—Jorge González-Jácome, Universidad de los Andes Bogotá
After many failed attempts to achieve peace since the 1980s, the Colombian government and the rebel group, FARC, sat down in Havana in 2012 to start a new round of peace talks. Four years later, the two parts have reached a 297-page agreement to finish a five-decade-old armed conflict. Roughly, the peace deal includes issues dealing with rural reform, political changes that will help the FARC in its transformation into a political party, an array of mechanisms of transitional justice, a set of commitments regarding the dismantling of the illegal drug industry that partially funded the FARC’s struggle, and a set of special procedures and reforms that will be necessary for the implementation of the agreements. Within this process the people will be heard: the pact must be approved or rejected by the people through a plebiscite. On October 2 Colombians will vote “Yes” or “No” on this agreement.
The plebiscite is a direct democracy mechanism established in article 104 of the Constitution through which the President and his ministers, after approval of the Senate, can ask the people their views on political issues that are relevant for the whole nation. According to the Constitution, the decision of the people will be “compulsory.” The Senate enacted a statute calling on the people to vote for the plebiscite and the Constitutional Court upheld almost all of the articles of the Statute. However, some of the articles of the Statute were declared unconstitutional. For example, article 3, which established that “Congress, the President and other branches, institutions and state offices must enact the appropriate measures for the purpose of fulfilling the people’s verdict expressed in the polls,” was struck down. The Court held that the plebiscite was an expression of popular support for a policy pursued by the President. The effect of the plebiscite, according to the Court, would be to give legitimacy to governmental decisions; it does not amend the laws or the Constitution. Accordingly, Congress, judges and other governmental institutions cannot be bound by the plebiscite and therefore the peace deal is not a legally binding norm. If Colombians vote “yes” it will be a sovereign expression of the people that binds the President in fulfilling the terms of the decision.