The Proposal for a National Constituent Assembly in Colombia

Gonzalo A. Ramirez-Cleves

*Universidad Externado de Colombia*

On 15 March 2024, the President of Colombia, Gustavo Petro, indicated in a speech in the city of Cali that if his government’s legislative proposals were blocked in the Congress, the way forward was a National Constituent Assembly. On 18 March, the President gave an interview to the newspaper El Tiempo, where he explained that what he wanted was to carry out a constitutional reform through the process of the National Constituent Assembly, and not a change of the Constitution. He also indicated that he did not make the proposal to seek re-election, nor to extend his presidential term. This blog post will explain President Petro’s proposals as we currently understand them, and explore how they fit with the process of constitutional amendment set out in Colombia’s Constitution.

On the same day as the President’s interview with El Tiempo, a document that the Presidency had delivered to the media titled, “ABECÉ constituent process” was circulated, which indicated that the National Constituent Assembly is a democratic mechanism contemplated in the Constitution of 1991 and that the constituent process “…does not have to do with recovering the bills that Congress sinks".

Likewise, it was indicated in the document that the constituent process is to be used to reform the Constitution, or to address aspects that the 1991 Constitution could not introduce at the time. On the other hand, six points are explained in the document that according to the government require attention through a constituent process:

1. Effective implementation of fundamental aspects of the 2016 Peace Agreement such as Agrarian Reform and solutions to the problem of illicit drugs;

2. Short-term guarantees of basic living conditions for all citizens, including in relation to health, pensions and access to water;

3. Judicial reform that brings the judicial system closer to citizens, makes it more effective and has a restorative dimension in terms of truth and guarantees of non-repetition;

4. Proposals around territorial reorganization;

5. Climate change and decarbonization of the economy; and

6. Establishing a dialogue around the end of violence and reconciliation.

The document also contains a point titled: “No to reelection” which states: “The President insists that he is not seeking presidential reelection nor the extension of his mandate and assures that he will not promote reforms or a constituent assembly in this sense". The document also highlights that the National Constituent Assembly may not affect private property.

The document also briefly explains the intended process. It is based on the idea of calling the people to “Open Town Halls” (Cabildos Abiertos) as a participation mechanism. People are urged to debate and participate in discussion of the topics. Finally, the document indicates, regarding the timing of the constituent process, that “It is not tied to 2026, but it could be decisive for the 2026” (the next Presidential elections in Colombia are scheduled to be held in 2026).

Subsequent to the 18 March document being released, further points were added to the proposal, so that nine points are now being proposed for discussion at a National Constituent Assembly. These include the primacy of employment and production in monetary policy; maintaining the independence of the Bank of the Republic; the separation of political and private financing; the idea of establishing basic conditions for the elderly population; and the expedition of the Labor Statute, providing employment rights in the country and guaranteeing equal pay for women.

Although the 18 March document seems more like a draft than a definitive text of what could be a “road map” for a National Constituent Assembly, it seems that for now what the President intends is not to convene a National Constituent Assembly in accordance with article 376 of the Constitution. Instead, it seems, the mechanism of open town meetings will be used as an alternative method.

It must be taken into account that article 376 of the Constitution establishes in a regulated manner the way in which a National Constituent Assembly is convened in Colombia. This provision states that:

“By means of a law approved by the members of both Houses, Congress may stipulate that the people by popular vote decide whether to convoke a Constituent Assembly with the jurisdiction, term, and composition that the same law shall determine.

It shall be understood that the people have convoked an Assembly if at least one-third of members of the electoral rolls approve the convocation. The Assembly shall be elected by a direct vote of the citizens in an election that may not coincide with another. Upon the election, Congress’s ordinary powers to reform the Constitution shall be suspended for the period specified for the Assembly to complete its work. The Assembly shall adopt its own rules of procedure”.

The drafting of this article has given rise to the doctrine that the Colombian Constitution envisages two types of National Constituent Assembly: one that can draft a new Constitution with full authority over any topic; and another of partial competence, when the law that establishes the Constituent Assembly refers to one or several topics, but not to a total reform of the Constitution.

As noted above, the current proposal apparently will not initially choose the path that is provided for in the Constitution. Presumably this is because the President may find this procedure risky as the Government does not have majorities in the Congress. A law that convenes a National Constituent Assembly according to the constitutional process must be approved in four debates by the majority of the members of each of the Houses of Congress. It must then undergo constitutional review in the Constitutional Court, and then would need to be approved in a referendum by a majority vote with at least a third of the current electoral roll voting positively (around 13 million citizens today, a very difficult number to achieve).

The idea of resorting instead to mechanisms of participatory democracy, such as open town halls, may look like the use of crowdsourcing in the constitutional amendment process. The use of the participation mechanism of open citizen councils to discuss issues a a kind of “mini public” was a mechanism used in Iceland in 2008 and to a certain extent in the failed Chilean constituent process with the “cabildos constituyentes” (‘cabildo-making’) where some topics were discussed before the constitution-making process began.

If President Petro proposes to use these alternative procedures in order to avoid the art 376 constitutional procedure, the mechanism would be unconstitutional. However, if what is intended with the use of the open town hall is to begin discussion and consolidate a proposal, while potentially using the article 376 procedure later to formalise proposals for amendment, this would be a possibility, and might reinforce the legitimacy of such proposals in subsequent discussions in Congress.

The idea of the National Constituent Assembly proposed by President Petro is currently very poorly developed, and we will have to wait to understand what mechanism will be used, in addition to what has already been proposed. For now, what must be indicated is that a National Constituent Assembly cannot be used to avoid the obstacles that may be generated in Congress for the approval of the Government’s proposals. From my point of view, this could distort the idea that Constitutions are made with a basic consensus and might generate the belief that the constituent process is only being used as a strategy to evade the control and oversight of the other branches of government.

Gonzalo A. Ramirez-Cleves is a Professor at Universidad Externado de Colombia.

Suggested citation: Gonzalo A Ramirez-Cleves, ‘The Proposal for a National Constituent Assembly in Colombia’ IACL-AIDC Blog (9 April 2024) The Proposal for a National Constituent Assembly in Colombia — IACL-IADC Blog (blog-iacl-aidc.org)