En las manos del pueblo

DERECHOS FUNDAMENTALES Y TUTELA. LA CONSTITUCIÓN VIVA.

Episode Transcript

(00:01):
From the presentation of the village.We programmed the new Constitution and the frozen
promise. International human rights conventions andtreaties spoke of the need for any country

(00:22):
that deserves democratic institutions to ensure promptmechanisms for claiming rights. The Constitution of
eighty- six had thirty- sixor thirty- seven fundamental rights for citizens.

(00:44):
The Constitution of ninety- one enshrineseighty- seven fundamental rights. One
of them is the adoption of guardianship. Guardianship has made great strides towards realizing
people' s rights. There isa dialogue, there is an exchange of

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ideas that, in essence, isthe implementation of issues that the Constitution brought
to the ordinary life of Colombians,access to justice, that through guardianship,
for example, a person can asserttheir rights, can make them ballet through
a lawsuit for which one does notneed a lawyer, two do not need
or know how to write. Hemay submit a guardianship on the basis of

(01:33):
going to tell his story before ajudge of the Republic and that this becomes
a decision. It is not necessaryto be alive or conscious before the Constitution
of the ninety- one to understandthat Latu Te revolutionized it, shook the
Colombian judicial system in its foundations andyou see it in the statistics of how
guardianship began to be used. Thetutelage exploded people who say that tutelitis is

(01:57):
recklessly used from the action of yourcloth and is excessive. We must also
weigh that argument with the need forunsatisfied justice that is as great in Colombia
as the tutelage has responded to that. I believe that justice in Colombia,
before the action of tutoning a deeplyformalist justice, much more inaccessible, handled

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far fewer social conflicts than those nowtransmitted by justice. And what is it
then if we are talking about theConstituent National Assembly of the Social Pact from
the point of view of contractualism,for what should the Leviathan state do when
people renounce to settle their conflicts violentlysay good, you resolve conflicts. It

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' s justice. The great promiseof the Social Pact is justice, and
I think that was a long wayfrom it. In Colombia, of course,
there are still a number of thingsmissing, but the tutelage revolutionized that
and did get the judges to talkto the people. Before the construction of
the Tallos we did not have,for example, the public health system,
which was not enough, which hadonly fifteen percent coverage for Colombians. Today,

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with all the differences there can beon the developments of laws dealing with
the issue of health, as isthe law one hundred. Ninety- nine
points by nine, nine percent ofthe Colombian population is covered within the care
coverage to which services are regular,good, bad. That' s another
issue, but let' s sayin the Constitution of the 1990s and 1960s

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the bases of those big bases towhich more than six million Colombians have had
to make. To uphold the rightto health through guardianship. Yes, but
that' s what guardianship is forto demand that the system take care of
it. In the 1990s and 1990sthere were two very strong consensuses of all
forces. The first consensus was thatthere should be a truth to the Bill

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of Rights. The second consensus wasthat it was necessary to create institutions that
could make them a reality if theywere activated by citizens. And that was
Guardianship' s action. There wasa saying and it was more or less
like here the law is for Ruana' s and a little bit, the

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idea is the application of laws isarbitrary, that there is not a strong
right that applies to everyone equally butfrom time to time, what the Constitution
of the 1990s does and one toa large extent is to promise the end
of that arbitrariness. President César Gaviriamentioned it several times in the installation of

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the National Constituent Assembly and some constituentshave reminded him in these times to put
an end to arbitrariness and I believethat is one of those central aspects that
are seen today in the protests.People film and know that there is an
arbitrary act sooner than later it hasto be controlled, because under this constitutional
order, the arbitrary one has noplace and, if it happens, it

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must be repaired. I believe thatguardianship is the great triumph of the Constitution
of ninety- one. To thetutelage must be protected every coast has enormous
enemies, powerful enemies but without tutelagethere would have been no social conquests,
economic conquests, conquests of historically discriminatedcommunities. The last tutelage was the one

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that allowed or allowed to materialize thelittle that has materialized in the Constitution of
the ninety- one in society.In practice. The data has to be
kept. Of course we have tokeep it. But it wasn' t
just from the continent. It camefrom that project and had been raised by
Alfonso López Miquelz in the fifty-seventh year under the right of amparo,
but many times served for things thatare not. But guardianship is about important

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things. The greatest achievement of ourConstitution was to put itself in the hands
of all people, not only inthe form of cheap editions that are achieved
everywhere and that are in many houses. If they should call themselves the Constitution
of the ninety- first century withthe title of guarantee, it is precisely
because it installed the guarantee of rights, and not only leaving an extended Bill

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of Rights with respect to the Constitutionof one thousand eight hundred eighty- six,
but giving us a remedy that definitivelydemocratized access to a defense of our
fundamental rights, guardianship, so thatthis approach of the people to justice,
of the approximation of the people totheir rights to make them realize them that
no longer yield the cases that usedto happen before where a school girl who

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was pregnant the next day expelled herfrom school, without having heard her,
without asking her what had happened.That doesn' t happen anymore. It
does not happen in the Republic ofColombia. Domestic violence still affects us significantly,
but not as it affected us before. Because today, for example,

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a teacher, for example, aneighbor, for example, a passer-
by, can bring in a teacheron behalf of a child they see being
mistreated. Before, that was unthinkablewhy, because the child, in order
for him to file a lawsuit,had to do so through his legal representative,
and his legal representative, of course, was usually his father, and
his father was not going to suehimself. Therefore, that matter was left

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out of the possibility of judicial intervention. Today that is a reality and a
very important reality. Look at allthe cases in which there are people who
smile and smile thanks to a decisionthat made them stand up for themselves,
a right that before they had noway of doing. The authorities are instituted

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to empower citizens in their lives,honour and property. If that were fulfilled,
nothing more, because we would nothave the number of massacres, of
murders, of social leaders. Well, the index index di omicido and so
on clear. The Constitution states thatevery Colombian has the right to decent housing.

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But let' s compare that towhat' s there. She says
that the rights of children prevail overthose of others. But, please,
let us look at what is happeningwith me and not only the case of
rape that is not fixed with lifeimprisonment, but let us look at the
unprotected childhood, the immense budget offamily welfare, which is not dedicated to

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prevention. Wherever you look, theconstituent in terms of statements is impeccable.
What is missing is that they arefulfilled. It is like the great summary,
very important, very valuable in whatwe call the professors of constitutional in

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the dogmatic part per lousy of theorganic part, that is, in the
organization of the State. Yes,guardianship is very important, because it is
a quick mechanism that gives you accessto education. Well the one that works
a lot for us on the housingissue, because there are always those judges
end up denying the housing issue,but on the health issue it constantly fails

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in favor of the victim. Onthe subject of employment little by little,
but it works and I think itis the only mechanism that allows us to
have more direct access to claim ourright. But it doesn' t mean
I' m the only one.It means that we, too, need
to restructure it, reform it andgive it via Libby. That' s

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why we need politicians with political willto move forward, because there really aren
' t. That we also needto have people in these positions, politicians,
with professional ethics, with human quality. Yes, so that this violation
of rights and these so defa howmuch our country does not happen. Yeah,

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that' s easy. That's the narrative I' ve heard,
that' s the story I've heard. Of course, the
constituent from the point of view ofpeople of African descent, as it was
exclusive. Black people did not participatein the National Constituent Assembly. And that
reflects why today our rights are notguaranteed as peoples, women as well,

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although there are as some articles ofthe Constitution that recognize the rights of women
in this country, because in reality, in a real democracy, well,
I believe that in the National ConstituentAssembly there were expressions of political life and
social life that had not had anyspace. The indigenous people appeared, for

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the first time I remember Lorenzomuela deRoja Tirri. Christians also appeared, the
ortist doctor, someone else also fromsome Christian church and we appeared women.
That is to say, as well, women are making the Constitution. In

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itself, women making the Constitution beyonda series of elements that people manage and
analyze, which are the conquests ofthe minority sectors that, in essence,
are the majority added. It isnot true, national minorities are the majority.
I was always deeply attracted as anelement of philosophical change in the structure

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of a nation. Thus it hasstuck with drooling like this secularity why,
Because secularity was definitely the fundamental transformationof Colombian society, which has been a
society founded on the sword and crossof Catholicism and conquest and of the colony,

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on the devastation of an indigenous peoplethat today resists and secularity would have
had, because that also was relativeto changing the dynamics of the structures of
education in Colombia, that is,religious education. It is not that in
itself it is bad in the senseof bringing to people the idea of God

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and Catholic ethics and morals and such, but by the historical ways that the
Church has had about the country,that they are social, that they are
political and that they are sexual,and that they mess with individual freedoms and
guarantees. That was called the veryimportant Constitution. The free development of personality
is also part of this, thatis, that individual freedom, if no

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crime is committed, is above othersand that of children prevails even more.
Then secularity. I believe that thecountry also changed in some way, that
this was no longer in the nameof God, the supreme source of all
authority, not the name of thepeople, which is the constituent. In
primary, it was somehow possible tosee that the possibilities of education in Colombia
went through modernity and not through the18th century, through the 19th century.

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How much influence theoretical secularity had,the determination of secularity in the Constitution of
the ninety- one, because thatis also subject to variables of analysis,
because for some people, not forme, yes. It gives me the
impression that removing the dichotomy of goodand evil in the historical sense of the

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subjugation of monotheistic religions does the countrygood and even more so to understand that
those rights of supposedly minority people,who are ancestral peoples, are rights to
polytheism, that is, to believethat everything is God, that in every

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stone and that in every tree thereis God. And that means that this
has a fundamental relationship with the ecologicalsustainability of the planet and the country,
with the issue of ecology and theenvironment that has developed over the last thirty
years, with the part of theConstitution, which has to do with that,
with secularity, with ancestrality, withthe defense of land and territory.

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So all that has to do withthe constituent, but it was somehow green
in the ecological and environmentalist sense.He did allow people to start thinking in
some way about the recovery of lifeand avoiding warming up, because we'
re in those We don' tdo anything much, but there' s

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an awareness about that that goes andraises that constituent' s hand. Also
the great principle is the recognition ofthe human dignity of all people, regardless
of their creed, sexual tendency,regardless of whether they are part of one
diversity or another in the plan theethnic, sexual, ideological, etc.

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It seems to me that in thatwe have made progress in recognizing that each
person should be treated according to hisdignity and that each person deserves respect for
the fact that he is a humanbeing and that we have to keep that
in all the circumstances of life.There are issues that have to do with
definitions of legal and certain issues.I think that has been part of a

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long discussion in history. But whatwe have gained is necessary, indispensable to
affirm the clear recognition of the dignityof all people and that we cannot go
through stigmatizations or phenomena in which thereis exclusion of people for any reason,

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because I believe that guardianship is thetool more than the Constitution. It is
yes the tool that those who havenot had a voice to those who have
been expropriating all their rights for thiselite that has governed us. I believe
that guardianship has been the mechanism tocurb violence, to curb situations that degrade

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the human Hitnia of many people inthe right to health is a fundamental right.
But since we are in a staterun by an elite, it sees
the right to health as a business, because then guardianship appears in some common
way. Saved for such persons who, therefore, have no conditions for otherwise,

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to demand that their right be guaranteedto them. And in that sense,
I believe that this has been oneof the very important values of the
Constitution. Thus, that anyone couldfile constitutional claims was not considered a lawyer,

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then all citizens could be lawyers andclaim the unconstitutionality of what we saw
in the light of the Constitution,within the many tutelaries filed by citizens of
their own rights and others individual orcollective, a special case stands out and

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then, when I began to readthe Constitution, I said here is the
novelty. This is Alexandre Sochandamandu.I could not believe that that Constitution had
been adopted and then I took advantageof it to oxygenate, contribute to the
oxygenation of democracy. Alexandre is acitizen who has taken care to use the

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tutelage action as a tool for socialprogress in Colombia, seeking to defend fundamental
freedoms and rights based on knowledge ofthe Constitution. Of all these wards,
the most famous was perhaps the onethat resulted in the decriminalization of the minimum
dose of drugs for recreational use.The righteous man was tall and I think

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he continues to stand up, becausein the face of society in general,
I am still responsible for that sentencehaving taken place, because I sued her
and then the guilty that there aredrug addicts. It is me, supposedly,
but there are many more tutelaries broughtby this citizen interested in nothing other

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than social progress that for years wasdenied us as the lover of freedom,
which is the first demand on abortion. Why about abortion, because abortion was
a flag that everyone talks about abortionand everyone condemns it. But no one

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solves the solution of women who needabortion, which is to guarantee health,
education, housing, well- beingto the mother and neonatom, but everyone
opposes it. Abortion is not thewoman forced to give birth, and then
the woman' s freedom over herbody, what rights the man has to

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pregnant and what responsibility none and thenforbidden abortion. Well, I think there
are still some debates that are goingon. I believe that the issue of
abortion is undoubtedly being discussed, asthere are new issues coming up every day.

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I think they are going to discussthe issue of autanasia, that is,
everything is still being discussed on fundamentalrights issues, but let us say
today there is no one or thatI consider a great issue that the Court
is discussing. In other words,the issue of the state of emergency has
passed, the issue of the peaceagreement has passed. Then it seems to
me that at that time the Court' s agenda was a little more calm

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than it was at other times.At this point, many of the people
on the street may feel that theirrights have been affected, but they have

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no doubt that this is the caseand have no doubt that they can claim
them. And just that generates ahuge change with the situation that we lived
in the eighties, where we hadthe possibility of a state of siege,
and that a revolt of these conditions, since it could not claim that protest

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was a fundamental right, could notclaim its protection as wide as it is
now doing to it at the endof the day late than early with serenity,
the reason will be for those whoare protecting their rights in a reasonable
way. And that before we didn' t exist. There could be a
siege state decree limiting that option.The great change introduced by the Constitution of

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the 1990s is that it defines Colombiaas a social State governed by law.
By defining it this way, Iwas recognizing that we saw in a country
with great social and economic inequalities.That is the emphasis of the Constitution of
ninety- one, the social characterof the new Peace Agreement that represents a

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Constitution and, of course, pointedto the foundations and foundations of what this
social development should do. The mostimportant thing, if anything, was the
decision of faith in a social stateof law. Not only was it right,
but it was a social state oflaw, but in a very well

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- established list of rights, verywell written, very complete, an action
to enforce these rights of nation ofguardianship. According to Btian, the queen
of constituent an actor who edited onlyat the heart of the Constitution and its
development is the constitutional one in theinterpellation of the indigenous and the minorities to

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the res and they began to thankafterwards were totally missing from the national life.
All this is more important than anythingin that social state of law that
still lacks many real cars, butit is already written the basket in following
you lends itself and tightens you welland develops you well. There is great

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recognition that the security forces have limitsthat are established in the national Constitution and
are related to what is formerly inthe Constitution of eighty- six was called
the State of siege which is nowcalled states of emergency. At that time,
because the state decrees of the siteallowed, say, an excess in

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the use of force and made itlegal, as happened and we had to
live as members of the remedy.Nineteen are tried by the military criminal justice
system. The Constitution of ninety-one strongly prohibits military criminal justice from bringing
civilians to justice. Military criminal justicemust try the military, but it cannot

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judge because, let us say,it is a situation that is absolutely in
violation of fundamental rights. The Constitutionof ninety- one, by putting in
place fundamental rights, human rights,such as DNA, the constitutional system,
the legal system, links us toall systems of protection. It is not

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necessary to ask the international community forhelp here that if the Inter- American
Convention on Human Rights is violated,the Constitution and the Police Code are being
violated. At the same time,the internal rules are totally linked, and
that makes us have the presence ofinternational bodies. I think we' re
in two different scenarios. Guardianship isbut it is not alone nor created in

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a vacuum. It exists thanks tothe right- wing Charter MUC, which
includes not only fundamentals, but alsoopens the door to a second, third
and more new generations of constitutional rights. What does it mean to have a
Bill of Rights like our Constitution?What are the implications of the Bill of
Rights of our Constitution? Articles 11to eighty- two, some freedoms regarding

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how we dress our outfit, ifwe paint ourselves and don' t paint
ourselves with respect to our own body, identity, religious freedoms, which are
subject to very very, very importantprotection and have emerged, sexual freedoms,
freedoms of orientation, of thought thatwere perhaps not so protected before, and

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there were a lot of institutions thatcould ignore them, the school, universities,
companies. The frozen promise is aproduction of capital. Sound for capital,

(25:11):
public communication system. Today with thevoices of ever Bustamante García, Alejandro
Ramele, Achilles Arrieta, Gómez,a Louis, Alexander sondmandu am Holland,
Perea, Armando Novoa, García,Ana, Bejarano, ricort Canciona, Márquez.

(25:34):
Okay. I am there must,Mr Hector Fabio, Alfonso Gómez Méndez,
Juan Carlos Es Guerra portocarrero, AntonioMorales Ribeira, research and interviews by
Viviana Bello and Pablo convers En.The interviews were coordinated by Jorge Martínez and
Fernanda Rojas and conducted by Cristiano Hernández, María Alejandra Cuestas in the production,

(25:55):
Nicán González in the edition, narrationby María Alejandra Cuestas and Santiago Rivas.
The image is the work of LauraGoldstein. Networks of assistance, production and
realization thanks to the digital team ledby Jaime Barbosa and made up of Camila
Velandia, Felipe Laverde, Nicolás Peña, Nicolás Rodríguez, Sebastián Figueroa, Stephan
and Jaramillo, Laura Pava, MaviTorres and Manuel Borna, Dirección General de

(26:18):
Santiago Rivas. This special was madefor television in the alliance with the viewer,
whom we released some audios for someepisodes of this podcast. So thank
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