The Political Constitution of Colombia of 1991 (), is the Constitution of the Republic of Colombia. It was promulgated in Constitutional Gazette number 114 on Sunday, July 7, 1991, and is also known as the Constitution of Rights. It replaced the Political Constitution of 1886 and was issued during the presidency of the liberal César Gaviria.
It is divided up into eight sections, under titles.
History
In the late 1980s, Colombia was facing a period of unprecedented violence. Although political violence had been commonplace in the country's history since the 19th century, and Colombia had been embroiled in an armed conflict primarily against guerrilla groups since the 1960s, in the 1980s the list of actors involved in the armed conflict became increasingly complex and the violence took on new forms. The conflict now involved new guerrilla movements, paramilitary groups and violent drug cartels (most famously the Medellín Cartel of Pablo Escobar). Politically, the National Front arrangement (1958–1974) between Colombia's two dominant parties, the Conservatives and the Liberals was widely seen as delegitimizing the political system by severely limiting third parties and other movements' political participation. Although the strict application of the National Front ended with the 1974 election, the power-sharing aspects of the system were dismantled only gradually - only in 1986 did President Virgilio Barco form a single-party Liberal government, after the Conservatives had rejected his offer of three ministries in his administration.
A series of assassinations and terrorist attacks in 1988 and 1989 increased popular demands for political and constitutional reform, as the country's existing political institutions were seen as broken in the face of the wave of extreme violence. 1989 witnessed the assassination of 12 judicial officers, the assassination of Liberal presidential candidate Luis Carlos Galán on August 18 in Soacha, the bombing of the El Espectador newspaper's offices in Bogotá on September 2, the in-flight explosion of Avianca Flight 203 on November 27 and the bombing of the DAS headquarters on December 6 causing the death of 70 people. In 1990, two other presidential candidates were assassinated - Bernardo Jaramillo of the Patriotic Union (UP) was killed March 22, 1990, and Carlos Pizarro of the AD M-19 was shot on April 26, 1990. The August 1989 assassination of Luis Carlos Galán, who was the early favourite to win the 1990 elections, shocked public opinion in Colombia and led, seven days later, to a 'silent march' (Marcha del silencio) organized by university students in Bogotá. The organizers' original objective was to express their rejection of indiscriminate violence, which had claimed the lives of an average of 11 people per day in 1988.
Previous attempts at constitutional reform
One of the factors which made constitutional change difficult was that the 1886 Constitution could only be amended by the Congress. Article 218 of the Constitution of 1886, as it stood in 1990, stated that the Constitution could only be amended by a law (legislative act, or Acto Legislativo) passed by Congress:
The constitutional reforms which, among other things, set-up the National Front, were approved by a national plebiscite in 1957. However, the text approved by voters in the 1957 plebiscite reiterated that any future constitutional amendments could only be passed by Congress in the manner prescribed by article 218. Article 13 of the Legislative Decree 0247 of 1957 (Decreto Legislativo Numero 0247 de 1957) read:
Notwithstanding these legal difficulties, several presidents beginning attempted to reform parts of the constitution, but most saw their efforts rebuffed by the Supreme Court of Justice or political complications. In 1977, under President Alfonso López Michelsen, Congress passed a constitutional amendment convening a constitutional assembly to amend the constitution only as it pertained to departmental/municipal administration and the judiciary (courts, public prosecution, constitutional jurisdiction). On May 5, 1978, the Supreme Court of Justice ruled the project unconstitutional. In its verdict, the court argued that Congress' power to amend the constitution under article 218 was an exclusive power which it could not delegate.
In December 1979, Congress approved President Julio César Turbay's constitutional reform initiative. The reform made substantial changes to the administration of justice, public prosecutions and the process of judicial review by the Supreme Court. Following a tortuous court challenge, the Supreme Court rendered a controversial ruling on the constitutional amendments in November 1981, striking down the entire project because of procedural defects in the legislative procedure.
In 1986, faced with the urgency of presenting some tangible proof of the "democratic opening" (liberalization) that left-wing movements and guerrillas had been incessantly demanding, the Congress passed a constitutional amendment allowing for the direct election of mayors (hitherto appointed by departmental governors). There was growing clamour to reform the 1886 constitution, accused of 'closing' political institutions, limiting opportunities for the political participation of minorities and not permitting the "democratic opening" which would guarantee the reincorporation to civilian life of armed rebel groups.
Early attempts at reform under the Barco presidency
In 1986, Liberal candidate Virgilio Barco was elected to the presidency on a platform of national reconciliation. In January 1988, Barco unexpectedly revived the idea of substantial constitutional change by proposing the organization of a plebiscite, alongside the March 1988 local elections, to repeal article 13 of the 1957 plebiscite. The president hoped that a plebiscite would give legitimacy to the repeal of this article (which had also been approved by plebiscite). However, Barco was forced to shelve the idea because of the lack of political consensus around his proposal.
Instead, in February 1988, Barco signed a bipartisan agreement with leaders of the Liberal and Conservative parties (the Acuerdo de la Casa de Nariño) which included agreement on the organization of a "process of institutional readjustment" - the creation of a constituent body, originating in Congress, which would submit a proposal for constitutional reform to Congress. The process was suddenly halted by the Council of State's ruling on April 4, 1988, which declared it to be unconstitutional. A later attempt to resuscitate the original idea of a plebiscite was rejected by the government itself in December 1988, after a group of congressmen had tried to add a question banning extradition.
Meanwhile, Barco's policy of national reconciliation had been successful - four guerrilla groups demobilized between 1989 and 1990. The M-19 was the first group to accept the government's offer to dialogue in 1988, culminating in the movement surrendering their weapons in March 1990. The M-19's demobilized members became a political party, known as the Democratic Alliance M-19 (AD M-19), in 1990. In 1991, the Workers' Revolutionary Party (PRT), most fronts of the Popular Liberation Army (EPL) and the Movimiento Armado Quintin Lame (MAQL) all demobilized. One of the terms for their demobilization was their (limited) participation in a constituent assembly. The Revolutionary Armed Forces of Colombia (FARC) supported a new constitution, but did not demobilize. The left-wing Patriotic Union (UP), created in 1985 as the FARC and the Communist Party's legal political wing, also supported a new constitution.
Student movement and the séptima papeleta
A student-led movement called Todavía podemos salvar a Colombia ("We can still save Colombia"), born from the August 1989 'silent march' and predominantly spearheaded by student and faculty from the most prestigious private universities of Bogotá (Universidad Externado de Colombia, Universidad del Rosario, Pontificia Universidad Javeriana, Universidad de los Andes), proposed the formation of a constituent assembly.
The séptima papeleta was the brainchild of Fernando Carillo, a young Harvard graduate and constitutional lawyer, who at the time was teaching law in Bogotá's three main private universities. In February 1990, Carrillo published an article in El Tiempo, the first to use the term séptima papeleta and explaining the objectives of his idea. Carrillo argued that the unofficial vote would "create a political fact" and "set the record that public opinion wants a constituent assembly", while the expression of popular sovereignty would keep the courts from invalidating it. Carrillo's idea immediately received substantial support from the political and media elites of the country. El Tiempo, Colombia's largest newspaper, enthusiastically supported the movement and later provided some of the material support necessary to print the ballots. Liberal presidential candidate César Gaviria supported the idea and was the first presidential contender to speak about it publicly. Former President López Michelsen supported the idea, and further proposed that the government issue a state of siege decree ordering the official counting of the seventh ballot papers. On 10 March, a day before the election, President Barco gave his personal support to the séptima papeleta. Most Liberal factions also supported the séptima papeleta, with the only significant Liberal opposition coming from former president Turbay and Liberal presidential candidate Hernando Durán Dussán. Álvaro Gómez Hurtado, leader of the conservative National Salvation Movement (MSN), initially opposed constitutional reform. The strongest support for the séptima papeleta came from the legal left-wing parties, the UP and the new AD M-19. The FARC, for their part, proposed an entirely new constitution written by a constituent assembly, which would be convened by a plebiscite.
The idea of the séptima papeleta was similar to the conclusions of a 1988 government report prepared by Manuel José Cepeda, the son of then-communications minister Fernando Cepeda, for President Barco. Based on a detailed analysis of the constitutional jurisprudence of the Supreme Court, Cepeda had concluded that the 1886 constitution could be reformed through a plebiscite or constituent assembly, as long as it was convened by the people. The unofficial count showed over 2.2 million votes in favour of a constituent assembly, out of over 7.6 million votes cast in the election.
Decree 927 and the 27 May Referendum
On May 3, 1990, President Barco issued Decree 927, ordering the electoral authorities to count the votes for an official (but non-binding) vote convening a constitutional assembly, to be held alongside the May 27 presidential election. The decree claimed that intensified violence had created "a popular clamour for institutions to be strengthened".
The decree was challenged in court, with its opponents claiming that there was no relationship between the state of siege under which the decree was proclaimed and the measures it provided and that it violated article 218 of the constitution (as well as article 13 of the 1957 plebiscite). In the opinion of the public ministry, there was no relationship between the state of siege and the measures provided by the decree, given that the state of siege only allowed for measures to maintain, not change the institutional order. The legality of non-binding votes was also questioned. The Supreme Court, through sentence 59 of May 24, 1990, ruled the decree to be constitutional. Arguing that the country's political institutions had lost their effectiveness and become unsuitable in the face of greater violence, their 'redesign' was clearly necessary.
Decree 1926
Liberal candidate César Gaviria was elected president on the same day as the vote on the constitutional assembly was held. Gaviria had served as interior minister in Barco's government, actively involved in constitutional affairs. Although Colombian voters - those who participated - had overwhelmingly voted in favour of a constitutional assembly in an officially sanctioned vote, there was no agreement on the form that constitutional change should take. Large number of politicians from both major parties preferred to see constitutional reform done through Congress rather than a constituent assembly, while more marginal political and social forces pushed for a constituent rather than constitutional assembly.
Gaviria undertook dialogues with the major political parties and their leaders. In July 1990, Gaviria sent his draft proposal for a constitutional assembly to the largest political parties. His proposal planned for a small assembly, a rigid predetermined agenda and with guerrilla participation limited to those groups who had demobilized. Gaviria's draft was rejected by the guerrilla groups, smaller legal left-wing parties, the umbrella organization of pro-constituent assembly movements and even Todavía podemos salvar a Colombia. Pro-constituent assembly groups instead proposed a constituent assembly to write a new constitution, with extensive grassroots and guerrilla participation.
On August 2, 1990, Gaviria oversaw the signing of a political agreement for a constitutional assembly by members of the Liberal Party, the two rival Conservative groups and the AD M-19. This agreement was the basis for Decree 1926, issued on August 24 and calling for a referendum on the creation of a constitutional assembly on the basis of the political agreement and simultaneous elections to the constitutional assembly. Like decree 927, decree 1926 was issued as a state of siege decree under article 121 of the 1886 constitution, and justified the creation of a constitutional assembly with the need to solve the country's conflicts by reforming the country's institutions. As per the agreement/decree, the referendum for and parallel election of a constitutional assembly would be held on December 9, 1990, and the assembly would convene a period of 150 days beginning on February 5, 1991. The assembly would be composed of 70 members elected in a single multi-member national constituency, with a minimum of two additional seats reserved for non-voting delegates from demobilized guerrilla groups. Only citizens who had held high political office, had been university professors for at least three years or had worked in a field with a university degree for at least five years were eligible for election, although the decree created exceptions for those who had been undergraduate students for at least one year, indigenous leaders for at least one year, social leaders for at least one year or those who had received a pardon as part of a peace process. Others - such as the pro-constituent assembly groups on the left - blasted the fairly rigid eligibility conditions and the exclusion of students, guerrillas, social leaders and indigenous peoples. These left-wing groups organized demonstrations for a "people's constituent assembly" on September 6. The FARC, who claimed to support a dialogue with the government, contended that the government's constitutional assembly would merely serve to pass reforms which had failed in Congress and reiterated their demands for an "autonomous and sovereign constituent assembly" which would draft a new constitution. Demobilized groups such as the PRT, MAQL and some fronts of the EPL cautiously welcomed some aspects of the decree but sought modifications in certain areas.
Ruling 138 of the Supreme Court of Justice
Decree 1926 was brought to the Supreme Court by several plaintiffs. The decree's advocates argued that it pertained to the organization of an electoral event and claimed that the Nation, the source of sovereignty under article 2 of the 1886 constitution, could exercise its constituent power notwithstanding articles 218 and 13. Critics of the decree, the court's record stated, hit it from several angles - those who claimed the anticipated reforms were elitist and limited in scope; and those who claimed that the decree was unconstitutional as it violated articles 218 and 13 (they also rejected preeminence could be established between articles 2 and 218). As with decree 927, the public ministry opined that the court should either inhibit itself from ruling on the decree (as it was a 'political act') or rule it unconstitutional.
On October 9, in sentence number 138, the Supreme Court of Justice narrowly ruled decree 1926 to be constitutional with specific exceptions. The ruling created deeper divisions between the judges than their May ruling on decree 927, ultimately being approved with 15 votes in favour and 12 dissents (salvamentos de voto). The court found that the decree, taken in its entirety, had sufficient connections to the state of siege, for reasons similar to those presented in its May 24 ruling on decree 927. Summarizing its opinion, the majority wrote: