Public Law Colombia, Towards the Bicentennial and the 2020´s

César Barrero Berardinelli

Senior Associate, Coordinator of PPU´s Public Law Practice and Director of PPU´s Barranquilla Office

During the past, few months an increasing number of scandalous corruption cases have been brought to light in various sectors.  As a reaction, a somewhat vociferous and widespread advocacy promoting the enactment of new laws and reforms of the existing legal framework (including the Constitution, even referendums), has been making its way into public opinion without serious supporting debate or arguments, as if the legal framework in place were flawed or lacking adequate rules to dissuade and punish corrupt practices.

In dealing with corruption this newfound approach is not only fundamentally mistaken, but perhaps opportunistic, ill-intentioned and potentially costly, as, among other factors, it appears to be driven by the upcoming 2018 Congressional and Presidential races which are closing in on aspiring candidates, while political leaders, parties and citizens’ movements alike are seemingly finding themselves in need of simple, catchy campaign motifs.

Do not be misled by my preceding remarks. I am not advocating for corruption to pass unnoticed.  Much less unpunished. Corruption must be prosecuted, punished, and exposed. It is perilous and a serious threat to stable, consolidated modern day democracies. More so, if it becomes generalized in recently restored democracies such as ours. In such cases, these may even collapse. A picture of our neighboring region should suffice as both exemplary and unfortunate in this respect.

The reductionist approach that certain sectors have been advocating for by no means represents an effective solution to fight or curtail corruption, nor the right way forward either, since the detrimental effects of an artificially oversimplified vision may come at the expense of a fundamental loss of confidence in Colombia´s Public Law apparatus (principles, rules, institutions, the constitutional and administrative legal frameworks) when our country needs it most.

This is so because never as in the present had the practice of Public Law in Colombia become so crucial, even essential, to the country´s social and economic progress. Never as in the near past and present had key economic sectors been so highly involved in, and affected by, the day-to-day practice of Public Law in our country.

Consequently, a loss of confidence in Colombia´s Public Law apparatus stemming from blurred views on how to fight corruption would seriously undermine the last decade´s hard work and efforts which have proven successful in attracting domestic and foreign private investment and financing and spurred private sector involvement in amounts or areas traditionally lacking it, such as transportation infrastructure (4G P3 Roadways, Airports, Ports and Rails) with recently attracted projected expenditures in excess of US$30Billion in roadways alone.

Our challenge is therefore that of maintaining this much-needed private sector involvement despite the corruption storms that have come to light and new findings that seem to be looming. 

Now, to be clear and in all fairness, although the legal framework in force is far from perfect, it does contain a considerable number of principles, rules and statutes, which deal with corruption following international benchmarks which set forth specific effects to public servants and private parties found responsible of corruption.

In fact, Colombian rules in force provide for distinct types and degrees of responsibility which range from criminal liability, to fiscal, disciplinary, and administrative accountability, at least (corporate liability may also ensue and lead to piercing of corporate veils under Colombian corporate law). In certain events, the assessment of liability deriving from corrupt practices may even have an expansive effect, as under applicable rules broader reaching implications would follow and affect not only the directly involved subjects and/or companies, but would extend to affiliates (controlled and/or controlling companies) and/or companies administered by the subjects found criminally liable as well. Such is the case of debarment and overcoming debarment from government procurement and contracts. (I will expand on both types of debarment in another issue.)

Therefore, this newfound activism which markets fresh laws or legal reforms as magical cures for the ails of corruption is shortsighted and seems to hold that an illness can be remedied by merely reformulating prescriptions, yet conveniently overlooks that before prescribed medicines or treatments can be disproven in their effectiveness, they need to be administered.

Make no mistake, corruption needs to be dealt with and overcome swiftly by enforcing and applying the existing rules. This merits no debate, as the key issue at hand is not that of a falsely proclaimed insufficiency or inadequacy of the Public Law apparatus in place, but rather that of a negligent lack of will and resolve to prosecute, enforce and punish.

Moving forward, a sense of reflective awareness should guide the next institutional, hopefully coherently-articulated steps to overcome corruption. In that spirit, I must make an additional remark to unmask another blatant reality. The fact that the recent corruption cases have spared no branch of office, with findings at the highest levels of the executive, legislative and judicial powers alike speaks quite eloquently as to our society´s widespread indifference, perhaps even acceptance and moral tolerance of corruption. The rules in place, -in and of themselves-, should be more than sufficient to dissuade corruption. The problem thus relates to ineffective prosecution and enforcement. As such, the debate is not one of reforms to the Public Law apparatus, but one of criminal policy.

Let us not be distracted, the upcoming 2018 Electoral Races are Blurring a much-needed 20/20 Vision in the Fight Against Corruption.