President Abelardo de la Espriella announced, during his speech this Sunday, that the Police will be able to enter public universities to act against those who promote violent acts within the campuses.
“University autonomy is not above public order,” stated the president, who revealed that a protocol is already being worked on to outline the scenarios in which the Public Force may intervene.
The announcement revives a discussion that is not new in Colombia, but which until now had never been raised so directly from the Presidency of the Republic. And the fundamental question is whether what the head of state proposes has legal backing.
The answer, according to current regulations, is not an absolute yes or no. It is, rather, a “depends on the circumstances” that Colombian law regulates quite precisely.
In his intervention, De la Espriella qualified as “unacceptable” what, according to him, happens in some public institutions due to attacks on the civilian population, the Public Force, and infrastructure.
“Urban terrorism, vandalism, destruction of infrastructure, and attacks on our Public Force and the civilian population are not protests,” he said.
The president went further and warned: “I will not allow public universities to continue being sanctuaries of violence.”
However, he qualified his announcement by recognizing that “universities have autonomy” and stated that the measure “protects students, the Public Force, and the State itself.”
It is expected that during this week the Government will disclose the details of the announced protocol.
What the Constitution says about university autonomy
Article 69 of the Political Constitution enshrines university autonomy as an institutional guarantee. Universities can establish their own statutes, elect their authorities, and define their academic, administrative, and financial regime.
Law 30 of 1992, which organizes the public higher education service, develops this principle in its article 28. There, universities are recognized the right to define their programs, select their professors, and admit their students, among other powers.
But that autonomy has never been interpreted by the Constitutional Court as absolute.
This was established, for example, by ruling C-829 of 2002, which defined autonomy as the discretion necessary for academic development, “with the limit that such autonomy finds in public order, the general interest, and the common good.”
The ruling C-337 of 1996 also expressed the same, setting public order and the common good as limits to autonomy.
That is to say: the constitutional norm has already contemplated, for more than two decades, that public order can prevail over university autonomy in certain circumstances. In this regard, the president’s statement has jurisprudential support.
What exactly does Law 30 say about this?
It is worth clarifying because it is often cited imprecisely: Law 30 of 1992 does not mention the Police, the Public Force, or entry to campuses anywhere in its articles.
What it does do, in its articles 3, 28, and 29, is define autonomy in a taxative way: to establish and modify statutes, appoint academic and administrative authorities, create and develop programs, grant degrees, select professors, admit students, and manage their own resources.
That is, the law circumscribes autonomy to academic, administrative, and financial matters. It does not address security or police powers.
Therefore, neither those who defend the entry of the Public Force nor those who reject it can cite Law 30 as literal support for their position. The debate is resolved, in practice, by crossing article 69 of the Constitution with the National Police Code.
Beyond the Constitution, there is a specific norm that regulates when the Public Force can enter a property without prior authorization: articles 162 and 163 of the National Police and Coexistence Code (Law 1801 of 2016).
That law replaced the old Decree 1355 of 1970 and establishes that police authorities can enter a home without a written order when there is “imperative necessity,” among other cases, due to flagrancy or imminent risk to people’s lives.
Universities, in that sense, do not have a special exception in the text of the law. For the purposes of that norm, a university campus is, legally, a property like any other.
The Constitutional Court reviewed the constitutionality of those articles in several rulings: C-223 of 2017, C-212 of 2017, and C-334 of 2017.
In those rulings, the high court endorsed the power of entry without a judicial order but imposed one condition: that entry must give rise to subsequent judicial control, at the request of the person considered affected, to examine the validity of the police action.
Thus, the norm does allow the Public Force to enter a campus without the rector’s authorization when there is flagrancy or risk to life. But that entry is subject to a judge reviewing later whether the action was within legal limits.
Is there any norm that prohibits it?
No Colombian law, decree, or ruling expressly states that the Police cannot enter a public university. That literal prohibition does not exist.
What does explain why some sectors insist that entry would violate autonomy are four different sources, none of them a formal prohibition.
The first is the internal statutes of each university, approved by their own higher councils, which usually establish the rector as the highest authority within the campus and require their coordination for the entry of external agents.
The second is a broad — not literal — interpretation of article 69 of the Constitution, according to which control over who enters the campus would be part of that capacity for self-determination, although the constitutional text does not say so.
The third is a historical and political tradition rather than a legal one: the Córdoba Reform movement of 1918, which inspired university autonomy throughout Latin America, understood the campus as a space protected from direct police and military intervention.
The fourth is the factual precedents of violent episodes, such as the student who fell into a coma after an Esmad intervention at the University of Antioquia, which fuel distrust towards any police entry, beyond what the norm says.
Even the rector of the National University, José Ismael Peña, qualified this argument this week: he said that autonomy and security “can coexist” and acknowledged that the Public Force can enter without authorization from the authorities when it involves a serious crime, such as a terrorist act, a seriously injured person, or the commission of a crime.
Voices for and against
Jurists consulted by various media in similar episodes have defended that same reading.
Lawyer Hernando Herrera, director of the Corporation Excellence in Justice, has stated that “the Esmad (now UNDMO) is not prohibited from entering universities,” although he clarified that it must be done “in coordination with the authorities” and respecting the right to protest.
Former magistrate José Gregorio Hernández has also spoken along those lines: if inside an institution “there is a situation of violence, disturbance of public order, of course the public force must enter to restore order.”
Under this stance, university autonomy protects academic and administrative matters but does not turn the campus into a space exempt from criminal law or police action in the face of flagrant crimes.
On the other hand, university rectors and administrators have insisted that the entry of the Public Force without prior dialogue worsens conflicts instead of resolving them.
The National University of Colombia, for example, rejected in 2020 the entry of Esmad to the University of Antioquia and warned that such actions “violate university autonomy, a fundamental pillar in the construction of any modern society.”
Other defenders of autonomy have recalled episodes from previous years in which police intervention ended in serious assaults on students, including the case of a young man who fell into a coma after being beaten by the Police at the University of Antioquia.
From this sector, it is also argued that if rectors allow the automatic entry of the Police in any disturbance, the confrontation between students and the Public Force tends to worsen rather than decrease.
A bill
The president’s announcement also comes amid a parallel debate in Congress.
On September 1, the bill known as the “Anti-Hood Law” was filed, promoted by representatives Jaime Arizabaleta, from the Democratic Center, and Julio César Triana, from Radical Change.
The initiative seeks to create a criminal offense for those who hide their identity with hoods, masks, or balaclavas and, under that anonymity, commit vandalism in demonstrations, with penalties ranging from 54 to 96 months of non-paroleable imprisonment.
The filed text focuses on identity concealment and the toughening of sanctions for road blockades. It is not clear, based on the articles known so far, whether it explicitly retains provisions on the entry of the Public Force to universities, a point that had been mentioned in announcements prior to the filing of the bill.
MATEO CHACÓN ORDUZ | Deputy Editor Vida de Hoy
