The Multicultural Constitution Daniel Bonilla Chapter Two The National Constitutional Assembly, the 1991 Constitution and the Tension Between Cultural Unity and Cultural Difference In the previous chapter, I analyzed Taylor, Kymlicka and Tully’s proposals to recognize and accommodate cultural diversity. I argued that their views present some theoretical instruments that are useful for understanding the origins and dynamics of the contemporary debate on how the state should recognize and accommodate cultural difference. Taylor’s genealogical analysis of the politics of recognition, Tully’s examination of the homogenizing character of the categories that define modern constitutionalism, and Kymlicka’s reflection on the connection between culture and freedom, for example, are tools that no doubt help us to comprehend the main components of the contemporary political debate about the relationship that the state should have with the cultural communities coexisting within its boundaries. Yet, in the previous chapter I claimed as well that the normative proposals offered by these three authors ultimately fail to recognize and accommodate cultural diversity and to move beyond conflicts among liberal communities. Taylor, Kymlicka and Tully’s political models, I argued, are trapped by their commitment to liberal values. The only cultural communities that these authors’ views can recognize and accommodate are those already committed to individual rights and democratic values. For these philosophers, illiberal cultures should be liberalized and hybrid communities should always give priority to the liberal elements of their traditions. For them, the only cultural differences that ought to be recognized are those remaining after all cultures have converted to the dominant political perspective of our time: liberalism. In this chapter, I will continue the analysis of the tension between cultural difference and cultural unity that cuts across the work of Taylor, Kymlicka and Tully. Yet, the precise object of study will vary. From political philosophy I will turn to constitutional law; more precisely, to the constitutional framework that governs intercultural relations in Colombia. I will examine the origin and content of the projects on multicultural issues presented during the Constitutional Assembly. From these projects emerged the tension between cultural diversity and cultural unity within the 1991 Constitution as well as the basic components that structure this conflict of values. In the first section of this chapter, I will present the political and social situation that motivated Colombians to convene a Constitutional Assembly to restructure the basic institutions of the country and the way this political and social situation influenced the Assembly’s debate about multicultural issues. The objective of this section is not to offer an in depth account of the origins of the Constitutional Assembly. Its aim is to present the political and social context in which the Assembly’s decisions about how to regulate intercultural relations were taken. In the second section of this chapter, I will examine the reform proposals presented by Francisco Rojas Birry, Lorenzo Muelas, and Alfonso Peña to the Constitutional Assembly. The reform projects of these three Indian representatives framed and guided the Assembly’s discussion about how to recognize and accommodate cultural difference. I will argue that the projects presented by these three delegates to the Constitutional Assembly pull in two opposite directions: equality and political unity, on the one hand, and difference and political autonomy, on the other. I will also argue that the projects presented by Rojas Birry, Muelas and Peña do not offer any coherent view of how to solve this conflict of values. These projects sometimes demand that political autonomy and difference be privileged over political unity and equality. Yet, at other times these projects adopt the opposite principle, demanding that the latter be prioritized over the former. The principles simply conflict. No compromise is offered; no allocation of jurisdictions for the priority of each principle is presented. Practice is as conflicted as philosophy. However, at the same time, practice makes important contributions to philosophy. On the one hand, the NCA’s proposals and discussions on multicultural issues emphasize that history should be taken into account in order to articulate plausible normative frameworks for managing intercultural relations. In particular, the NCA’s proposals and debates call attention to the legacy of injustices committed against cultural minorities; these injustices, the Colombian constitutional process clearly shows, should be addressed if minority groups are to be justly recognized and accommodated. On the other hand, the Colombian constitutional process makes explicit the precise theoretical characteristics and practical challenges generated by the two main components of the tension between liberalism and cultural diversity that cut across the proposals of philosophers like Kymlicka, Taylor, and Tully. First, it shows the basic structure of the tension between individual rights and cultural difference. Second, it evinces the basic configuration of the tension between political unity and cultural minorities’ self-government rights. These contributions open up paths that political philosophy should follow in order to answer adequately the theoretical and practical questions generated by cultural diversity. In the third and last section, I will present the values and ideals that compose the constitutional tension and will make explicit how the conflict between cultural diversity and cultural unity that cuts across the reform projects of Rojas Birry, Muelas, and Peña was reproduced in the 1991 Constitution. As I will ague in the next chapter, this same conflict has been perpetuated in the jurisprudence of the Colombian Constitutional Court. The Origins of the National Constitutional Assembly The creation of the Constitutional National Assembly (NCA) in 1990 was intended to confront a profound political crisis in Colombia. This crisis was caused primarily by the state’s failure to control the pervasive violence affecting the country. That failure, in turn, pointed to a need to transform a corrupt, centralized, exclusionary, and inefficient political system. There was a broad agreement among politicians, academics, activists and common citizens that a radical change in the institutional organization of the state, including the way in which power was distributed and exercised, was needed to respond to the widespread violence generated by drug lords, guerrilla groups, and paramilitary organizations.1 This radical institutional transformation, it was widely thought in the country, was needed to create an open, efficacious, and decentralized political system where the interests of all citizens would be represented.2 Violence has been part of Colombia’s political and social life for a good part of the twentieth century. Yet, during the 1980’s, the level of violence related to political competition and drug trafficking increased notably.3 Indeed, it started to threaten the most basic rights and freedoms of the majority of Colombians. During this period, the level of violence produced by drug cartels intensified dramatically.4 In part, this was a consequence of the Betancur (1982–1986) and Barco governments’ (1986–1990) legal and military actions against the drug lords. The drug cartels responded to these actions with the continuous assassinations of political and social 11 This wide agreement was condensed in the justifications that the Barco government gave to the failed 1988 Constitutional reform it presented to Congress, “The crisis of institutional legitimacy, the lack of civic participation and the system’s deficiencies have made the realization of dogmatic and structural changes of considerable magnitude inescapable.” Exposición de motivos del proyecto gubernamental de reforma constitucional [Justification of the Government’s Project of Constitutional Reform], in Virgilio Barco, Reforma Constitucional–Documentos 9 (Presidencia de la República 1988). 2 2 For the antecedents of the NCA see; John Dugas, El desarrollo de la Asamblea Nacional Constituyente [The Development of the National Constitutional Assembly], in La Constitución de 1991: ¿un pacto político viable? (John Dugas comp., Departamento de Ciencia Política, Universidad de los Andes 1993); John Dugas, La Constitución Política de 1991: ¿Un pacto político viable? [The Political Constitution of 1991: A Viable Political Pact?], in Id.; John Dugas, Rubén Sánchez & Elizabeth Úngar, La Asamblea Nacional Constituyente, expresión de una voluntad general [The National Constitutional Assembly, the Expression of the General Will], in Los Nuevos Retos Electorales-Colombia 1990: Antesala del Cambio (Rubén Sánchez David ed., Universidad de los Andes-CEREC 1991); Jaime Buenahora Febres-Cordero, El Proceso Constituyente: De la propuesta estudiantil a la quiebra del bipartidismo [The Constitution’s Creation Process: From the Students’ Proposal to the Breaking of Bipartidism] (Cámara de Representantes – Pontificia Universidad Javeriana, Programa de Estudios Politicos (1991); Luis Alberto Restrepo, Asamblea Nacional Constituyente en Colombia: ¿Concluirá por fin el Frente Nacional?[National Constitutional Assembly in Colombia: Will the National Front Finally be Over?], Análisis Político No. 12 (1991). 33 The number of murders grew from 36 for every 100.000 inhabitants