17 Lessons of the Colombian Constitutional Reform of 1991 Toward the Securing of Peace and Reconciliation?

Donald T. Fox, Gustavo Gallón-Giraldo, and Anne Stetson

he idea that a political constitution The situation of America is so singular and so embodies a society’s deepest level of horrible that it is not possible for anyone to consent is ancient in Western civili- hope to conserve order for a long period, not even in a city. Never have I considered a danger zation. In The Laws, Plato defined a consti- so universal as now menaces the Americans; I Ttution as a framework that had to be built express this badly; posterity never saw a scene before a society’s laws could be authorita- as frightening as America offers, more for the tively drafted and promulgated. future than for the present because where has The polestar of constitutionalism as a anyone imagined an entire people to fall into a 1 © Copyrightmeans of securing democratic by government the Endowmentfrenzy and devour its own race as cannibals? of has guided Latin America since 1811, shortly The history of tragically dem- after the wars of independence began. Simón the Instituteonstrates Bolívar’s fears,of as Peacethe entire nine- Bolívar, creator of the short-lived Gran Co- teenth century was marked by civil wars lombia, convened a constitutional assembly interrupted by sporadic periods of relative in 1819 and later drafted a constitution of 151 articles for Bolivia. Some of his early peace. That said, a gradual solidification of ideas, such as a national chamber of civic democracy also characterizes Colombia, virtue to direct morals and punish vice, were which possesses one of the oldest democra- unfeasible, but his constitutional thoughts cies in Latin America. On a political level, were presciently directed at curbing anar- the competing ideologies of liberal and con- chy and violence among deeply antagonis- servative were embodied in parties fighting tic peoples and at developing a consensual for control of the central government and framework for government. While dying in regional economies. The military defeat of exile, he recognized the quixotic nature of his liberal forces in 1885 garnered conservative life’s ambition; about the region that he had control and ushered in the nearly fifty-year sought to unify, he prophesied that period of so-called Conservative hegemony.

467 468 Donald T. Fox, Gustavo Gallón-Giraldo, and Anne Stetson

Among its first acts, the conservative govern- Popular protest against the Conservative ment abolished the federal constitution of hegemony increased in the late 1920s, es- 1863, promulgated under the auspices of the pecially after armed forces in Bogotá killed Liberal Party, and adopted the authoritarian two students and the Army massacred work- constitution of 1886. This iteration of the ers from the United Fruit Company in Colombian constitution placed the govern- 1928. The Liberal Party won the 1930 elec- ment under the firm control of the president, tions and inaugurated a sixteen-year period allowing him to suspend constitutional rules known as the Liberal Republic. A second and rights by frequently declaring a state of reform of the constitution of 1886, adopted emergency (estado de sitio), as would occur in 1936, attempted to introduce some ele- throughout the late nineteenth and twenti- ments of a welfare state, such as government eth centuries. Declaring a state of emergency intervention in the economy, and diminished was an exceptionally grave situation for the the constitutionally granted influence of the political and juridical order of the nation, as, over public institutions and apart from suspending constitutional rights, society. it permitted delegation of extraordinary In 1945, a third reform of the consti­ faculties to the military. The constitution of tution of 1886 sought to modernize the 1991 would add the power to invoke el estado state’s administrative organization, though de comoción interior, a domestic uprising or the Conservative Party recovered power with situation of violent tumult. the 1946 presidential election of Mariano The explosive growth of coffee cultivation Ospina Pérez. Liberals had obtained more led to the development of regional econo- votes, but were divided between two candi- mies; growth of the oil industry and foreign dates. One of them was Jorge Eliécer Gaitán, investment led to prosperity, but the wealth leader of a liberal faction called the Union of was not shared with the majority of the pop- the Revolutionary Left. As he obtained the ulation, nor were those who held it enlight- larger percentage of the vote between the two ened enough to invest in extending efficient liberal candidates, he became the leader of government outside the major cities. As a re- the party and headed the opposition against sult of discontent among the poor and of the the new Conservative government. Gaitán ©weak Copyright state, the violence continued. by Between the was murderedEndowment on April 9, 1948, and his deathof 1899 and 1902, the Thousand Days’ War be- opened a new ten-year period of violence be- came the longest and cruelest civil war the tween Liberals and Conservatives known as countrythe hadUnited yet experienced. States The conflict la Instituteviolencia, a bit of a misnomer, of Peaceas the in- ended when the government defeated rebel crease in political violence had begun some forces and imposed an armistice. years before. Gaitán himself had addressed In 1910, the first significant reform of the growing violence in his most well-known the constitution of 1886 was adopted in re- speeches. sponse to the forced departure of President The year 1950 witnessed the inauguration Rafael Reyes, who had assumed dictatorial of a new Conservative government, with Lau- powers. The constitutional assembly of 1910 reano Gómez as president. The Liberal Party introduced some moderating changes to did not participate in the elections in protest the constitution of 1886, such as abolishing against the murder of its candidate, Camilo the death penalty and inserting the judicial Echandía, during a parade. The country had power of the Supreme Court to review the in fact been under a state of emergency since constitutionality of laws. November 9, 1949, when President Ospina Framing the State in Times of Transition 469

Pérez had closed down the Congress. New cleus were added groups of campesinos trying President Gómez organized a constitutional to organize protests against landowners. assembly to provide some legitimacy to his In 1970, The Movement of April 19 government and promote a new constitution (M-19), an urban guerilla group, was orga- based on a more authoritarian model, in- nized in reaction to alleged fraud in the May spired by the regimes of Franco and Hitler. 19, 1970, elections. The presidential contest In the face of growing violence, military that year was won by the conservative rep- chief declared that resentative of the National Front, Misael “the principles of Christ and Bolívar” re- Pastrana, who ran against the former dictator, quired him to take charge, which he did in General Rojas Pinilla. General Pinilla had June 1953. The dictatorship lasted until the the support of a growing number of people political parties, reacting to their exclusion who felt politically excluded by the National from power, created a coalition that forced Front’s institutions. Later, in 1984, the M-19 Rojas Pinilla from office in May 1957. The started a peace process with the conservative Liberal and Conservative parties forged a government of President ; deal to reduce the political violence between other guerrilla groups, such as the FARC and them by rotating control of the presidency, EPL, did so, as well. The government broke thus establishing the parties’ dual hegemony. off the process in early 1985. That same year, This deal, the Covenant of the National the M-19 seized the Palace of Justice, which Front, was approved for a twelve-year pe- housed the Supreme Court, in an effort to riod as a constitutional reform by plebiscite force the government to reinitiate the peace on December 1, 1957. The system of shared process. Rather than negotiate, the Betancur hegemony proved so satisfactory to the prin- government consented to a full-scale military cipal parties that the system of alternating attack that resulted in the destruction of the control and proportionate participation of building and the deaths of about 100 people, each party was followed until President Vir- including twelve judges.2 Hostilities increased gilio Barco abandoned it in 1982. with the termination of the peace process. However, new sources of violence arose None of the armed groups would join in a that the political truce could not contain, common front, although some of them cre- © Copyrightas the disparities in economic by and politicalthe Endowmentated the Coordinadora Guerrillera Simónof Bolí - power provided rich fodder for the explo- var in the 1980s, a body that, in practice, did sive growth of the guerrilla movement. In not act in a very coordinated way. the1963, United student activists and States Catholic radicals, Institute In addition to theof violence Peace spawned by including Camilo Torres, a priest, founded the guerrilla groups, the United Self-Defense the National Liberation Army (ELN), hop- Force of Colombia (AUC), a loosely affiliated ing to emulate Castro’s revolution in Cuba. group of paramilitaries formed to oppose The Popular Liberation Army (EPL) broke the guerrilla groups, directed their attacks away from the traditional Communist Party largely against rural laborers. The AUC was and declared itself to be the armed faction protected by the Colombian army as an ally of the Marxist-Leninist Party of Colombia. in the antiguerilla struggle. But the organi- In 1964, the Revolutionary Armed Forces of zation’s brutality against peasants suspected Colombia (FARC) formed around a group of sympathizing with the guerillas and its of guerrillas formerly established by the Lib- practice of kidnapping civilians for ransom, eral Party that refused to abandon armed even in neighboring , led most struggle in return for amnesty. To this nu- to consider the paramilitaries as 470 Donald T. Fox, Gustavo Gallón-Giraldo, and Anne Stetson

criminals. Meanwhile, narcotics traffickers, endum text that became known as the sép- whose annual income since the mid-1980s tima papeleta, or “seventh ballot,” given that is estimated at $2.5 billion to $3 billion, have the election already involved six ballots. The paid both the guerilla groups and the AUC students pledged to actively support demo- for protection and have invested in many cratic institutions and to bring about respect sectors of the economy. The corruption, pub- for human rights. Out of this effort grew the lic and private, generated by these vast sums so-called mesas de trabajo (working groups) of money is a source of shame that many ele- that functioned through December 1989 in ments of society deprecate strongly. an effort to analyze possibilities for judicial Successive governments made limited ef- reform and promoting the séptima papeleta. forts to end guerilla violence peaceably. Until The “students’ seventh vote” (séptima pa- the M-19 abandoned armed struggle to cre- peleta de los estudiantes) was so named by an- ate a political party that participated in the other periodical, El Tiempo, which also sup- 1991 constitutional assembly, however, there ported the text of the referendum. The six was no real effort to change the structures of formal issues in the March 1990 elections power through the political process.3 dealt with the selection of mayors, senators, and representatives to the municipalities, regional chambers, and House of Represen- Broadening Public Participation tatives. As prevailing electoral rules prohib- through a Constitutional Assembly ited the inclusion of an issue on the ballot The movement to convene a constitutional by popular request, the authorities did not assembly (constituyente) composed of the formally include the séptima papeleta in the broadest range of social and political repre- March 11 elections. Instead, the séptima sentation possible commenced in 1981 with papeleta was distributed to voters through the Second National Forum for Human the newspapers. At the time, voting was not Rights, attended by a diverse group repre- performed by filling in a printed ballot, but senting a range of views across the political by depositing paper votes in the ballot box. spectrum. The vision for the assembly sought This permitted the informal casting of votes to provide a constitutional means to over- on the proposal to convene a constitutional ©come Copyright the political exclusion that byhad char the- assembly. Endowment The overwhelming number of af- acterized Colombia’s history. A National firmative votes—five million—cast in the Commission for a constitutional assembly séptima papeleta led then-president Virgilio wasthe created United in 1987 and included States represen- Barco Institute to issue a decree, of under Peace state-of- tatives of the most powerful trade unions emergency powers, to pose the issue for- and non-governmental organizations, and mally in the presidential election on May 27, some political leaders who formed a Na- 1990. tional Committee of Unity. Under the existing constitution and the In December 1989, the National Com- traditional interpretation of it that had pre- mission proposed using the elections of vailed since 1957, Congress held the exclu- March 11, 1990, to hold a referendum as to sive power to reform the constitution (Arti- whether a constitutional assembly should be cle 218). Accordingly, the constitutionality of held. Notably, the newspaper El Espectador President Barco’s decree, issued as it was pur- backed the initiative. A student-led move- suant to his constitutionally granted state-of- ment, organized after the murder of Liberal emergency powers, was subject to review by leader and presidential candidate Luis Car- the Supreme Court of Justice. Although the los Galán in August 1989, proposed a refer- presidential state-of-emergency powers have Framing the State in Times of Transition 471

been justly criticized for their undemocratic vided for preparatory commissions repre- nature and potential for enabling repressive senting diverse political, social, and regional action by the executive branch, in this case interests, and set forth the necessary organi- President Barco sought to call for a demo- zational details. In addition, the agreement cratic reform of the constitution for the very called for the popular election of delegates to purpose of restoring public order to Colom- the assembly on December 8, 1990. bia and strengthening the country’s demo- Under the agreement, seventy members cratic institutions.4 The Supreme Court ulti- of the constitutional assembly were to be mately upheld the decree principally on the elected nationally by means of electoral lists grounds of popular sovereignty. The court to assure representation of different politi- considered that according to general prin- cal, social, and regional groups. In addition, ciples of Colombian constitutional law, gov- two seats were reserved for guerrilla groups, ernance of the state derives from the people’s which would agree to demobilize. The par- will. Consequently, if the Colombian people ticipation of the M-19, which received many decide to reform their constitution, they are votes in the presidential election of May 27, free to do so without restraint. The court 1990, was considered very significant, as was reasoned that popular demand for reforms the participation of the EPL, Partido Revo- was evidence that existing political organs lucionario de los Trabajadores (PRT; another were incapable of achieving them. When the guerrilla group), and Quintin Lame, an in- Supreme Court boldly sidestepped the con- digenous group. The FARC and ELN, how- stitutional restriction of reform to legislative ever, refused all offers to participate in this action, its jurisprudential and philosophical process. The agreement provided further that reasoning was based on the potential of the sitting congressmen were ineligible to serve constitutional assembly to achieve peace. in the assembly. President Gaviria incorpo- The referendum demonstrated over- rated the details of the agreement into a de- whelming support for constitutional reform: cree, Decreto numero 1926, issued under his 88 percent of voters favored convening a state-of-emergency powers on August 24, constitutional assembly to “strengthen par- 1990, and upheld by the Supreme Court. ticipatory democracy.” To push the popularly Decreto numero 1926 put careful limits © Copyrightmandated reform forward, byCésar Gaviria,the Endowmenton the constitutional assembly. It ofcalled for the new Liberal Party president, whose gov- the assembly to begin work on February 5, ernment was inaugurated on August 7, 1990, 1990, and to meet for 150 days (Article 3). theconferred United with representatives States of the other InstituteThe assembly was of mandated Peace to approve a principal political parties, which had col- single text containing the constitutional re- lectively received 96 percent of the popular form within the duration of its sessions and vote in the May elections. These parties— was required to act within limits set not only including the Movement of National Sal- by the decree incorporating the vote in the vation, a faction of the Conservative Party; popular referendum but also by the Political the Democratic Alliance M-19, which had Agreement of the constitutional assembly participated for the first time in the elec- entered into by leaders of the principal po- tions after signing a peace agreement with litical parties and the M-19. Barco’s government; and the Social Conser- The government set up 1,580 working vative Party—entered into an agreement on groups throughout the country to receive the mechanics of the constitutional assem- proposals from diverse social and political bly. This agreement called for the assembly groups, ranging from academics and lawyers to meet for a limited number of days, pro- to laborers and farmers. Over 100,000 pro- 472 Donald T. Fox, Gustavo Gallón-Giraldo, and Anne Stetson

posals for constitutional reform were submit- would have a national rather than a localized ted for review by the working groups, with mandate. As a result, the constitution they the logistical support of the faculty of the would develop—which would require national Escuela Superior of Public Administration. rather than local consensus building—would Initially, the working groups were con- have nationwide legitimacy. Given the task of ducted by student leaders between Septem- developing a new constitution for the entire ber and November 1989 to analyze how to country, this was a significant step. Finally, control the generalized violence through ju- for the first time in the history of Colombian ridical means. Decree numero 1926 promoted elections, public finances supported the cam- the preparatory work of such groups, repre- paigns of the constituyente candidates. This, senting social organizations throughout the too, had a democratizing effect by improving country, universities, and indigenous com- the chances of election for a broader group of munities. The groups’ work was coordinated candidates than would otherwise have been by the municipalities in which they were cre- possible. As a result, the election produced ated, and they could call on the assistance of an assembly with a more democratic and na- commissions of experts set up by the presi- tionally spirited character than had previously dent. Thus, when the constitutional assembly been true for the national legislature; over 35 was organized and established commissions percent of the votes went to groups other to consider reform proposals, they had the than the traditional parties (i.e., Liberals and benefit of significant preparatory work and Conservatives), an anomaly in the history of the widespread public debate that the pro- Colombian elections up to that point. posal had received. Perhaps the new electoral rules contrib- uted to the relatively low turnout—26 per- cent—for the December 9, 1990, elections. Democratic Representation Nevertheless, independent or new political in the Constitution-Making Process movements obtained a significant percentage The campaign for seats in the assembly was of the vote: The Democratic Alliance–M19 largely waged by established political groups, received 27.14 percent, followed by Indige- with opportunities created through new elec- nous with 2.85 percent, Patriotic Union with ©toral Copyrightrules for independent groups byto partici the- 2.85 Endowmentpercent, and Christians or Evangelists of pate. The new electoral rules were designed to (non-Catholics) with 2.85 percent, for a to- modernize and democratize the old electoral tal of 35.69 percent of the vote. Never be- system,the creating United the most open States and egalitar- fore Institute had independent forces of obtained Peace more ian process in Colombian history. Private vot- than 4 percent of votes in congressional elec- ing booths were provided for the first time, tions. Having one-third of the votes for the and official ballots replaced the old system in constitutional assembly, even if Liberals and which each candidate printed and distributed Conservatives gained the majority of votes, his or her own ballots. A national vote was indicated significant electoral support for taken to facilitate meaningful participation by independent political forces. Moreover, rep- new parties, minorities, and those unaffili- resentatives of minority groups won seven ated with a political party. In the past, depart- seats in the constitutional assembly.5 Of mental votes had been taken to elect congres- these seven, three were Colombian Indians, sional representatives, giving rise to cronyism representing six hundred thousand of their within the individual departments and favor- people.6 ing established parties. Significantly, the na- By government decree issued pursuant to tionwide vote also assured that those elected the agreement President Gaviria had estab- Framing the State in Times of Transition 473

Table 17.1 Final Composition of Uribe (Liberal Party), and Alvaro Gómez Constitutional Assembly in Colombia Hurtado (Movement of National Salvation, Percent a faction of the Conservative Party). After Movement Seats of total adopting regulations to govern its procedures Liberals 25 33.78 and time limits, the assembly elected a Codi- Democratic Alliance–M-19 19 25.67 fication Committee of lawyers representing National Salvation (faction of Conservative Party) 11 14.86 all political groups, with technical assistance Social Conservative Party 5 6.75 provided by a Colombian institute, Instituto Independent Conservatives 4 5.40 Caro y Cuervo. Indigenous 2 2.70 The constituyente invited the govern- Patriotic Union 2 2.70 ment, Senate, House of Representatives, Su- Christians 2 2.70 preme Court, and Council of State to submit EPL (by decree) 2 2.70 PRT (by decree) 1 1.35 reform proposals, and the Gaviria adminis- MAQL 1 1.35 tration submitted a full reform proposal Total 74 100 the day after the assembly convened. Non- governmental organizations, universities, and guerrilla groups involved in the peace pro- lished to govern the workings of the consti- cess also presented proposals, which did not tuyente, seats were given to two EPL repre- carry the weight of official proposals, but sentatives, one PRT representative, and one were taken under serious consideration by representative (without vote) of the Quintín the constituyente. In all, 131 official and 28 Lame Armed Movement (MAQL), an or- other proposals for reform were submitted. ganization of indigenous people, after those Many of the proposals that the non- guerilla organizations signed a peace accord governmental organizations generated re- with the government. The constitutional as- flected their particular mandates. For ex- sembly also made new offers to the FARC ample, the Colombian Workers’ Federation and ELN later, but those groups refused to proposed reforms to the constitution’s ar- join. As a result of both the elections and ticulation of social and labor rights, and the the appointments made by decree, the final Colombian Association of Retired Police Of- © Copyrightcomposition of the assembly by was as thefollows Endowmentficers addressed the constitution’s of treatment in Table 17.1. of the national police force. Others, however, The multiparty character of the assem- ranged more broadly in subject, such as the thebly markedUnited was a bold departureStates from the Instituteproposal submitted byof the Foundation Peace for the ­entrenched bipartisanship of Colombian pol- Future of Colombia and universities that par- itics in distributing the greatest number of ticipated in this step of the reform process. seats among three parties, as the recently To deal with diverse reform topics, the as- demilitarized M-19 party stood side by side sembly organized five permanent commis- with the Liberal and Conservative parties. sions. The First Commission focused on the study of principles, rights, obligations, guar- antees, and fundamental liberties; mecha- Structure of the Process nisms and institutions of democratic partici- The constitutional assembly convened on pation, the electoral system, political parties, February 5, 1991, and elected a collective and the status of the opposition; and mecha- presidency composed of the leaders of the nisms for constitutional reform. The Second three principal groups: Antonio Navarro Wolf Commission was responsible for studying (Democratic Alliance M-19), Horacio Serpa territorial regulation and regional and local 474 Donald T. Fox, Gustavo Gallón-Giraldo, and Anne Stetson

autonomy. The Third Commission was dedi- constitutional revision inapplicable, and that cated to the study of reforms to the structure any regulations that the assembly adopted of the state, Congress, the police force, the did not constitute administrative acts subject state-of-emergency regime, and international to Council of State review. relations. The Fourth Commission studied Second, as the Third Commission neared the administration of justice, principles of consensus on abolishing existing congres- criminal law and due process, and the func- sional subsidies and irregularities, members tion of the Inspector General (Public Minis- of Congress, fearful of their political future, try). The Fifth Commission was mandated to undertook a campaign against the assembly. study economic, social, ecological, and fiscal Years of abuse by the political class in Con- issues, as well as public services. gress had led to public clamor for reform of The commissions’ decisions were not the legislature, and to give these reforms the binding, but were brought to the full assem- greatest chance for success, the constituyente, bly for debate. The specific function of the with President Gaviria’s agreement, ordered commissions was to conduct a comparative Congress to be dissolved on July 5, 1991, study of the proposals within their respec- the day after adopting the new constitution, tive areas of focus. For a proposed provision and called for new congressional elections on to gain approval as part of the new constitu- October 27, 1991. The assembly established a tion, majority approval was required in both special legislative commission, called el Con- of two plenary debates. At the outset, the gresito (the little Congress), proportionately idea was to reform the existing constitution, representing the parties participating in the but it became clear that the reform could assembly. The assembly authorized el Con- best be accomplished not by amending the gresito to promulgate laws related to imple- old constitution, but rather by proclaiming a menting the new constitution. This commis- new one. The commissions produced a col- sion of thirty-six leaders met between July 15 lective 560 articles for such a new constitu- and October 4, and again from November 18 tion, but in the first plenary debate, many of to November 30. Pursuant to the new con- these were seen to be repetitive or inconsis- stitution (transitional articles 6–8), el Con- tent. Consequently, the number was reduced gresito held the power to approve by majority ©to aboutCopyright 400 articles, following by which thethe presidential Endowment decrees issued during the of in- Codification Commission produced a first terim, veto any decrees deemed overly broad, draft of the new constitution. This draft was and propose legislation (proyectos de ley) to be submittedthe Unitedfor discussion at the States second ple- submitted Institute to the newly elected of Congress Peace that nary debate. A final grammatical revision would enter office on December 1, 1991. by a committee on style refined the consti- Unfortunately, the disqualification of tution’s text. The assembly adopted the new members of the constitutional assembly to constitution on July 4, 1991. run in the new congressional elections led to The constituyente overcame two major a reelection of practically all of the old politi- obstacles in the course of its work. First, the cal class. The deal worked out with President Council of State, the principal administra- Gaviria had the effect of marginalizing the tive tribunal under the existing constitution, Movement of National Salvation (MSN), sought to impose its administrative authority a faction of the Conservative Party, and on the assembly; to forestall this interven- the M19, which had been most influential tion, the assembly adopted a resolution de- in the constitutional assembly. The victory claring that the referendum had made provi- of the old political class was probably due sions of the existing constitution relating to to the naïveté of their opponents. However, Framing the State in Times of Transition 475

the new electoral rules did secure more seats concepts of goodness, honesty and truth. And to for the new political parties than would have complete our wishes—that we Colombians will value anew the meaning of peace and the spiri- been achievable under the old rules, includ- tual condition of mankind. There, standing tall, ing seats for indigenous peoples. are the possibilities of preserving human dignity The new constitution was never subjected forever.7 to popular ratification. The preexisting con- stitution had not foreseen a successor or contemplated a mechanism for ratifying Timing of the Reforms one. Rather, in accordance with President Gaviria seized the momentum of success- Gaviria’s decree of August 24, 1990, con- ful peace negotiations with the M-19 and a cerning the powers of the constitutional as- window of optimism throughout the coun- sembly, the assembly itself was empowered try to carry forward a bold constitutional to proclaim a new constitution, as it did on reform project to open the political process July 4, 1991, subject to affirmation by the to a more inclusive group of participants and Supreme Court of Justice that the reform strengthen the state’s capacity to secure dem- had been conducted in conformity with the ocratic order. However, the absence of the vote taken by the Colombian people on De- FARC and ELN in the process has proven cember 9, 1990, when the assembly’s mem- over time to be a definitive blow to the new bers had been elected. Upon proclaiming constitution’s capacity to achieve the peace the new charter, Alvaro Gomez Hurtado, that was among its goals. With impeccable the elected president of the constitutional timing, on December 9, 1990, the day of the assembly, exhorted: elections for the constitutional assembly, the government carried out a military attack on We proclaim the Constitution of Colombia. It the FARC’s headquarters, Casaverde. Casa-­ is the end of an effort. . . . We achieved it run- verde had hosted meetings between the FARC ning risks. It is a text that seeks to represent Co- and many representatives of the government, lombia, a new country that we wanted to find. Between remaining behind or pushing ahead, political parties, and society over the prior we preferred the vanguard. . . . Every Consti- months and years, all aimed at exploring the tution is a beginning. Here, today something possibility of a negotiated peace. As a result, © Copyrightis born. . . . We hope that new bygenerations the will EndowmentCasaverde symbolized the hope—but of also not live in a state of corruption as that we suffer the continued failure—of a negotiated peace. today. We fulfilled our mandate to clean up the Although at that time a peace process was not theCongress. United . . . We established States bases on which Institute of Peace justice can be restored. . . . Colombia is a young formally open, the expectation, or perhaps country that has to experiment. It must experi- merely the hope, prevailed that talks would ment. It cannot limit itself to opportunities that be renewed and peace promoted through new present no danger. Dangers have come upon avenues, including the FARC’s participation us and to oppose them timorous measures will in the constitutional assembly. The attack on not suffice. We are not going to let the reform movement stagnate. This would be an injustice. Casaverde the same day that Colombians We want it to be a living organism and not a elected the members of the constitutional document for the archives. This Constitution assembly closed the assembly’s doors to the will have to be the source of all judicial and in- FARC. This mistake was deepened by the stitutional organization. But we want it to be attitude of the FARC itself, which rejected much more, that it be considered the naviga- the subsequent invitation by key members of tional chart of our nationality. . . . The Consti- tutional transformation that we proclaim today the constitutional assembly to present their has the objective of restoring our moral values. proposals. In any case, the actions of both the We intend that there be a rebirth of the essential government and the FARC reduced the abil- 476 Donald T. Fox, Gustavo Gallón-Giraldo, and Anne Stetson

ity of the constitution of 1991 to secure peace erated as technical support in the preparation in Colombia. of the constitution and during the assembly’s Had the government more vigorously ne- deliberations. The same agency contributed gotiated with the FARC and ELN so that to elaborating the government draft of the those groups could have been represented constitution submitted for the assembly’s in the assembly, would it and the result- consideration and, after the proclamation of ing constitution have been any more effec- the constitution, preparing bills for its leg- tive at establishing an enduring peace? The islative implementation. A final component subsequent years of efforts to negotiate a of the program publicly promoted the new peace with the guerrilla groups suggest that constitution, mainly to the legal community including FARC and ELN representation and government agencies. The dissemination would have been impossible without serious of the constitution among the population, compromises by the government, and that which included education about new con- postponing the efforts to reform the state stitutional rights and their guarantees, such would only have reduced further its capac- as the new legal vehicle of tutela (discussed ity to deal with the destructive forces that below), was developed only through a few oppose it. Furthermore, given the depth and short-term initiatives. breadth of popular support for constitutional European agencies funded a pool of na- reform, the timing of the 1991 constitution tional non-governmental organizations that was poised for success; to have gambled the joined efforts and expertise around an initia- moment away for the possibility of greater tive called Viva la ciudadania. This program success at a later date would have carried was important to the process of creating the risks and arguably diminishing returns. new constitution, as it provided a bridge be- tween the assembly and those sectors of the population linked to social and political or- Role of the International Community ganizations. Through public debates around The peace process that resulted in the proc- the country and the publication of a monthly lamation of the 1991 constitution derived paper, the project channeled proposals from from the vision of Colombian leaders and citizens and popular organizations to the ©the ColombianCopyright people, the negotiations by held the assembly, Endowment continuously updated the pubof- with the guerrilla groups during the 1980s, lic on discussions in assembly sessions, and and a long constitutional tradition. No rep- developed an education campaign after the resentativesthe United of supportive countries States or the constitution Institute was proclaimed. of However, Peace the were involved in the con- program’s impact was limited because its versations leading up to the constitutional publications did not use the mass media, and, assembly, nor did they serve as guarantors therefore, did not reach the general public. of the peace accords. However, the interna- Although no foreign technical experts tional community did provide some financial participated in or advised the assembly, sev- support to the effort, and this went toward eral came to Colombia to observe the pro- expanding the technical capabilities of the cess. Several international non-governmental government, strengthening the proactive role organizations participated in the debates, of civil society, and disseminating informa- however, and thereby enriched the discus- tion concerning the assembly’s debates and sions with proposals inspired by interna- the constitution itself. tional human rights law. For example, the To ensure the smooth running of the as- secretary general of Amnesty International sembly, a UN-funded presidential agency op- and the director of ’s Framing the State in Times of Transition 477

Americas program addressed the plenary of plenary session deliberations on the protec- the assembly, describing their concerns about tion and application of rights.8 the human rights situation in Colombia and The 1886 constitution had been - mod their views on how a modern human rights eled on the Spanish constitution, which was framework and checks on the public security in turn infused with French constitutional forces could help to reduce the high num- structures and principles. In addition, the ber of human rights violations occurring in rich intellectual tradition of legal scholarship Colombia. in Colombia informed the research of the assembly’s commissions. Among the com- mission members were some of the most Role of International and Foreign Law respected legal scholars in the country, who Undergirding the entire reform process— were familiar with the importance of study- from parting of the judicial seas to permit a ing comparative legal systems. Legal experts democratic movement to override the con- in the Gaviria administration working on the gressional lock on constitutional reform to constitutional-reform process brought their electing the members of the constitutional comparative legal knowledge and contacts assembly to formulating the provisions of with foreign administrations to the task of the constitution itself—lie the principles of presenting reform proposals to the assembly. popular sovereignty and democratic partici- Constitutional borrowing is evident in pation. Although the process itself took its the separate treatment of a carta de derechos, democratic course apart from international or bill of rights, firmly set out in the first legal theory, de facto, the emerging inter- two sections of the new constitution, which national norm of self-governance prevailed echoes French and American legal traditions. in the Colombian constitutional reform Article 88, providing for citizens’ rights for experience. protection of collective interests, derives from International law, and international hu- constitutional provisions in Brazil, , and man rights law in particular, played an im- Portugal. Establishing a human rights om- portant and explicit role in the adoption of budsman, or defensor del pueblo, was borrowed the 1991 constitution as the constituyente from the successful experience of Scandina- © Copyrightsought to secure a newly democraticby the and Endowmentvian countries. The constituyente of chose to peaceful order in Colombia. While it would adopt it with the objective of strengthening be impossible to identify any one interna- the protection of human rights in the coun- thetional United legal norm involved States in the process Institutetry. The overhaul of theof justice Peace system to shift that led to the peace settlement and the away from the European inquisitorial sys- ­consensus around the new constitution, the tem to the American prosecutorial system of international human rights instruments pro- ­justice is notable in its establishing of a pros- vided the basic standards considered by all ecutor general’s office: A government pros- parties at the time of debating the future ecutor rather than a Colombian judge would bill of rights, as well as some aspects of the be responsible for bringing charges against organization of state organs and their pow- defendants. A separate constitutional court ers. The constitutional assembly looked also was also established, following the Spanish to foreign legal systems and procedures in example (again, based on that of France) of deliberating on reforms to the Colombian charging a separate court with determining constitution. For example, the common law the constitutionality of laws and treaties is- injunction and habeus corpus actions were sued or entered into by the other branches of considered in the First Commission and in government (Article 239). 478 Donald T. Fox, Gustavo Gallón-Giraldo, and Anne Stetson

Issues of Substance them have removed from the government In the effort to secure democracy and peace the dubious distinction of being a primary for all in Colombia, the constituyente em- cause of human rights violations. braced tenets of international law throughout The 1991 constitution also established the 1991 constitution, giving international new procedures for strengthening controls human rights law superior status in cases of over executive powers, including the cre- incompatibility with domestic law. Article 93 ation of the aforementioned human rights provides that ratified treaties that recognize ombudsman (Defensor del Pueblo). The office human rights and prohibit their limitation of the Defensoría del Pueblo was established in states of emergency must be recognized alongside the attorney general’s office to in domestic law. In this effort, the assembly focus on human rights protection and pro- drew on international human rights instru- motion. To this end, the defensoría works to ments as well as a number of contemporary denounce human rights violations, promote constitutions, shown in the wording of some human rights by educating the public as to articles of the Bill of Rights and the adop- their rights and how to protect them, and de- tion of new guarantees that were not present fend those whose rights have been violated. in the old constitution. In addition, as the Article 86 of the 1991 constitution estab- international human rights treaties ratified lished the action of tutela, or writ of protec- by Colombia had been neglected, margin- tion, one of the most important mechanisms alized, or simply ignored, the constituyente for protecting fundamental rights. Through confirmed and emphasized their validity in an action of tutela, every citizen has the right domestic law (Article 93). to seek immediate judicial judgment if one The constituyente established protective of that citizen’s fundamental constitutional procedures for those rights considered fun- rights is threatened or violated by the act or damental. The 1991 constitution prohibits omission of a public authority. The remedy the suspension of those rights protected by of tutela has been widely used, and remains international treaties to which Colombia is among the significant successes of the 1991 party, including the norms of international constitution. humanitarian law, particularly in a state of A constitutional court was established to ©emergency Copyright declared by the president. by9 Inter the- adjudicate Endowment the constitutionality of laws of and national human rights law has also restrained treaties issued or entered into by the other the effects of the internal conflict in Colom- branches of government; the court may be biathe and promoted United the peace efforts States that fol- accessed Institute not only by government of officialsPeace but lowed the launch of the new constitution. By also by Colombian citizens. To prevent coun- checking executive powers, particularly emer- terreforms that might endanger the basic pil- gency powers, and those of the army and the lars of the constitution and the viability of police, the 1991 constitution’s elaboration of its efforts for peace, the assembly established human rights norms protected civilians from particularly high requirements for adopting abuses by those in power. International hu- legislation regarding human rights, the ju- manitarian law has also served as a barrier diciary, the political parties, the opposition, to the abusive use of force in Colombia. It the mechanisms of participation (defined in is true that as the hostilities have increased Article 103 as elections, plebiscites, referen- in scale, so have violations of human rights dums, consultations of the people, open town and humanitarian law. However, the consti- meetings, legislative initiatives, and revoca- tutional restrictions on the power of the state tions of official powers), and states of excep- and the new procedures for implementing tion that suspend the application of certain Framing the State in Times of Transition 479

human rights under Article 152. Congres- rillas operate and to organize a plan to as- sional legislation in these fields must be by sist those zones affected by acute violence. leyes estatuarias, which have the seriousness Although the peace process with the main of constitutional norms. The constitution guerrilla groups broke down in 1990, these also requires a referendum on constitutional powers were used to conclude negotiations amendments approved by Congress when with at least a faction of one of these groups. those amendments affect norms regulating The impact of social programs born in this human rights and their guarantees or the context, however, was very limited in terms procedures of popular participation in law- of both efficacy and extent. making activities (Article 377). The constitutional process itself played an The 1991 constitution furthered the aim important role in the Colombian peace pro- of achieving peace, both through provisions cess thanks to these provisions, which helped that specifically related to peace negotiations to win the adhesion of several former guer- and by virtue of the constitutional reform it- rilla units and representatives of indigenous self. Given that the peace settlement achieved communities. Moreover, the constitutional before the reform did not include the two reform as a whole was an attempt to resolve largest guerrilla groups, and that the hostili- the armed conflict and its causes, and to en- ties continued during the assembly’s tenure, sure peace. Most notable among the causes the constituyente included in the constitu- of conflict are the exclusion of a majority of tion a framework of provisions intended to the population from political life and access foster continued peace efforts. At the same to power, constant abuses committed by the time, the assembly ensured that the new con- military forces against the population, the stitution would provide a helpful instrument neglect of the basic needs of the poorer sec- for consolidating the peace accord already tors of the society, and the concentration of reached, and for the objective of securing a power in the hands of the executive branch. stable peace. After establishing peace as one of the main Regarding the provisions intended to fa- ends of the state and as a right and duty of all cilitate new peace talks, the most significant members of society (Preamble and Articles 2 of these sought to enable the government and 22), the constitution attempted to open © Copyrightto support and advance peace by talks. the Tran- Endowmentand democratize the political debate of and ac- sitional Article 30 authorized the national cess to power. In this regard, the constitution government to grant pardons and amnesty reformed the Congress, adopted a regime for thefor acts United committed by guerrilla States groups before Institutepolitical parties, called of for legislationPeace on the the constitutional assembly if they agreed status of the opposition, and provided for to reincorporate into civil life. As approved a number of new mechanisms for popular on June 19, 1991, this article provided that participation in political life. Against a back- these benefits would not apply to instances ground of repeated and gross violations of of atrocities, murders of defenseless persons, basic liberties, the assembly adopted a very or acts committed outside of combat. In ad- advanced bill of civil rights, including pro- dition, according to Transitional Article 12, hibitions of torture, disappearances, and the the president could designate new mem- death penalty, the right not to be detained bers of Congress from names presented by without judicial authorization, and the rights guerrilla groups engaged in a peace process. to habeas corpus and to a fair trial (Articles Transitional Articles 13 and 47 required 11–41). A charter of social, economic, and the government to improve the economic cultural rights extended more power to in- and social conditions of areas where guer- dividuals, associations, and members of cer- 480 Donald T. Fox, Gustavo Gallón-Giraldo, and Anne Stetson

tain groups—such as children, women, the FARC, which arrogantly abused the preroga- elderly, disabled, indigenous peoples, and tives accorded to them to facilitate the peace the black community—to claim attention to process. For its part, however, the government their needs in the areas of health, housing, did not make an effective effort to avoid and work, land, education, and culture (Articles punish human rights violations committed by 42–77). state agents or demand of FARC a minimum While state power in Colombia histori- respect for humanitarian law as a condition cally has been skewed toward a strong presi- for maintaining a demilitarized zone. The dency and weak legislature and judiciary, the government also failed to protect the civilian constituyente redressed this imbalance by population against the many violent actions significantly scaling back the expansive pow- carried out by paramilitary groups, often with ers of the presidency in favor of the other tolerance or complicity from public servants. two branches of a democratic government. After the peace process ended, the FARC The 1991 constitution particularly dimin- increased its kidnapping of civilians, involve- ished the extent of the president’s emergency ment in the drug business, and extortion. The powers, such that the legislature and consti- FARC also launched a campaign of threats tutional court10 now play a role in any dec- to eliminate elected mayors and destabilize laration of a state of exception from human every governmental authority. rights treaties. In addition, the constitution With about 4,000 members, the ELN op- established stricter constraints on the dura- erates mainly in northeastern Colombia. Its tion and extent of all three forms of excep- income comes mainly from ransom or pro- tion, which suspend the application of cer- tection payments, but it also participates in tain human rights when a state of emergency the drug trade. The government attempted is declared. peace negotiations with the ELN, but re- fused to grant it a zone of control as it had granted the FARC. In May 2002, due to the Subsequent Developments failure to arrive at any agreement as to the In the decade following promulgation of the procedural basis on which to structure nego- 1991 constitution, the FARC escalated its tiations, the Colombian government broke ©campaign Copyright of terror, including kidnapping,by the off theEndowment negotiations. of extortion schemes, and an unofficial tax lev- In the presidential election of 2002, ied in rural areas for protection. The group President Álvaro Uribe, a dissident Liberal, isthe estimated United to have an annual Statesincome rang- garnered Institute the support of 53of percent Peace of the ing from $200 million to $400 million, at vote (though only 25 percent of the voting least half of which comes from the illegal population turned out for the election). He drug trade. With a membership of 12,000 maintained the confidence of other dissident to 18,000, and between 9,000 and 12,000 Liberals as well as the Conservative Party, armed combatants, it is the largest and rich- repeatedly declaiming the phrase of Bolívar est in the world. In 1998, the An- that “order is the value on which liberty is drés Pastrana government launched peace based.” negotiations with the FARC, ceding control Four days after his inauguration, Uribe of a 42,000-square-kilometer safe haven in tested the constitutional limitations on his Colombia’s southeastern region. In February emergency powers. On August 11, 2002, he 2002, the negotiations collapsed with little declared a state of internal unrest under the result beyond deeply felt frustration. Much of 1991 constitution’s provisions affording him the responsibility for this failure lies with the emergency powers for ninety days, with the Framing the State in Times of Transition 481

possibility of two renewal periods. While de- the government employed Black Hawk heli- claring determination to guarantee respect copters and national police to destroy indus- for human rights, he emphasized the need trial coca plantations and laboratories. to structure democratic authority to protect Uribe has enjoyed strong public support against illegal armed groups. To regain con- for his authoritarian approach to govern- trol over the country, the Uribe government ing. On October 19, 2005, the Colombian committed to increasing the number of se- Congress amended the constitution to al- curity troops from 250,000 to 850,000 over low the president to serve two consecutive four years, while increasing defense expendi- four-year terms. On May 25, 2006, Uribe tures from 3.6 percent of GDP to 6 percent was reelected by an overwhelming 62 per- of GDP by 2006. A program was established cent of the votes cast. The electorate clearly to provide human rights training to these approved of Uribe’s pragmatic approach to troops and to establish offices to receive com- further economic growth and achieve stabil- plaints by citizens of misconduct by military ity by cracking down on left-wing guerrillas personnel. According to the U.S. State De- and reaching an amnesty agreement with the partment, the Colombian government’s re- paramilitary AUC. Although the crime rate spect for human rights continued to improve has dropped, serious human rights issues re- and the majority of violations are committed main. It remains to be seen whether the con- by illegal armed groups. Although impunity stitution’s checks on executive authority are for military personnel who collaborate with adequate, and whether the balance of power paramilitary forces remains a problem, the is flexible enough to enable the country to be Office of Inspector General (Public Minis- governed well and democratically during this try) successfully charged 22 military persons drive for stability. with human rights violations and secured long prison terms for the offenders. Civilian courts adjudicate all serious violations of ci- Conclusion vilian human rights. Over a four-year period The constitutional assembly’s attempt to beginning on January 1, 2005, a new accusa- create a better framework for a functioning tory code of criminal procedures was set to democracy represented an act of political © Copyrightreplace the inquisitorial system by traditional the Endowmentwill that, in the light of Colombia’s of history in Latin America, in jury trials open to the of violence, was nothing short of prodigious. public.11 Obviously, neither the assembly nor the con- theWith United substantial assistance States from the Institutestitution it created brought of peacePeace to Colum- United States, the Uribe administration es- bia, but it did as much as could be expected tablished Plan Colombia to strengthen public under the circumstances: It moved in the di- institutions, reform the judicial system, com- rection of consigning organized violence to bat corruption, and reduce the illegal drug the realm of outlaws, restricting the capacity trade. In part, the plan was implemented by of the government to exercise power illegally destroying illegal coca crops while assisting and creating new mechanisms and powers poor farmers to replace the coca with legal to protect individual rights against both the crops. Nine hundred million dollars were al- outlaws and the government. located to building roads to the Putumayo However much the process of making the region, increasing the government’s presence 1991 constitution diminished the duopoly of there through schools, health clinics, and so- political power, fostered open dialogue and cial services. This helped the negotiation of democratic cooperation, and strengthened voluntary coca eradication agreements while the capacity of the legal system to protect 482 Donald T. Fox, Gustavo Gallón-Giraldo, and Anne Stetson

the constitutional order, the ensuing decade dor (Caracas: Fundación Eugenio Mendoza, 1967), demonstrated its inadequacy before the chal- p. 531. For a fictional depiction of Bolivar’s state of lenges presented to a weak state lacking the mind, see Gabriel Garcia Marquez, El general en su laberinto (Bogotá: Editorial Oveja Negra, 1989). political will to address the root causes of vi- 2. See Joseph B. Treaster, “Colombia Siege olence. Despite the sincere effort in conven- Survivors are Bitter,” The New York Times, Novem- ing representatives from across the political ber 11, 1985. Eleven judges were killed during the spectrum and hammering out the consensual government’s attack; one later died of a heart attack mandate that is the 1991 constitution, the in a hospital. potent cocktail of the internal conflict, nar- 3. See Comisión Andina de Juristas, Violen- cotics trafficking, and a weak state unwilling cia en Colombia (: Comisión Andina de Juris- tas, 1990). to implement human rights norms defied the 4. This irony is well noted by Manuel José capacity of Colombia’s democratic institu- Cepeda, presidential counselor for the development tions to achieve peace and stability through- of the constitution under President Gaviria, in his out the state, and particularly in rural areas. collection of addresses on the administration’s suc- In recent years, there has been progress in cess in securing a constitutional reform, Introducción the effectiveness of government and an in- a la Constitución de 1991: hacia un nuevo constitucio- crease in stability. If the Uribe administra- nalismo (Bogota: Presidencia de la República, Con- sejería para el Desarrollo de la Constitución, 1993). tion is to achieve lasting success, it will have 5. See “Colombia: Cooling It,” The Econo- to continue to reduce the violence that has mist, March 30, 1991, p. 4. plagued Colombia and promote a pattern 6. James Brook, “Door Opens a Crack for of economic development that benefits the Colombia’s Indians,” New York Times, May 2, 1991, great majority of its citizens. The process that p. A10. led to the adoption of the 1991 constitution 7. Gaceta Constitucional no. 114, p. 35. is an example of political cooperation in the 8. Carlos Heras de la Fuente and Marcel interest of the common good. Following the Tangarife Torres, Constitución Politica de Colombia, spirit of this constituyente would help secure vol. 1 (1996), pp. 332–44. peace and justice, along with order. 9. Arts. 93 and 214 (2). 10. The constitutional court has asserted its competence to judge the constitutionality of presi- dential decrees that declare states of exception un- ©Notes Copyright by theder arts.Endowment 4, 213, 215, and 241 of the constitution. of 1. Vicente Lecuna Salboch, ed., Cartas del 11. U.S. Department of State, “Human Libertador, vol. 9 (Caracas: Editorial Tip. del Co- Rights Practice in Colombia 2005,” released mercio,the 1929), United p. 11; Augusto Mijares, States El Liberta- March Institute 8, 2006. of Peace