Alejandro Ordoñez, Colombia’s inspector general, is an anti-gay, anti-abortion social conservative. That, we already knew. We also knew that he was very sympathetic to the government of President Alvaro Uribe: In May 2009, Mr. Ordoñez exonerated Health Minister Diego Palacio and former Interior and Justice Minister Sabas Pretelt of all charges in a case involving buying votes from a congresswoman in 2006. What we did not know, however, is that Mr. Ordoñez had the ability to twist and overlook crucial facts that he has demonstrated this week. In his eagerness to please the government, the inspector general has gone way out of line, showing that he is a man that cannot be trusted with the high office given to him.
As part of his duties as inspector general, Mr. Ordoñez this week issued an opinion on the constitutionality of the referendum that would allow President Uribe to run for a third term of the presidency. The inspector general’s opinion seems to be written by the promoters of the referendum themselves. In the 53-page document, Mr. Ordoñez totally shies away from objectivity, claiming that the “popular initiative [the referendum], being the manifestation of the people, maintains the character of a direct exercise of popular sovereignty” (page 5) and that it “is in agreement with the current constitutional order” (page 24).
In an episode of The West Wing, President Bartlett had a line suitable for this occasion: "Is it possible to be astonished and yet, at the same time, not surprised?" Of course we all expected the Inspector General to be in favor of the referendum. After all, he owes his job to the government. But did Mr. Ordoñez need to go to such great lengths in defending the referendum? Couldn’t he save a little face and show some objectivity in his opinion? The story of the referendum is one of inconsistencies, violations of the law, political warfare, lies and trickery. In his document, Mr. Ordoñez uses the minutiae of the law in order to wash all these things away and present the referendum as a clean, immaculate thing that it is not.
Let’s take a look. First, the inspector general states that the constitution allows the people “to substitute […] superior rules” via referenda. That is absolutely true: Colombians have the right to change the articles contained in their constitution by voting in a referendum. However, in 1991 the Constitution was drafted with a four-year long presidency in mind. The balance of power between the three branches of government was not created to resist a twelve-year presidency, and the whole design of the constitution could crumble under the weight of such a powerful executive branch. Colombia could then become what Fareed Zakaria has called an "illiberal democracy," ruled by a strongman elected by the people.
Some argue that perhaps Colombia would need a new constitution if there is going to be a president in power for twelve years. Yet Mr. Ordoñez dismisses this argument, claiming that the referendum does not imply “a change of sufficient importance to substitute the superior text [the constitution], but simply a quantitative modification regarding the figure of presidential reelection” (page 4). That is just a fancy way of saying what Mr. Uribe said many years ago, referring to his first reelection: it’s just a “little article” (articulito).
Note that in his document the inspector general does not explain why allowing a second presidential reelection does not imply a change to the constitution as a whole; he merely states it in intricate legal terms. In page 5 of his opinion, Mr. Ordoñez uses the argument that since the Constitutional Court believed that allowing one presidential reelection did not alter the design of the constitution, two will do no harm. He implies that, given that the referendum only promotes “reelection for one additional term,” in other words exactly what happened with the first reelection, there is basically no difference this time. That argument is hard to buy.
The inspector general moves on to evaluate the “vices of procedure” involving the referendum; in other words, the small and large illegal maneuvers that had to occur for the referendum to be where it is today. Let us remember what these are: first, the group of people who collected the signatures for the referendum received some donations that went beyond the limits set by the law. Second, once it reached Congress, the text of the referendum was changed by the lawmakers. Interpreted literally, the text signed by the people who were in favor of the referendum would have allowed Mr. Uribe to run for President in 2014; Congress changed it so that the President could run in 2010. Third, the House of Representatives voted on the proposal for the referendum during an “extra session” that did not fulfill the legal requirements for such an occasion.
Mr. Ordoñez dismisses each and every one of these vices with amazing economy and more legal obscurities. The illegal donations for the signature collection “do not have the reach to enervate the popular intention to reform the Political Constitution” according to him (page 13). Regarding the change of text made by Congress, Mr. Ordoñez writes: “´[t]he legislator [Congress] only clarified [precisó] the intention of the people without altering it” (page 23). One part of the document says that the will of the people must be respected because it is “sovereign”, but another part says that Congress needed to “clarify” that will. How convenient.
Finally, about the extra session in the House of Representatives, the inspector general argues that the whole thing was “constitutional” (page 31). Just like that. No biggie. It doesn’t matter that the decree calling for the extra session did not appear in the official gazette, as is required by law. It doesn’t matter that the decree calling for the extra session was drafted when Congress was not in recess, which also goes against the law. Mr. Ordoñez dismisses these arguments, or simply says that the critics have an “erroneous” understanding of the law (page 27).I asked presidential candidate German Vargas Lleras via Twitter (follow me here) what he thought about Mr. Ordoñez’s opinion. Mr. Vargas wrote: “I respect the statement of the Inspector General, but the decision is at odds with the country’s judicial reality.” That, I am afraid, is an understatement. Can-do lawyer that he is, Mr. Ordoñez has written the most shameless defense to date of a referendum inundated with illegality. What a disgrace for a man who is supposed to “protect the observance of the Constitution and the Law”. Let us hope the Constitutional Court has greater self-respect than the inspector general.