Virtual Roundtable: The Peace Process and the Constitution: Constitution Making as Peace Making?

Manuel Cepeda Espinosa.jpg

Manuel José Cepeda Espinosa

President of IACL


This week, we return to some of the themes discussed at the IACL roundtable held in Melbourne in May 2016. In this second blog post, we publish the text of the University of Melbourne 2016 Human Rights Lecture delivered by Manuel José Cepeda Espinosa, President of the International Association of Constitutional Law, entitled “The Peace Process and the Constitution: Constitution Making as Peace Making?”

The main purpose of this lecture is to analyze the relationship between peacemaking and constitution-making in my country, Colombia. In particular, I address two questions: First, how peacemaking has lead to innovative institutional designs. Second, how constitution making has been an instrument to promote and consolidate peace in different critical moments from the second half of the 20th century.

Unfortunately in Colombia we have had recurring cycles of conflict, peace agreements, constitutional reforms, new conflicts, new peace agreements, new constitutional reforms. It is as if in Colombia we have adopted as mantra Winston Churchill’s famous words: “Success consists of going from failure to failure without loss of enthusiasm”. Colombia has seen partial peace and constitutional reforms that have reduced the scope and impact of the armed conflict but that failed to completely end the conflict or to create conditions to definitively overcome the causes of it. But we persevere. That is why Colombia is a paradise of constitutional experimentalism, if I may use this somewhat heretical notion. We are a sort of institutional design laboratory that offers a unique window into the peace making, peace building and peace consolidation processes.

I will refer to four types of institutional design features which express four forms of relationship between peacemaking and constitution making. I shall confine myself to events and developments after the Second World War. These institutional design features include:

(1) Institutional designs aimed at achieving a total separation between politics and lethal weapons, so that ideas are defended and disputed exclusively by peaceful means. We refer to  these institutional designs as constitutional peace pacts.

(2) Adoption of reforms aimed at creating mechanisms to facilitate the transition of rebel groups to civilian life and include them as players in the democratic process. We call these institutional instruments for building and consolidating peace.

(3) Institutional arrangements aimed at a deeper and broader peace, that is, to protect the oppressed, those discriminated against, marginalized and excluded. In the context of Colombia,  these are minorities, indigenous peoples, afro-descendant communities, as well as poor people who for decades have been trapped in poverty. We call these arrangements transformative social constitutionalism.

(4) Judicial actions and remedies for the benefit of those that cannot effectively recur to ordinary judicial proceedings or ordinary politics to assert their rights or defend their interests. Notorious among them is a specific writ of protection of fundamental rights, called tutela. We say that it institutionalizes peaceful rebellion against arbitrariness. Tutela complements another judicial action, the actio popularis of unconstitutionality, which is available to any citizen to challenge acts of Congress directly with petition to the Constitutional Court. We say that it institutionalizes rebellion against unjust laws.

Before going into these 4 kinds of institutional design features, I will need to digress for a moment and provide you with some  context on Colombia. The experts seem to always conclude that  it is a very complex and paradoxical country, which obviously explains little. They are right to be cautious. It is difficult to explain the following aspects of the Colombian context.

Colombia is the most stable electoral democracy in Latin America, holding periodical elections since the mid-19th century. At the same time Colombia has endured the most protracted armed conflict in the American continent with the roots of the conflict going back to the  1960s and the cold war.

It is a constitutional system with a century old tradition of judicial independence and judicial review of the constitutionality of laws – the most ancient and uninterrupted after the United States-, but at the same time it is a country where too many disputes are solved by bullets or by resignation of the weak.

The large drug cartels which, through terrorism, defied the State were dismantled between 1993 and 1996. However, in 2016 Colombia returned as the leading exporter of cocaine in the world, without the reemergence of powerful cartels, most of which are now based in Mexico.

Economic growth during the 20th century is only surpassed by Chile in Latin America and poverty has been reduced from over 64% of the population in 1999 to 28% in 2015. However,  Colombia has been and remains one of the most unequal countries in the region, with a Gini coefficient of 0.535.

Violence and arbitrariness have coexisted with an excessively legalistic tradition. We attribute this to Santander, a lawyer, General, and rival of Simon Bolivar. At the entrance of the Palace of Justice, his words are encrypted: “Colombians, arms gave you independence, but only laws will give you freedom”.

The tension between arms and law lingers as an eternal spell. Some observers conceptualize what happens in Colombia as a nearly unsurmountable struggle to gain territory between the rule of law, which is in expansion beyond the urban areas, on the one hand, and violence, which retracts but finds endless ways to reemerge not only in rural areas 220,000 dead, 6.5 million internally displaced persons, 50,000 disappeared persons have caused a profound suffering in most Colombians and yet Colombia usually ranks at the top of the list of very happy countries, according to the World Values Survey or the Happy Planet Index.

Gabriel Garcia Marquez, an illustrious Colombian writer, tried to explain this contradiction, beautifully. He said two decades ago: “we have an almost irrational love for life, yet we kill each other in our craving to live”.

How is it possible that around 10,000 guerrillas, in a country of nearly 50 million people, have managed to persist in spite of having to confront, since 2002, the second most powerful and numerous army in the Americas after the United States Army ? I mention just one factor.

If someone had been commissioned to design the perfect geographic territory for the survival of guerrilla groups, she would have invented Colombia. The mountain range of Los Andes is divided in three sections by the time it reaches Colombia. Forested areas are inaccessible, unless you dare to walk under inhospitable conditions. Several rivers divide the country from the South to the North and from West to the East. If one knows the area, it is easy to cross the border to Ecuador, Peru, Brazil and Venezuela, camp for a while and then return to Colombia.

Whatever the factors, the blunt fact is that FARC guerrilla have been around since the end of the 60s as has another less known guerrilla group, the ELN. Negotiations with FARC, composed of 7500 guerrillas, have significantly progressed since they started in November 2012. Talks with the ELN, composed of 2500 guerrillas, have initiated very slowly in Venezuela.

Four substantive agreements have been signed between the Government and FARC in Havana, Cuba, on the following matters: rural development, land reform and land restitution in a country that is only 24% rural and where peasants have been the main victims of the armed conflict; political participation, representation and guarantees for the opposition in a country where local clientelism and patronage still predominate; dismantlement of drug trafficking and projects for crop substitution; and protection of victims’ rights which include a Truth Commission, an agreement on reparations, an agreement on mechanisms to find disappeared persons, and a Special Tribunal to punish crimes that cannot be pardoned by an amnesty. Negotiations continue on demobilization, disarmament and reincorporation of the guerrilla and on the means to ensure the implementation and verification of the peace agreements and their popular ratification.

The concrete results of the progress in the peace process are evident. FARC declared a unilateral cease fire. The Government responded with measures to de-escalate military activities. 2015 was the least violent year in Colombia in decades.

The agreements so far reached with the FARC will need to be backed by the following constitutional reforms. These are good examples of the first type of relationship between peacemaking and institutional design: constitutional instruments specifically aimed at making peace.

The first constitutional reform will need to deal with institutions of transitional justice. A constitutional reform will create a special jurisdiction for peace, outside the Colombian ordinary judicial system, headed by a special national tribunal. It will also authorize the adoption of substantive and procedural rules that allow the functioning of this new jurisdiction. The guerrillas and the military who have committed crimes against humanity, grave war crimes, genocide and other crimes that involve serious violation of human rights such as torture, extrajudicial executions, disappearances, forced displacement, sexual violence, and recruitment of minors, will be held accountable for their crimes in this special jurisdiction. Other crimes committed by the guerrilla in close relation with the rebellion may be pardoned by an amnesty if certain conditions are met, namely disarming, participating in the truth commission, contributing to material or symbolic reparation, and fulfilling obligations of non-repetition. Crimes committed by the military in relation with the armed conflict cannot be subject to amnesty but may receive special treatment to avoid an inequitable treatment in comparison to the guerrilla.

The special tribunal for peace, composed initially of 20 national judges and 4 international ones, may impose sanctions whose compliance will be monitored by an international body and an organ commissioned by the same tribunal which will submit  periodic reports on the effective enforcement of its sentences. Sanctions can range from 20 years in prison to eight years of effective restrictions of liberty accompanied by working activities to provide reparation to the victims and restore broken communities. The most severe sanctions will be imposed upon those who do not recognize their own responsibility nor reveal the full truth of the crimes they committed. The lighter sanctions will be imposed upon those who recognize full responsibility and reveal complete truth. The special jurisdiction for peace should concentrate on the most responsible of the most serious crimes, without leaving aside active participants and collaborators.  It must also give priority to crimes committed against vulnerable persons in the armed conflict, such as women and children. If there is interest, I can afterwards dwell on some of the 75 points of the transitional justice agreement signed on November of 2015.

This is the first time during a peace process that Colombia establishes a special jurisdiction to investigate, prosecute and punish the most serious crimes. In the past, peace agreements have provided general amnesties to the guerrillas, with simple conditions.  “If any man ceases to attack me, I never remember the past against him”, so said Abraham Lincoln. This option became unworkable. First, because of the international commitments accepted by Colombia, notably the Treaty of Rome which created the International Criminal Court, who has jurisdiction since November 2002 and since November 2009 for war crimes.

Second, because of the jurisprudence of the Inter American Court of Human Rights, who forbids blanket amnesties and self amnesties and requires that serious human rights violations be investigated, prosecuted and punished. Third, and most importantly because of internal constitutional constraints which require the protection of  the rights of victims to truth, justice, reparation and non-recurrence.

The special jurisdiction for peace is part of a comprehensive system, in which there will be also a Truth Commission to clarify the causes, the evolution and the social, political, economic and cultural effects of the armed conflict. The Truth Commission is purely political, its recommendations are not mandatory, and what people say before the Truth Commission cannot be taken as evidence in court proceedings.

Now, I will pause for a minute to explain some of the institutional innovations of the special peace jurisdiction. The fundamental problem to be solved was the following: how to convince a guerrilla group (that for 60 years had rebelled against the Constitution and the laws of the country) to accept to be judged by Colombian judges applying Colombian criminal laws? Although some contemplated the creation of an international tribunal, following the example of the former Yugoslavia and Rwanda, this option was discarded. It was considered unfeasible in a country with a long tradition of judicial independence and a comparatively strong and proud national judiciary.

The formula combined several elements.

First, the special jurisdiction will be separate from the ordinary criminal jurisdiction but created by the constitutional procedures for amending the Constitution.

Second, the special judicial organs will be composed of mainly Colombian judges but selected by a procedure different to the ordinary one. In any case, the selection procedure must exclude the participation of the guerrilla, the Executive and the military. There will be four foreign judges that will act as ad hoc judges, chosen by lot, by request of the individual to be judged.

Third, regarding the application of Colombian criminal law the approach is as follows. International crimes within the jurisdiction of the International Criminal Court and other serious human rights violations cannot be amnestied. National criminal laws which coincide materially with such international crimes shall be the applicable law, if in force at the time of the commission of the respective criminal conduct, even before the ICC had jurisdiction on Colombia. For example, the crime of hostage-taking will not be amnestied. National criminal legislation punishes kidnapping civilians in exchange of a financial reward. Although the national crime is not called hostage-taking, its material content coincides with one of the modalities of this international crime. The special peace jurisdiction shall ensure concordance between the applicable national criminal legislation and the list of international crimes.

Access to the special peace jurisdiction is subject to several conditions. The most important is that there should be a previous dereliction of weapons. This poses enormous challenges of coordination between the process of demobilisation, disarmament and reintegration into civilian life of the guerrilla group and its members, on the one hand, and the effective functioning of the special jurisdiction for peace, on the other hand. The second condition is that the special jurisdiction only has jurisdiction over crimes committed prior to the entry into force of the final peace agreement. Therefore, the guerrilla must cease any delinquent activity because otherwise the subsequent conduct can be investigated and judged by ordinary courts and in addition be subject to extradition. We expect that this will bring genuine justice. The agreement expressly says that one of its main aims is to end impunity and protect victims’ rights.

It amazes me how polarized the perceptions are in the domestic political debate. At the end of the public ceremony for the signing of the agreement on transitional justice, one of the representatives of the guerrilla told me that certain members of the guerrilla thought that the agreement had been very severe with them. They fear, he said to me, that they will sign peace to go to jail, or in the best case to have severe restrictions on freedom of residence, movement and work. Yet national sentiment is so adverse to the guerrilla that most Colombians consider that the transitional justice agreement should have been more drastic. Both extreme positions are distorting the core of the agreement.

A constitutional amendment must not only create a special jurisdiction for peace but also introduce special rules for political participation. Those convicted by the special peace jurisdiction will not be barred from participating in politics, as is the general effect of any ordinary criminal sentence in Colombia since 1991.

In addition, special electoral districts will be created in the areas most affected by the armed conflict in order to promote their representation in Congress and thus give them greater weight in decision-making processes after the end of the armed conflict. In previous peace processes, special electoral mechanisms were also introduced.  In 1991, four guerrillas groups demobilized after the inauguration of the Constituent Assembly. They were offered a few chairs in the Assembly, some with the right to speak only. Three guerrilla groups made peace and then appointed their representative to the Constituent Assembly.

Third, a special implementation mechanism in order to expedite the issuance of laws and other legal regulations to comply with the peace agreement must be adopted. The two parties still disagree on how to do that.The distrust of the ordinary political process has raised concern about whether the peace agreements will be respected or betrayed.

So, a fourth issue of constitutional instrumentalization arose: If implementation laws must respect the peace agreements, does that mean that such agreements, which initially were understood to be political agreements, are in fact legal agreements? If this is the case, which aspects of them have normative force and what place do they occupy in the hierarchy of legal norms? This fourth issue divided the Government and the guerrillas to such an extent that it was one of the aspects that prevented them from signing a final peace agreement on March 23, as both parties aimed to do. Guerrilla negotiators maintain that the final peace agreement that puts an end to the hostilities is a special agreement of international humanitarian law. This would have the effect, according to some Colombian jurists, of elevating the agreements to constitutional rank. The Government did not accept that an agreement with an armed group (who had for decades defied the constitution) could enter by the window to the constitutional order. Thus, it is necessary to follow the normal procedures to amend the constitution in order to implement the agreements.

In addition, the government contends that the agreements should be subject to popular approval before the adoption of legislation for their implementation.

Consulting the people seems natural in a democracy, but it generates enormous distrust in the guerrilla. Due to the atrocities committed during the armed conflict, the majority of Colombians, until now, are against the electoral participation of former guerrilla leaders and demand that those responsible for crimes be punished with more severe penalties, that is, 60 years in prison. The Government is betting that public opinion will shift after a final peace agreement is signed and peace is near, at last.

I turn now to a second type of institutional arrangement aimed at making, building and consolidating peace: constitutional pacts of peace. The main one was a classic example of power sharing. It worked well for the elites that signed the pact but created a sentiment of exclusion on grassroots organizations and leftist political forces.

In 1957 a peace process was completed, perhaps the most important one for Colombia. It sealed peace between the two traditional parties, the Liberals and the Conservatives. Conflict between them exploded in 1948.  For five years, violence could not be resolved. In 1953, political leaders put pressure on a General to take the Presidency. Reluctantly, he accepted but after four years in power he was sent into exile, and then judged and condemned.

The tranquil dismissal of a general, and peace between Liberals and Conservatives, was made through a constitutional reform which entrenched a temporary political pact. In essence the following was agreed: political power would be shared between Liberals and Conservatives. The Cabinet would be partitioned by halves between the two parties regardless of the political affiliation of the President. The same would happen with all the important offices of public administration and the seats at the departmental and municipal organs of popular representation in a centralist State. The Presidency of the Republic would be alternated every four years between liberals and conservatives. There would be a single candidate of the two parties. Candidates from other parties could run. This pact gave rise to the so-called National Front which lasted in Colombia from 1958 until 1974. The essence of this Pact was submitted to a referendum in 1957 in which women voted for the first time. Support was overwhelming. It was a plebiscite in favor of the peaceful return to democracy.

But this seemingly inclusive constitutional pact to make and build peace was the seed of a new kind of violence.

First, remains of former Liberal guerrillas, mainly peasants, decided to transform into communist guerrilla. Over time, they evolved to become the FARC, i.e. the group that is currently negotiating peace with the Government in Cuba. Leftist intellectuals and even some priests, under the influence of the Cuban Revolution and Liberation Theology, organized another guerrilla group, the ELN.

Second, the political forces who felt marginalized from the pact between Liberals and Conservatives, appealed to leaders outside the two main parties. One of them was the general exiled in 1957. He almost won the elections in 1970, running  against the bipartisan coalition. His most radical supporters argued that the defeat could only be due to electoral fraud. Another guerrilla group, mainly urban, was born, the M-19. Twenty years later, the M-19 signed peace, in 1990. Its members received amnesty, with light conditions, even for the worst  of crimes in Colombian history. After having abandoned its weapons to become a political party, it participated in the processes that led to the adoption of a new Constitution in 1991 by a democratically elected Constituent Assembly. It obtained strong representation, becoming the second force in the Assembly and entitled to one of its three presidencies. The other two were a liberal and a conservative.

The 1991 Constitution was thus adopted with the participation of former guerrilla groups. But most importantly, with the participation of most Colombians. Nearly 1200 citizen groups gathered in every municipality to deliberate about the future text of the new Constitution. The proposals of the citizens were taken into account by the Government in the preparation of the bill introduced to the Assembly. They were also accessible to the delegates. The Constituent Assembly, the most pluralist and diverse representative body ever elected in Colombia, was popularly elected through a special mechanism previously endorsed by the Supreme Court of Justice who said, in a famous statement, that constitutions are peace treaties.

Although guerrilla groups participated in the Constituent Assembly, the assembly was not convoked as a concession to the guerrilla. On the contrary, it was the result of a constituent process directed at strengthening judicial power, combating clientelistic politics and promoting participatory democracy. More importantly, it was a process aimed at showing that profound political changes could be achieved through democratic and peaceful means. The message was clear: transformative politics may have more revolutionary power than armed rebellion.

The 1991 Constitution introduced profound institutional changes. Some of them may be considered the most far reaching instruments to build and consolidate a broad and deep rooted peace.

At the political level, the rules of the game in Colombia became fairly open. Up to 1991 a tight two-party system predominated, but the 1991 Constitution introduced several institutional innovations to favor political minorities allowing them to win spaces both at the national level and at the departmental and local levels. I do not have time to mention them, but they have been paramount to consolidate peace with the four guerrilla groups that laid their arms between 1990 and 1991.

The election of the Senate in one  national district has ensured that representatives of former guerrilla groups or new political movements are represented in Congress. This has been essential for the consolidation of peace.

The popular election of departmental governors and municipal mayors opened spaces to non-traditional leaders. The last three elected mayors of Bogota, the Colombian capital with seven million inhabitants, are from the left. In 2012 the winner was a former M-19 guerrilla member.

The last three Presidents of the Republic have not belonged to any of the two traditional parties. Congress is home to eight parties, plus some small movements, ranging across the ideological spectrum from the extreme left to the extreme right.

The changes in the rules of political representation were complemented by others relating to the direct participation of the people. The Constitution contemplates virtually any mechanism of direct democracy as well as several consultation mechanisms for organizations of civil society. Of course, we also have a long way to go in this respect. But direct democracy mechanisms have been used to promote peace. At the national level, in 1997 nearly ten million Colombians voted in favor of peace, through an informal popular consultation convened by a citizens’ initiative. In several municipalities, also through informal consultations, citizens have voted to declare their territory “neutral territory”, or a “territory of peace”.

The 1991 Constitution is seen as a peace treaty in several senses: it consolidated the end of violence by four guerrilla groups, it created institutions to include marginalized or challenging political actors in a sustainable way, it provided a commonly agreed navigation charter to channel disagreements and conflicts, it laid the foundation of peaceful coexistence within one polity. But in Colombia all this, as important as it may be, is not enough.

I now turn to the other two kinds of relationship between constitution making and peace making in the broad sense: easy access judicial institutions and transformative social constitutionalism.

Conflicts and disagreements in Colombian democracy are frequently resolved in a peaceful and legitimate manner through political participation and representation. However, these political mechanisms are not trusted by certain minorities for different reasons, or are not responsive to the expectations of the majority of the people. Therefore, other means for resolving major disagreements that divide society become important. This is specially the case in a context where unresolved conflicts may lead to the expansion of violence, as had recurrently happened in Colombia.

These other mechanisms in Colombia have been judicial avenues which provide open and easy access to constitutional justice. Thus, the Constitution becomes the ground where the battles that could have evolved into violent confrontations are fought with legal arguments. The forum for these battles are the courts.

The first judicial innovation directed specifically to carry out this function was introduced a century ago, and was improved by the 1991 Constitution. In 1910, a constitutional reform created the public action of unconstitutionality. Any Colombian citizen has the political right to ask the highest court of the country to control, in abstract, the constitutionality of a law. The sentence has era omnes effects. This actio popularis allows any citizen of a political minority that considers that Congress has approved a manifestly unjust law to attack this law before the highest court of the land arguing that it violates the Constitution. It is the institutionalization of the right to rebel against unjust laws.

Since 1911, this actio popularis has been used frequently. The Supreme Court had to tackle political, social, economic and religious problems of enormous complexity. Of course, these problems were dressed in constitutional cloths. It is as if in Colombia, Alexis de Tocqueville had been a best-seller. As you all know, de Tocqueville famously remarked that “scarcely any political question arises in the United States that is not resolved sooner or later in a judicial question”.

However, the public action of unconstitutionality soon had limits as a mechanism of political inclusion and responsiveness to unmet social demands. The main reason for its exhaustion was the text of the Constitution of 1886: it was confessional, extremely presidential, with few rights and many authorizations to severely restrict them, without any recognition of social diversity. This changed with the 1991 Constitution that reinforced the public action of unconstitutionality and entrusted judicial review to a new Court – the Constitutional Court. The 1991 Constitution is secular, moderately presidential, with a generous bill of rights comprising all three generations of rights, respectful of pluralism and social diversity. Under this new framework, the old public action of unconstitutionality has led to judicial decisions of enormous social and political significance.

During the nineties, there were on average 50 abstract judicial review decisions per year. Now, the Constitutional Court renders 400 decisions of abstract judicial review of legislation per year. It is very common that human rights organizations and other organizations of civil society, as well as political dissidents and members of minority groups, recur to the public action of unconstitutionality to challenge acts of Congress.

The second judicial mechanism to channel conflicts is acción de tutela, a special constitutional writ. It allows any person to request before any judge in the country, following just a few simple rules, the protection of their fundamental constitutional rights. The judge must decide in ten days. The decision may be appealed. In any case, all Tutela Judgements are automatically sent to the Constitutional Court, who has discretion to select for revision any Tutela judgement and render a final decision in three months.

Tutela was designed as a mechanism of peaceful rebellion against arbitrariness in daily life. It may be invoked against public authorities and certain private powers. Very soon it was also seen as an instrument of peace.

In 1992 there were less than 10.000 Tutela writs. Since 2010 the judicial system decides about 600,000 tutelas per year. The Constitutional Court renders around 800 tutela judgments per year. Since 1991, the judicial system has decided  5,500,000 tutelas. A huge figure, indeed.

But the most important aspect of the tutela is qualitative. First, it is open to anyone who feels treated arbitrarily by a public or private power. Usually if a person can invoke a fundamental right in her favor, the judge decides against the powerful. Second, tutela judgments have an enormous legitimacy. 70% of  tutelas lost by the plaintiff are not appealed. At the Constitutional Court, I joined colleagues to promote the selection of tutela judgments of first instance decided against plaintiffs who were really in need of protection. In a stormy country where institutions and leaders hardly manage to have 50% approval ratings for a  couple of years,  the tutela has steadily received 80% approval rates since 1994. Attempts to reform it have failed.

Criticisms abound. But even the most severe opponents of giving so much power to the judges in Colombia have recognized that the tutela has been instrumental in promoting the participation of citizens in the legitimate and peaceful resolution of disputes that have profound social impact. In Spanish we say: es preferable un tutelazo que un balazo.

There is another surprising feature of the criticism of the role of constitutional judges. Nobody talks of government by judiciary. There are hard attacks, sometimes ruthless, but no one has said that when judges protect fundamental rights they are governing.

It is accepted that it is their function to do so. What would be an outburst in the Colombian context, is if  a judge refused to protect the rights of citizens who are treated in an arbitrary, discriminatory, exclusionary or repressive way. In fact, the sustainability of independent judicial review in Colombia may be explained essentially because people feel heard, valued and protected by the judges.

The topics of controversy revolve around other matters. On this occasion I shall confine myself to one, which is very relevant to the issue of the consolidation of peaceful societal life: Is it admissible in a democracy, that judges make decisions whose effects trigger profound social transformations?

The other side of the coin may be illustrated by this other question: What peace-consolidating role would be fulfilled by facilitating access to justice, if judges’ response to the demands of citizens is that things should continue as they are….or be maintained for decades until the political forces decide to adopt laws and public policies that meet social demands for recognition, empowerment, emancipation and social transformation?

You know very well the issues of constitutional theory pertaining to these questions. They have been debated for centuries. I will not take position on this theoretical debate. The point that I want to share with you is limited to thecharacteristics of the Colombian context. i.e., a country where the political

processes have had recurrent failures of representativeness and accountability, where policies and regulations have remained static or insensitive to acute social problems, where the bureaucracy does not resemble a rational organization, where barriers to access to the benefits of progress are contrary to the promises of

equality, dignity, pluralism and solidarity. Lets me add two other characteristics of the Colombian context that are especially important for the consolidation of peace: first, a country where alienating citizens or inviting them to hopeless resignation, may be exposing them to the temptation of considering violent options. Second, a country where the lack of institutional answers to the demands for social change may amount to serving on a silver platter the flags of political change to  the guerrilla groups.

Here is a general overview of the impact of the two other institutional designs to make peace: transformative social constitutionalism produced by open access judicial procedures to reach the Constitutional Court. I group their impact in three fields: freedom and equality, social rights and indigenous peoples’ rights. I just list them briefly.

The main clauses of the Concordat with the Holy See are contrary to religious equality. All religions can profess their faith freely and actively and the faithful can adopt behaviors that may be shocking to the majority. Euthanasia, passive and active, is permitted for terminal patients who express their will to die with dignity. Consumption and bearing of a personal dose of illegal drugs cannot be penalized. Every individual has the right to choose autonomously their sexual preferences and change sex. Same-sex couples are entitled to marry, adopt children, inherit and access social security as a couple. Women may not be discriminated against at work and should receive the same salary as men. At least a third of the ministerial cabinet and of high offices in public administration should be assigned to women. If a woman decides autonomously to stay at home, her work as a housewife has economic value and can take precedence over the civil rules of inheritance of the ownership of the house. Women have the right to freely choose the number of children and while Congress adopts a law to protect their freedom and dignity, women are free to have an abortion in the three classic cases, financed by public funds and without legal barriers of access to the corresponding health service.

All social rights are justiciable. Tutela judges may protect the content of the social right and also give orders to the authorities to ensure that the plaintiff effectively enjoys the social right in each concrete case. In addition, tutela judges may issue injunctions to trigger public programs or public policies focused on the protection of social rights. 40% of tutela cases involve social rights, especially health, pensions, education, housing and access to public utilities.

I mention examples related only to health. In essence, the decisions of the Court have led to the following rules.  Any person who has received from her physician a prescription for a diagnosis exam, a drug, a surgery or a treatment shall not be deprived of access to the corresponding medical service because of a lack of private money. If the service is not covered by the health plan and the patient lacks personal resources to pay for it, the private insurer must finance the service and then recover the money from a public solidarity fund.

A structural injunction ordered that the subsidized health plan for the poor must be equal to the health plan for people with capacity to pay and shall fit the health needs of the population. The health system in Colombia, which has a coverage of more than 95% of the population, was reformed to comply with the structural orders of the Constitutional Court.

I now turn to some examples of judicial protection of indigenous peoples’ rights. All cultures have equal dignity. Cultural diversity should not only be respected but also promoted.

A few cases may illustrate the implications of taking seriously ethnic and cultural diversity. If an indigenous people believe that oil is the blood of the land, the private company that was doing exploration in its territory cannot continue to do so, without previously obtaining the consent of that community. In fact, the oil company had to stop and move to another place.

The laws of an indigenous people can authorize the autonomous indigenous jurisdiction to impose sanctions that in the eyes of the predominant Western culture would be inadmissible (for example, to punish an adult offender in public with lashes that represent a purifying light beam) whenever this sanction does not involve destruction of human life, slavery, torture or gross violations of due process in the imposition of sanctions.

Acts of the state, even legislative bills presented to Congress, which could have an impact on indigenous  peoples must be subject to prior consultation with the legitimate leaders of the indigenous peoples. Otherwise, the act is unconstitutional, and several have been so declared.

Maybe an anecdote is better than continuing to give examples. One of the most moving moments I had as a justice of the Constitutional Court came about when the Government introduced a constitutional amendment restricting the powers of the Court to protect social and cultural rights. The indigenous people of different parts of the country undertook a long march to Bogota, surrounded the courthouse in order to protect with their batons the Court from the threats coming from Congress and the Executive which wanted to curtail the Court´s powers. Magically, the amendment was not approved.

These three groups of cases explain what someone – whose name I prefer not to mention – told me in Havana during the negotiations of the agreement on transitional justice: the guerrilla has been stricken by effective military operations but is not defeated militarily. Yet it has been defeated in the battle for political legitimacy. In part this was the result of a complex combination of factors such a as the emergence of new political discourses, steady economic growth, accelerated social modernization, and significant reduction of poverty. But the battle of legitimacy could not have been won without the concurrence of the 1991 Constitution and the trust of the people on the Constitutional Court as a forum of principle that will be responsive to their demands and protect their constitutional rights.

The following data illustrates the point. Before the Constituent Assembly and the adoption of the Constitution in 1991, polls showed a worrisome response to the following question:

With which of these statements do you agree: (a) it is important to preserve the status quo, (b) there should be gradual reforms, or (c) the only way to make a real change is through a revolution . Half of Colombians chose the third in 1990: revolution. Today support for the guerrilla movement is less than 5%.

This is due not only to the atrocities that they have committed, but in good part to the fact that Colombia underwent an accelerated transformation through institutional channels.

Words clearly were more powerful than arms. Surprisingly, legal words spoken by citizens and interpreted by judges proved to be more effective than political violence in producing change and in responding to social demands.

Transformative social constitutionalism hand in hand with accessible responsive judicial review played a decisive role in winning the battle of legitimacy.


For sixty years, Colombia has been building the road to peace. A path to follow did not exist. It had to be constructed by three generations that did not know what unexpected challenges they would have to face.

The building blocks have been constitutional blocks. Sometimes constitutional amendments, sometimes judicial decisions. They were assembled to respond to the specificities of our context and the needs of peace. They have fulfilled crucial functions in the thousand miles journey to peace. Still a partial peace, that gradually has become a more comprehensive peace. In this endeavor, constitution making became distinct from constitution drafting.

Constitution making did not end with the adoption of the text of the 1991 Constitution. The drafting concluded, but the constitution making continued. It did so by the act of millions of citizens who by claiming their rights provoked continuous constitutional creation mainly by responsive constitutional judges. This  has been our path: active participation of citizens in a turbulent constitutional polis, gradually emerging out from what we may call the open constitution. Open for equal dignity, open to social needs, open for peace.

Manuel José Cepeda Espinosa is President of the International Association of Constitutional Law (IACL).