—Antonio Barreto-Rozo & Jorge González-Jácome, Universidad de los Andes
The Colombian Constitutional Court has the final word on the legality of a large number of rules that seek to implement the peace agreement (hereafter the PA) reached last year between the government and the FARC guerrillas. One of the key points of this settlement is that the former rebels accepted to recognize the legitimacy of the 1991 Constitution. As a result, Colombia is facing a complex predicament: the government and the guerrillas acknowledge the need to make deep changes in the social, political and legal structures of the country and at the same time they decided to make these profound transformations without producing a major constitutional reform. Hence, the Constitutional Court is reviewing the constitutionality of a large number of decrees and statutes according to the different doctrines developed since the tribunal’s creation in 1991. Among the most important doctrines that the Court has developed and used since the 1990s, the theories of the substitution of the Constitution and the “constitutional block” are two powerful instruments that the tribunal can deploy in reviewing the implementation of the PA. While the former gives the Court the power to strike down amendments advanced by Congress when the tribunal considers that the reform is altering an essential part of the Constitution, the latter incorporates international human rights and international humanitarian law treaties (among others) into the Constitution. Accordingly, the constitutional block allows the Court to use international law as a criterion to determine the constitutionality of amendments.
In one of the first constitutional battles around the PA, which has ultimately shaped the complex tensions involved in seeking a transition without altering the Constitution, the Court approved the statute calling for a plebiscite in which the people had to either approve or reject the peace agreement in the ballot box. The Court stressed that the plebiscite was a constitutional mechanism of a political nature that Presidents could use to gain approval for public policy decisions; its goal is to give strong legitimacy to the executive’s decisions but it did not entail a constitutional or a legal reform. The “No” vote rejecting the agreements won the plebiscite by a very narrow margin and the government and the guerrillas were forced to renegotiate parts of the settlement incorporating some of the criticisms levelled by political leaders that opposed the negotiation. After the agreements were amended, the government decided to approve the new pact through Congress. An overwhelming majority of the legislature approved the renegotiated agreement, while a minority still opposed to them demanding a new plebiscite. The Constitutional Court decided that congressional approval was enough to push forward the implementation of the PA (Decision C-699/2016). Political leaders rejecting the peace process with the FARC then took their fight to the judiciary: considering the Court’s status as the final arbiter of the main legal measures agreed in the peace process, they have not only filed unconstitutionality petitions and amicus curiae asking the tribunal to strike down rules implementing the PA, but have also tried to influence the last two congressional selections of new justices to the Constitutional Court.
This extremely tense environment has led the Court to adopt a particularly narrow approach to judicial review of rules that seek to fulfill the commitments of the bargaining parts in the PA. There are two scenarios in which this approach has been noticeable. The first one has been hotly debated in Colombia and revolves around the Court’s decision to declare the unconstitutionality of a special legislative procedure to enact statures implementing the PA. In Decision C-332/17, the Court argued that the procedure, which limited the ability of Congress to change the laws presented by government implementing the PA, was a substitution of the Constitution to the extent that it was “incompatible with the democratic principle and the separation of powers and, as a result, it substituted the Constitution.[1]
The second scenario in which the Court has approached the problem from a narrow perspective deals with the constitutional review of extraordinary decrees enacted by the President according to constitutional amendment that gave the President the possibility, for 180 days, of promulgating rules to “facilitate” the implementation of the PA. Reviewing some of these decrees, the Court has argued that the government has the burden of proof to show that these rules are absolutely necessary to implement the PA. Additionally, in some cases, the Court has declared that these decrees are analogous to those promulgated under states of exception and thus have to confront a strict judicial scrutiny, which has to determine “strict necessity” of the reviewed measure (Decisions C-160/2017 and C-331/2017). In short, according to the Constitutional Court, transitional rules are exceptional rules. Through this stringent standard of review there is an enormous risk of striking down several decrees and laws that the government needs to implement the PA and face the challenges posed by a guerrilla force that has laid down arms and is ready to be a new political actor after the conclusion of a peace process praised by the international community, but bitterly criticized inside the country.
From a political perspective, the Court’s position in these two scenarios might be derived from the fact that the “Yes” side lost in the plebiscite and thus some rules – particularly those on the most polemical issues – are perceived to have a weak presumption of constitutionality. The cautious approach of the Court to transitional rules, however, runs the risk of frustrating, once again, the demobilization of guerrillas in the country and the overcoming of an armed conflict that produced one of the worst humanitarian catastrophes in the Western hemisphere. From a historical point of view, the Court is reproducing one of the legal problems that ran against peace efforts in the late 1950s and early 1960s. Back then, Colombian political leaders did not have a workable and qualified concept of transition and thus sought to implement the peace process through temporary state of siege decrees and extraordinary decrees enacted by the President. Political leaders back then considered transitional rules as exceptional rules. The impulse to re-establish legality after the historical period known as La Violencia led to the abrogation of rules seeking the social and economic rehabilitation of the countryside. The impulse of restoring constitutional normalcy in the 1960s ended in the abrupt end of special tribunals that were solving property conflicts in the countryside. Before the 1980s, transnational constitutionalism and international law did not have a sophisticated understanding of the problem of transition. The constitutional imagination of jurists, prior to the 1980s, was limited by an understanding that Constitutions had, roughly, two hypothetical factual scenarios: peace or war. Normalcy was the province of peace, while abnormality amounted to war. Jurists could not imagine, a different category in between these two scenarios. The category of “transition” came later in history. Peace negotiations and rehabilitation plans in the late 1950s were implemented through extraordinary legislation and decrees of states of siege and were seen as part of the province of abnormality. The lack of a working concept of transition in the 1960s might have limited the constitutional imagination of political elites to pacify the country and might have triggered anxieties of political elites to stir the country swiftly towards normalcy. The FARC were born a couple of years later after the frustration of these peace expectations.[2]
Turning back to the present, the question is if Colombians can and should demand a different political and legal approach from its Constitutional Court to overcome the conflict. We believe that, from a political point of view, the Court should not forget the main inspiration of the 1991 Constitution: the key argument that led to the demise of the 1886 Constitution certainly revolved around peace. In 1990, the Colombian Supreme Court declared the constitutionality of the call for a Constituent Assembly on the grounds that the 1886 was ineffective because its rules had not been able to achieve a peaceful coexistence among Colombians. The ineffectiveness of the charter justified an effort in reaching a renewed political pact. In the debates of the 1991 Constituent Assembly, the concern with this problem led some delegates to push forward a right to peace that ended in article 22 of the current Constitution and to establish transitory articles that gave powers to the President to seek negotiations with guerrilla groups.[3] The importance of peace in the 1991 constitutional framework might demand a nuanced approach on behalf of the Court, for instance, in its association between transition and exception. Rules related to the peace process are crystallizing the right to peace, among others; they are not restricting or limiting rights as it occurs in the archetypical state of exception. From this perspective, the Court is treating rules implementing rights as if they were norms seeking to restrict them.
The Constitutional Court is at a crossroads. It finds itself in the uncomfortable, yet privileged, position of being responsible of having the last word on a political issue that will very likely shape the future of Colombia. There are legal possibilities to interpret the rules developing the PA through the lenses of peace, not merely as an ethereal value, but as a right with practical implications. For instance, the Court might open a window to develop a new understanding of factual scenarios for constitutional interpretation: peace, war and transition. As a result, the Court could place bills, statutes and decrees in the framework of transition where, the right to peace, understood as an absence of armed conflict and as a founding requirement to the enjoyment of other rights, should affect the presumption of constitutionality and the scrutiny standards. For the moment, however, the risk is that by ignoring the legal implications of a transition on the grounds of defending the Constitution, the Court might paradoxically produce an environment that could lead to the demise of the 1991 Constitution by undermining its core promise of peace.
Suggested citation: Antonio Barreto-Rozo & Jorge González-Jácome, The Colombian Constitutional Court at the Crossroads of Peace, Int’l J. Const. L. Blog, Aug. 25, 2017, at: http://www.iconnectblog.com/2017/08/the-colombian-constitutional-court-at-the-crossroads-of-peace/
[1] The special procedure established that the bills of law implementing the PA could not be altered by Congress, unless it was in accordance to the text of the PA and was previously authorized by the government. Additionally, these bills of laws could not be voted on an article by article basis –which could lead to the demise of some provisions and the constitutionality of others–, but as a whole. Either the whole bill was approved or rejected. The Court believed that this procedure altered the democratic principles of the 1991 Constitution. See Decision C-332/2017.
[2] Robert Karl, Forgotten Peace. Reform, Violence and the Making of Contemporary Colombia (Berkeley: University of California Press, 2017): 113.
[3] Julieta Lemaitre-Ripoll, La Paz en Cuestión. (Bogotá: Ediciones Uniandes, 2011).
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