Colombian Constitution of 1991

The Constitution of Colombia (Spanish: Constitución Política de Colombia), better known as the Constitution of 1991, is the current governing document of the Republic of Colombia. Promulgated on July 4, 1991, it replaced the Constitution of 1886. It is Colombia's ninth constitution since 1830. See a timeline of all previous constitutions and amendments here. It has recently been called the Constitution of Rights.

History

Main article: Constitutional history of Colombia

After an agitated constitutional period in the 19th century, in 1886 Colombia adopted one of the oldest constitutions in Latin America. Nevertheless, after a century in force, the Constitution of 1886 was in need of modifications in order to adapt it to the country's changing social, economic and political conditions.

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 18 August in Soacha, the bombing of the El Espectador newspaper's offices in Bogotá on 2 September, the in-flight explosion of Avianca Flight 203 on 27 November and the bombing of the DAS headquarters on 6 December causing the death of 70 people. In 1990, two other presidential candidates were assassinated - Bernardo Jaramillo of the Patriotic Union (UP) was killed 22 March 1990, and Carlos Pizarro of the AD M-19 was shot on 26 April 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 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:

ARTICULO 218. La Constitución, salvo lo que en materia de votación ella dispone en otros artículos, sólo podrá ser reformada por un Acto Legislativo, discutido primeramente y aprobado por el Congreso en sus sesiones ordinarias; publicado por el Gobierno, para su examen definitivo en la siguiente legislatura ordinaria; por ésta nuevamente debatido, y, últimamente, aprobado por la mayoría absoluta de los individuos que componen cada Cámara. Si el Gobierno no publicare oportunamente el proyecto de Acto Legislativo, lo hará el Presidente del Congreso. ARTICLE 218. The Constitution, [...] may only be amended by a Legislative Act, first discussed and adopted by Congress in its regular sessions; published by the Government, for final consideration at the next regular legislative session; by it again debated, and ultimately approved by the absolute majority of the individuals which compose each House. If the Government does not promptly publish the draft legislative act, the President of Congress will do so.

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:

ARTICULO 13. En adelante las reformas constitucionales sólo podrán hacerse por el Congreso, en la forma establecida por el artículo 218 de la Constitución. ARTICLE 13. Henceforth constitutional reforms may only be passed by Congress, in the manner prescribed by Article 218 of the Constitution

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 5 May 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 4 April 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 del Rosario, Pontificia Universidad Javeriana, Universidad de los Andes), proposed the formation of a constituent assembly. In 1989, the movement had gathered over 30,000 signatures for an unsuccessful petition asking the president to convene a plebiscite to reform the constitution. Some months later, the students promoted the so-called séptima papeleta, or 'seventh ballot paper', as an unofficial plebiscite for a constituent assembly to be held alongside the March 1990 legislative election. The name séptima papeleta meant to indicate that the unofficial ballot for a constituent assembly would be in addition to the six other official ballot papers (senators, representatives, departmental assemblies, mayors, municipal councils and the Liberal presidential primary).

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."Los Yuppies Constituyentes". Semana. 12 November 1990.</ref>

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.

In December 1990, elections were held for members of a National Constituent Assembly, which would promulgate the new constitution in 1991. The presidents of the National Constituent Assembly were Alvaro Gómez Hurtado on behalf of the Conservative Party, Horacio Serpa from the Liberal Party and Antonio Navarro from the M-19 movement.

Main points of change

• Colombia took the shape of a decentralised unified state with a certain autonomy for its territorial entities and a presidential system. The four-year presidential term was retained.
• An accusatory judicial system was established through the Attorney General of Colombia (Fiscalía General de la Nación).
• The power of judicial review was transferred from the Supreme Court of Justice, which had exercised it since 1910, to an independent Constitutional Court. This new body hears challenges to the constitutionality of laws, legislative decrees, laws approving international treaties, and referendum or assembly constituency summons and hears appeals of lower judicial decisions related to the tutelage action of constitutional rights.
• The tutelage action was instituted as a quick and effective mechanism that allows citizens to assert their fundamental rights as stated in Article 8 of the Universal Declaration of Human Rights of 1948.
• The extradition of Colombian citizens was banned. This article was repealed in 1996.
• Presidential reelection was banned completely. An immediate re-election was already forbidden in the Constitution of 1886. However, this rule was repealed in 2004 using procedures that were declared valid by the Constitutional Court on October 19, 2005. In 2015 the Colombia’s Congress approved the repeal of a 2004 constitutional amendment that eliminated the one-term limit for presidents.

See also

• Constitution
• Constitutional law
• Constitutional economics
• Constitutionalism

External links

Wikisource has original text related to this article:

Constitución de Colombia de 1991

Wikisource has original text related to this article:

Constitución de Colombia de 1886

• http://www.lablaa.org/blaavirtual/revistas/credencial/abril%202001/136sxx.htm Desde the Constitución de 1886 a the Carta Política de 1991 - Biblioteca Luis Angel Arango (page no longer exists)
• UN Human Rights report containing an English translation of the human rights provisions of the constitution.
• Text of the Colombian Constitution of 1991, in English