Editor’s Note: This piece is part of Just Security’s Assessing Emergency Powers During #COVID-19 series, which aims to highlight legal and civil society voices from across the globe, assessing the specific legal consequences of declared and de facto emergencies. Contributions have covered Italy, Hungary, Brazil, Poland, the United Kingdom, Nigeria, and Mexico (see here).
Latin America is now the epicenter of the COVID-19 pandemic. In addition to being a tough test for the pallid health systems in the region, the COVID-19 vortex puts in check two regional projects that seemed to be moving in a slow yet stable fashion over the last three decades: the fight against poverty and the strengthening of democratic institutions. The virus also interrupted a simmering period of discontent, in which citizens turned to the streets in mass protests to demand better and faster results from their governments in these two respects, as well as to denounce recent setbacks.
In the case of Colombia, this context overlaps with the critical initial phase of implementation of the historic peace agreement with one of the last surviving guerrilla organizations in the hemisphere. Comparative studies have shown that the first years of these agreements are pivotal for the consolidation of peace. Prior to the novel coronavirus, the unwillingness of the government to implement its commitments enshrined in the peace agreement had put the agenda for peace in a state of convalescence.
Just as the course of the virus within the human body depends heavily on the underlying health conditions of each patient, so too do the implications of government-imposed COVID-19 states of emergency depend on the underlying conditions in a country or region.
On that account, Latin American democracies are high-risk patients that suffer from at least four underlying conditions: authoritarian trends, high levels of state capture, widespread local corruption, and low levels of government accountability and transparency.
In Colombia, these underlying conditions have played an important role in the government’s pandemic response process. While much of the economic productivity of the country came to a halt, the production of new legal regulations has kicked into overdrive. From March 10 until today, the Colombian government has promulgated over 210 new regulations – inter alia decrees, circulars, and directives – to confront COVID-19. The list grows daily, which makes it very difficult for the legislative and judicial branches of the government, as well as civil society, to monitor or control such initiatives.
To make matters more complicated, the executive has adopted these measures through a strategic combination of measures grounded in state of emergency powers and those enacted in accordance with ordinary administrative powers. The powers from which these norms are derived generate unique challenges for their monitoring. On the one hand, exceptional norms that expand executive powers during times of emergency are susceptible to serious abuse. At the same time, the Constitutional Court has automatic judicial review over such norms, and they are meant to be temporary. On the other hand, ordinary regulations that are not drawn from emergency powers, in theory, should represent a lower risk of abuse, but paradoxically, the government has used these ordinary norms as an unauthorized de facto emergency for the most restrictive measures (such as quarantines and other restrictions on movement). These norms lack direct judicial review and tend to be permanent.
This confusing legal landscape is a breeding ground for the exacerbation of Colombia’s underlying conditions. Although the Colombian government has not resorted to extreme authoritarian measures – like those currently embraced by the government of El Salvador – it has exploited the pandemic to win political battles that slipped its grasp prior to the health crisis. For example, the government has attempted to unilaterally reform the 2016 peace agreement, and for the time being, it is effectively weakening the agreement’s implementation even further.
Other measures have sought to favor powerful political and economic interest groups while undermining human rights and environmental protections. An example of this trend was the Ministry of the Interior’s recommendation to carry out “consultations” with indigenous peoples in accordance with the principle of free, prior, and informed consent through virtual channels. Another norm similarly permitted the government to virtually conduct hearings related to granting environmental permits. These changes are not necessary to protect communities or government officials during the pandemic – consultations and hearings can be conducted, for example, using social distancing and mask wearing. If these changes were to materialize, the effects would be devastating for vulnerable rural communities. For now, these attempts to replace more robust safeguards with superficial measures have been thwarted, the former through citizen pressure and the latter through a judicially ordered temporary suspension on environmental licenses.
With regard to corruption, the crippling effect it has on the financial health and social services of Colombia can be equated to a patient already in need of a ventilator. As part of an extraordinary measure, President Duque made it easier for local leaders to make use of budget allocations to concentrate resources to deal with the pandemic, granting powers to governors and mayors to select vendors and contractors and agree to prices without any prior control or preliminary supervision. Accusations of misappropriation of emergency coronavirus funds as a result of this extraordinary measure range from state ministers and senior military commanders, to mayors and other local bureaucrats.
Added to this is the innate talent of the Colombian establishment to hide one scandal with another, in order to sweep the original problem under the rug and avoid accountability. The COVID-19 crisis has successfully diverted attention from severe human rights problems. For example, attention has shifted away from the systematic murder of social leaders, of which the government speaks very little (despite the president’s daily news briefs in the wake of the virus) but which has worsened during the pandemic. Similarly, the Colombian Army’s misuse of cooperation funds from the U.S. government –illegally funding the interception of communications of opposition political leaders, journalists, and human rights defenders – has evaded attention.
But the prognosis is not completely negative. Colombia is characterized by an active and resourceful civil society that, along with other sectors committed to democratic values, diligently works to prevent the abuse of this cocktail of declared and de facto emergency powers. Moreover, Colombia has courageous and committed public officials who have developed novel schemes for protecting women facing domestic violence and delivering social benefits and food rations to vulnerable families. And the country retains brilliant activists and academics who have come up with concrete and viable proposals to face the challenges of the pandemic in a more humane and democratic way.
Two proposals that could produce true changes to benefit society, and the most vulnerable in particular, are reforms to the unequal tax system and the implementation of an emergency basic income system. The goals of such proposals are threefold. First, if adopted, they would alleviate the dire economic conditions brought by COVID-19 to millions of Colombians. Second, their transformative nature would concretely address the demands by protestors and social movements that were taken to the streets right before the pandemic started. Finally, they would materialize some of the social commitments set forth in the peace agreement. It won’t be easy, but measures like these could lay the groundwork to nurse Colombia back to health.
Image: View of a southern area of Bogota, Colombia, at the bottom of a cross made of sticks installed in the Parque Serafin cemetery on July 04, 2020. The Parque Serafin Cemetery is one of the largest in Bogotá, the most affected city by contagion in the country, where most confirmed or suspected COVID-19 victims were cremated following strict health protocols. The cemetery has cremated up to 18 remains per day. (Photo by Guillermo Legaria/Getty Images)