—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.
This ruling clarified an important point regarding the status of the agreement: it is a political document without the force of law. If voted favorably on October 2, the President will be democratically legitimized to pursue the realization of the issues agreed with the FARC. Nevertheless, opposition parties that have criticized the negotiation with the guerrillas since day one are still wary of the normative status of the agreement and the procedure for its incorporation into domestic law. Last June, Congress approved a constitutional amendment adding several temporary articles to the Constitution. One of the most problematic articles from the perspective of the normative status of the peace agreements establishes that the latter is a “special agreement” within the framework of the 1949 Geneva Conventions. Like all international treaties, the agreement will be incorporated into domestic law when Congress approves a statute through a fast track procedure established in the amendment. One purpose of calling the peace treaty a “special agreement” is to make it a part of international humanitarian law. Thus, once incorporated to the Colombian legal system, the agreement would be part of the “constitutional block” – a doctrinal conception that the Constitutional Court has constructed through its case law, and which states that some norms not explicitly found in the Constitution, for example all treaties regarding international human rights law and international humanitarian law, have constitutional status.
Even though Colombians are less than two weeks away from the plebiscite, the opposition, led by former President and current Senator Álvaro Uribe, has filed a claim of unconstitutionality before the Court. Those who oppose the reform rely on the doctrine of “substitution of the constitution,” through which the Court has held that some features of the Constitution cannot be amended by Congress because they are essential principles of the document. These essential principles may only be changed by the people themselves, through a Constituent Assembly. Thus, the substitution of the constitution doctrine is a species of unconstitutional constitutional amendment doctrines that are found in some countries around the world.
The Constitutional Court will have to decide this issue and some other cases that will certainly arise in the implementation of the peace agreements if the “Yes” option wins on October 2. The framework of the substitution of the constitution doctrine will definitely be the background against which the Court will have to decide its future cases. In the plebiscite decision of last month, the Court’s hold essentially meant that the plebiscite itself did not constitute a constitutional amendment – rather, future constitutional reforms will need to include such amendments, which will then be reviewed by the Court. Moreover, since the Court stressed that the plebiscite does not have any directly binding effects on the judicial branch or the Court itself, it is plausible to read it as a note that the Court will take any challenges to future reforms seriously, regardless of a positive vote in the plebiscite.
In this context, for constitutional law scholars one of the most interesting issues that arises from the Colombian situation is the relationship between constitutional tribunals and public opinion. The question is the extent to which the October 2 election might influence how the Court will address future cases involving related constitutional amendments. In a scenario where the “Yes” vote wins by a landslide, will the Court need to be less stringent in its analysis of substitution of the constitution? The Court has never faced a scenario in which popular will politically legitimized a reform by Congress. Perhaps the Court might develop a new doctrine about the intensity of the “substitution of the Constitution” scrutiny when a plebiscite favored by the political branches is also approved by the people. Because the doctrine rests ultimate authority on the people, such a position might be imaginable.
Many political figures are pressing the Court by attempting to show that public opinion is with them: Senator Uribe filed the unconstitutionality claim with more than a million citizen signatures supporting his request. Both the FARC and the government are convinced that the majority of the people want “peace.” The role of the Court in this juncture is crucial: public opinion, but above all, formal mechanisms of direct democracy such as the plebiscite, might shape the substitution of the constitution doctrine. And this is especially important for those of us who think that, in a country divided by a permanent civil war, a Constitution should not be understood as a finished and definite version of the possible political agreements in society, but as a set of terms that should be open for the continuing renegotiation of non-violent political antagonisms.
Suggested citation: Jorge González-Jácome, Courts and Public Opinion: The Colombian Peace Process and the Substitution of the Constitution Doctrine, Int’l J. Const. L. Blog, Sept. 28, 2016, at: http://www.iconnectblog.com/2016/09/courts-and-public-opinion-the-colombian-peace-process-and-the-substitution-of-the-constitution-doctrine/
 Corte Constitucional, Sentencia C-379/2016, Magistrado Ponente, Luis Ernesto Vargas.
 Congreso de la República, Acto Legislativo 01 del 7 de julio de 2016.