authorities are still awaited. And there we will know what is or is not law.
Meanwhile, the importance of the country having a coherent criminal policy is becoming more pressing every day. It is nothing more and nothing less that concerns the Supreme Court in the coming months with an election for the head of the Prosecutor’s Office that knows how to interpret it and does the same in strengthening the Judicial branch. Not at all, of course, being the high court, as some think, a mere stone guest.