Public Policy

On 25 February 2020, the Anti-Corruption Institute participated in the “National Conversation”, the public participation strategy led by Colombia’s National Government. Specifically, they were part of the Transparency and the Fight Against Corruption Roundtable, during which the issue of justice reform was debated.

During this discussion, the Institute presented the proposals and comments detailed below:

  1. Transparency and accountability:
    1. The Constitutional Court and the Council of State have adopted a series of measures that allow for greater accountability, however, there is still a lack of uniformity in the courts to transmit the information in a timely manner to the public. This has been the case, for example, during the selection process for the National Registrar and in the official communications around the appointment of senior dignitaries.
    2. There is a lack of transparency within the judiciary that favors the commission of corruption crimes.
    3. Another challenge related to accountability within the judiciary which is related to decisions taken by judges, which are often leaked to the media before their content is duly published. This process should be reviewed as the basis of the sentences are not in the public domain, therefore it is not possible to exercise social control over them and, as such, their legitimacy is put at risk.
  2. Nominating powers of judicial corporations:
    1. The proposed draft reform of the nominating powers of judicial corporations is necessary and convenient, since the current model, whereby the Superior Council of the Judiciary issues a list of candidates from which the Supreme Court and the Council of State make their choice, does not allow for transparency, nor does it favor a meritocratic process. For that reason, one needs to consider removing the Council of State’s intervention and instead prioritize engagement with the public during the selection process as a means of ensuring greater transparency and avoiding the politicization of justice.
    2. Expanding on the point made previously, the roundtable also raised another related issue around the current proposals for justice reform as presented by the Ministry of Justice, namely the failure to address modifications to the election process for the Attorney General of the Nation. This is particularly problematic as the President of the Republic is charged with compiling and presenting the shortlist of candidates for this position, which can generate a numbe of conflicts of interest and allow for the executive power to hold influence over the judiciary.
    3. The reforms propose a 4-year cooling-off period for those people who have held high-level positions (as defined in Article 2 of the draft document) and who then wish to run for publically elected office. Likewise, a cooling period of 1 year is proposed for those who seek re-election to the same position or for any of the other positions named in the article. However, we believe that this 1-year cooling-off period it is not sufficiently long and furthermore is not in line with the terms of the Anti-Corruption Statute, who state that it should be a minimum period of 2 years.
  3. Probity
    1. The proposed reforms suggest that candidates applying for roles as High Court Magistrates must declare any conflicts of interest upon entering and leaving office.
    2. Meritocracy needs to be one of the basic principles in the probity model for the judiciary.
On 23 January 2019, the Anti-Corruption Institute participated in the public participation strategy led by the Colombian National Government, known as the National Conversation. Specifically they were part of the Transparency and Fight Against Corruption Roundtable, during which the issue of political electoral reform was discussed. During this discussion, the Institute presented the following proposals and comments:

 

  1. Campaign Financing
    1. It is necessary to review the definition of what constitutes financing for a political campaign, bearing in mind that on many occasions members of the public donate money to support their preferred candidates, with or without authorization from the campaign, as part of their legitimate right to political participation and freedom of expression.
      These incidences raise various questions, such as: Do such contributions constitute an act of campaign financing? Should the candidate or the campaign manager take responsibility for these financial contributions, even if they have taken place without their consent? What should be imposed in terms of any future restrictions in making contracts with the State?
      To-date, the law has not provided a satisfactory answer to the questions posed. For this reason, it is important to be very specific when defining the scope of financing for political campaigns in order to minimize any associated risks that might arise from these behaviors.
    2. The financial sector has real-time information on user transactions, as well as the ability to generate aggregated data by municipality or department, in order to monitor and detect anomalies during electoral periods.
      This cooperation between different banks could help with the cross-referencing of information about other banking “movement” by territory and within the framework of Asobancaria. This data should then be shared with the relevant and competent authorities such as the UIAF, the Superintendencies and the Prosecutor's Office, so that they can monitor and carry out any required follow-up on financial patterns during elections, segmented into individual municipalities or departments, and therefore exercise greater control.
  2. Strengthening of political parties and movements
    1. In the debate on strengthening political parties and movements, the use of closed, open or semi-closed lists for elections was discussed.
      During this conversation, the Institute established that closed lists can be plebiscitary and tend to be entirely at the will of the party proposing the candidates. As a result the Institute proposed the use of semi-closed lists, which allow the first 10 seats to be blocked and then subsequently opened.
      In a similar vein, the Institute highlighted the need to work on ensuring gender equality in party lists and seats.
    2. Candidates should only be permitted to run for one political party, rather than coalitions or multiple parties, which are often suggested by the political parties.
    3. When a Governor or Mayor is removed from office, the President of the Republic must designate a temporary replacement from a short list presented to them by the political party of the governor or mayor who has left their post.
      This model does not allow the party to take responsiblity for the actions of its members, therefore there should be no reason for them to be charged with selecting the successor. To this end, the process to fill the empty seat vacated by these governors and mayors, should be undertaken in a different manner.
    4. Article 18 of Law 1475 of 2011 requires political parties and other relevant movements to allocate a sum of no less that 15% of State contributions within their annual budgets to their think tanks, for the purpose of educating and providing training courses on political and electoral affairs, and to promote the effective inclusion of young people, women and ethnic minorities.
      However, these resources are often used by parties for political proselytizing events only, rather than helping to reinforce wider party ideology. This is why there should be more, improved regulation of these resources so that they meet the objectives proposed by the Law.
  3. Elections and composition of Congress
    1. The National Public Commission for the Fight Against Corruption carries out activities that do not have a real impact in the fight against corruption, which is to say that they are more symbolic. This is why by giving the Commission the responsibility to elect Magistrates to the National Electoral Council will give them real power.
    2. The trials and other procedures undertaken by the National Electoral Council must be carried out publicly and take the form of hearings.
    3. The use of “blockchain” and Information Technology (ICT) is necessary to facilitate the fight against corruption.

The Institute’s position on the Anti-Corruption Consultation

The following document outlines the findings of the International Institute on Anti-Corruption Studies (the “IIAS”) following their analysis of the questions that the Promotion Committee of the Public Anti-Corruption Consultation (the “Consultation”) is looking to put to Colombians.

The Institute is looking for opportunities to share their recommendations with the Colombian Senate of the Republic regarding the benefits (alongside the associated risks) of their decision to invite the Colombian public to participate in the Consultation. It also seeks to provide information that will help Colombians to make informed decisions when voting on the different elements of the Consultation, as well as broader analysis that might prove useful for opinion formers and the media.