Regarding the controversy yesterday between President Gustavo Petro and Attorney General Francisco Barbosa, due to the fact that the president, in the midst of the clash due to differences of opinion that they have been holding for months, told him that he is his boss, EL NUEVO SIGLO spoke with the constitutionalist José Gregorio Hernández, former magistrate of the Constitutional Court.
Faced with what was stated by the President of the Republic, the Attorney General stated that it is “a very serious demonstration against judicial independence in Colombia and the division of powers.”
On this matter, former magistrate José Gregorio Hernández Galindo emphasizes that the constitutional scaffolding establishes the separation of powers, so the Head of State is not authorized to intervene in Congress or in the judicial branch, which includes its members. .
On the other hand, Hernández is in favor, in order to guarantee independence, that the system of election of the Attorney General be reviewed, since the Supreme Court chooses him from a short list presented by the President of the Republic.
THE NEW CENTURY: What is the institutional hierarchy established by the Constitution in terms of the President of the Republic and the Attorney General?
JOSE GREGORIO HERNANDEZ GALINDO: Regarding these last statements that the President of the Republic and the Prosecutor have exchanged, it is necessary to say that both, from the constitutional point of view, are wrong.
The President of the Republic is wrong when saying that the Prosecutor is his subordinate or that he is the head of the Prosecutor because the President is the Head of State.
The head of State does not imply a break in the balance and the separation of functions and powers that the Constitution has indicated. The President is head of State, and in that capacity he represents, for example, Colombia at the international level, he directs international relations, he is the head of the Public Force, in short. But the President is not superior to the members of the other branches of public power.
For example, he is not the head of Congress, he is not the head of the Constitutional Court or the Supreme Court of Justice, the Council of State or the Attorney General of the Nation, because these are independent bodies that belong to another branch of the public Power.
Thus, the fact of being the President and Head of State does not make him the head of the other branches of public power.
However, the Prosecutor is also wrong because from the constitutional point of view, the Prosecutor is not responsible for exercising any function of political control or legal control over the President of the Republic. He does not have to be questioning from a political perspective each and every one of the acts of the President of the Republic nor can he become a member of the political opposition, because he is a public servant and has to limit himself to carrying out his functions, the that correspond to him as Attorney General of the Nation.
He does not have to be politically controlling the President of the Republic or the Government.
ENS: So, who is the head of the Attorney General, the Supreme Court who elects him or does not have a superior?
JGHG: He does not have a boss, he is independent, he is subject to the Constitution, and the Constitution grants him a series of powers to fulfill those functions, he is the holder of the criminal action.
He has a series of transcendental functions, he is not a subordinate of the Government or of any other branch of public power, he fulfills functions that are independent.
The issue is not about headquarters, what is involved here is to fulfill the functions that the Constitution indicates to each one. The Government is directed by the President of the Republic, he draws up the administrative guidelines, he is the supreme administrative authority, the head of government, but he does not exercise leadership over the other branches of public power.
And the Prosecutor does not exercise a control function over the Government. Even in the case of crimes, the President of the Republic is not investigated nor can he be investigated by the Prosecutor because he lacks jurisdiction. The one that can investigate the President of the Republic is the House of Representatives, through the Commission of Accusations. And the House of Representatives can impeach him before the Senate of the Republic.
ENS: Do you agree with the election system for the Attorney General, where the President of the Republic has the power to nominate candidates?
JGHG: I believe that the current system of election, not only of the Prosecutor, but of the Attorney General, the Comptroller General and the Ombudsman, that system that is provided for in the 1991 Constitution, should be reviewed to ensure that there is no dependence on those officials before the President of the Republic or before the government.
In the last governments this has happened: the presidents appointed people who were their subordinates. Then President Santos appointed Dr. Néstor Humberto Martínez as Attorney General of the Nation, when Néstor Humberto had been his minister and official in his government. And he had it and was elected Prosecutor. What independence he could have he, as he had no independence.
And the same happens with the current prosecutor Barbosa, who had him? President Duque, but he came from being there in the Presidency of the Republic a junior official of President Duque.
So, it is worth considering that these functions are carried out by people who do not have any bond of gratitude or friendship with whom they were, because then they lose their independence, which is what we have seen with the current Prosecutor and with previous prosecutors.