The Colombian Constitutional Court Rules that the Peace Agreement is Mandatory for Three Presidential Terms

–Gonzalo Ramírez-Cleves, Externado University, Bogotá

On October 11, the Colombian Constitutional Court issued an important decision that will help to stabilize the peace agreement between the government and the FARC-EP guerrilla group, while maintaining a key role for constitutional supervision over the process. In decision C-630 of 2017, the Court reviewed a recent constitutional amendment – Legislative Act 2 of 2017 – that established a transitional article of the 1991 Colombian Constitution.[1] This transitional article indicates that the contents of the Final Peace Agreement corresponding to norms of international humanitarian law, fundamental rights, and international human right law, will be parameters of interpretation and reference of validity of laws that will be implemented in order to develop the final agreement. Likewise, it established that state institutions have the obligation to comply in good faith with what is established in the agreement and that their interpretations and actions “must be consistent” with the agreement. Finally, it stated that compliance with this transitional constitutional provision would be mandatory until the end of three complete presidential periods after the signing of the final agreement, and thus until 2030

The ruling, which was unanimous (9-0), made some interpretations of the content of the reform, which it considered necessary in order to ensure the constitutionality of these changes. Thus, it was determined that the term “validity” refers to the connectedness of the rules and laws of implementation with the Final Agreement, as well as its concordance with the purposes of the Agreement.

On the other hand, with respect to the requirement that the interpretations and actions of state authorities “must be consistent” with the Final Agreement, the Court explained that this “imposes on the organs and authorities of the State compliance in good faith with the contents and purposes of the Final Agreement, which, within the scope of their respective jurisdictions, enjoy a margin of appreciation in order to choose the most appropriate means for doing so, within the framework of the agreement and under the principle of progressivity.” Finally, in reference to the text stating that the transitional article governs “until the end of the three presidential periods after the signing of the final agreement,” the Court ruled that this article incorporates a “principle of stability and security that is deferential to the purposes of the agreement.”

With this decision the Court resolved one of the most important aspects related to the constitutional reforms that have been approved for the implementation of the peace agreement. The decision emphasizes that the peace agreement has a normative character and can be a parameter of interpretation and reference of development and validity for the norms and laws that will be implemented. The decision also makes it clear that, in order to avoid the replacement of the principles of separation of powers, supremacy of the Constitution, peace, and democracy, the other public powers, including the Government and the Congress, should develop the agreements to the greatest extent possible following the principle of progressivity, and that they have a margin of appreciation to doing so.

The decision finally upheld the article which states that the peace agreement must be mandatory for three complete presidential periods after the signing of the peace agreement, which is to say until 2030. This decision therefore implies that the presidents who are elected in the next 12 years cannot reform substantial aspects related to the peace agreement, and could perhaps even be forced to further develop the agreement.

This decision constitutes an advance in the implementation and development of the peace agreement, and will help provide needed stability. But the Court also emphasized that the agreement is only a parameter of validity under the framework of the Constitution, and it stated that in order to maintain the supremacy of the Constitution, the Constitutional Court must verify in each case whether the peace agreement, implemented through constitutional and legal reforms, is harmonized with it. The decision is thus a valuable reminder of the need for the peace process to remain consistent with core constitutional values, and the difficult task Colombia continues to face in balancing peace with other constitutional values.

Suggested citation: Gonzalo Ramírez-Cleves, The Colombian Constitutional Court Rules that the Peace Agreement is Mandatory for Three Presidential Terms, Oct. 26, 2017, at: http://www.iconnectblog.com/2017/10/the-colombian-constitutional-court-rules-that-the-peace-agreement-is-mandatory-for-three-presidential-terms/

[1] The Colombian Constitutional Court now has an established “substitution of the constitution” doctrine. This is a variant of an unconstitutional constitutional amendment doctrine under which the Court will determine whether a given constitutional change was a proper amendment or instead a disguised constitutional replacement that should be struck down because it replaces core constitutional principles.