Colombia’s Critical Juncture: The Communicative Origin of the 1991 Constitution (original) (raw)
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La coyuntura crítica colombiana: el origen comunicativo de la Constitución de 1991
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Se dice que las Constituciones de la Colombia del Siglo XIX eran cartas de batalla que aplacaban la confrontación militar, pero al mismo tiempo contenían la semilla para el siguiente enfrentamiento. La Constitución de 1991 rompe con esa tradición, en tanto esta no es percibida como una carta de batalla, sino como un pacto de paz. A través de una metodología de política comparada, este artículo contrasta el proceso constitucional de 1991 con otros escenarios de profunda reconstrucción institucional para argüir que lo que hace que la Constitución de 1991 sea diferente a aquellas cartas de batalla fue el tipo de crisis que llevó a la constitución de la Asamblea Nacional Constituyente, su origen en un movimiento popular comprometido con una acción comunicativa y, por último, su carácter inclusivo y deliberativo, en el que se escuchó a grupos tradicionalmente marginados.
This paper analyses the effect of the different perspectives in the Colombian constitutionalism about the Peace Process Final Agreement, reached between the government and the Farc guerrilla to end the armed conflict. Particularly, the enactment of the Special Legislative Peace Process (SLPP), a fast-track procedure developed to implement the new normative framework based on the peace agreement, is studied. We argue that this normative piece, in practice, acts as a device that embodies the role that diverse actors have given to the concept of the Constitution. Despite, of the arguments elaborated to justify the enactment of the constitutional amend that incorporated the SLPP to the Colombian Constitution, this essay show that there is still a deep disagreement about the meaning of the Constitution in opposing sectors of the Colombian society, in which some sectors perceive the Constitution as a rigid limit, whereas others see it as breakable wall.
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At the beginning of the 1990s, Colombia held its first publicly elected National Constituent Assembly. The new Constitution of 1991 was seen as the key to end decades of political crisis and armed conflict through inclusivity in the bargaining of a new political settlement. Although the Assembly clearly failed to achieve that objective, it is still worth asking to what extent the primary goal of increasing inclusivity in decision-making has been reached. In order to take stock of this unique experience in Colombian history, this paper conducts an analysis of the actual degree of inclusivity in all four phases of the process: the preparation, negotiation, and the final codification and implementation of the new Constitution of 1991.
Colombia, from failing state to a second independence: the politics and the price
Amid social and political conditions that could well lead to Colombia being described in the terms of a failed state, the country's electorate chose Álvaro Uribe as its thirty-ninth president in 2002, and again in 2006, preferring to keep in office a man who seemed to be putting the country together again, rather than respecting the constitutional prohibition against consecutive presidential terms. Though his presidency was marked by scandals and irregularities -most notably, the falsos positivos (false positives: young, poor Colombian civilians, assassinated in cold blood by the zealous armed forces and listed as guerrilla kills) -Uribe enjoyed approval ratings previously unknown in Colombian history. He is in fact credited with giving Colombia its 'second independence', and his leaving office was, for many, tragic. Here, I present an explanation for this paradox, analysing an aspect of Uribe's discourse for the way it contributed to producing a shared national sentiment by articulating a social imaginary with limited possibilities for making sense of Colombia. Drawing on Geertz, Durkheim and Brubaker and the concepts of hegemony and identification, I elucidate the effectiveness of Uribe's discourse of the nation in a context of a long experience of frustration and decadence, and show why and how so many Colombians could, at least for a time, give their overwhelming support to a regime wherein murder was authorized, unacknowledged as anything more significant than the price to be paid for that second independence.
Nation-State Building in Colombia: Reflections and Lessons Learnt in a Time of Crisis
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Nation-state building in Colombia took place in a scenario of disputes between illegal, armed actors, political instability, an insurgent struggle, drug trafficking and social inequality. This complicated the implementation of models of national cohesion, state modernisation and the establishment of democracy projects that in many cases had an impact only in urban centres and were totally unknown in the rural periphery. However, there were also policy proposals that sought inclusive and transformative reforms of the status quo. This essay presents the Colombian case as an example of the current European moment. The Colombian expansions and contractions in crisis scenarios planted responses to armed conflicts, an invaded politics of neopopulism and the rise of fake news. In this sense, migratory processes, the emergence of separatist policies and the rise of extremist and populist parties in Europe reflect the previous experience of Colombia, a country that turns its crises into a vehicle to project itself into the future.
The 1991 Constitutional Reform: Prospects for Democracy and the Rule of Law in Colombia
1992
is Chairman of the Board of Directors of the American Association for the International Commission of Jurists. He has conducted missions for the I.C.J. in several Latin American countries and authored reports on Nicaragua, El Salvador, Guatemala and Colombia. He is also an author of Human Rights & Foreign Policy and Hungarian Constitutional Reform and the Rule of Law. ** Anne Stetson, Esq., is a member of the New York bar. I These delegates were chosen through direct elections pursuant to a national referendum. 2 Speaking at the Constitution's inauguration ceremony at the Assembly, President Gaviria described the document as a "peace treaty" among Colombians. Message by the President of the Republic, C~sar Gaviria Trujillo, On the Occasion of Adjourning the Sessions of the National Constituent Assembly, 14 (July 4, 1991) (Eng. trans.) (on file with the Case Western Reserve Journal of International Law). 3 For a discussion of Colombian constitutional history, see generally DIEGO URIBE VARGAS, LAS CONSTITUCIONES DE COLOMBIA (1977); JAVIER OCAMPO L6PEZ, 1QUE ES LA CONSTI-TUYENTE? 78-114 (1990). 4 Modest reforms to the 1886 Constitution have been made over its 106-year tenure. See infra note 49 and accompanying text. 5 CONSTITUCI6N DE COLOMBIA art. 55 (1886) [hereinafter 1886 CONST. COLOM.] 6 Id. art. 214. 7 Id. art. 171. 8 Id. art. 176. Vol. 24:139 9 Id. art. 177. 10 Id. art. 58. 11 Id. art. 136. The Council of State had jurisdiction over civil claims against the state, including cases involving alleged liability for human rights abuses committed by public authorities under states of siege. Id. art. 141. See also LAWYERS COMMITrEE FOR HUMAN RIGHTS, COLOMBIA:
Revista Republicana
This article analyzes the legal, political and historical nature of the plebiscite and its relationship with fundamental rights. The study has a comparative approach, of theoretical, conceptual and critical reflection on the plebiscite as a mechanism for legitimizing political power and, at the local level, on its connection with the search for peace. And he concludes that the comparison between the plebiscites of 1957 and 2016 is useful to show, on the one hand, that in Colombia the characteristic features of this mechanism in the universal history of the 20th century have also been revealed. That is, despite its foundation in direct democracy, due to the use that can be given to manipulate the popular will, the plebiscite can be useful for Bonapartist or Orléanist and presidential systems, as well as for interests contrary to republicanism and theories of democratic rights like those of Luigi Ferrajoli. On the other hand, in this country, with the lure of the end of violence as a ...
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This essay aims to utilize the concept of conviviality for connecting the coexistence of seemingly contradictory phenomena in Colombia. It argues that while conviviality implies a normative content – a society in which members do not slaughter each other is better than one in which members resort to violence – the meekness of that normative claim suggests that it is better used as an analytical tool that seeks to connect the contradictions that coexist in the real lifeworld. Colombia’s history of violence and democracy is such a contradictory case. Comparativists have situated Colombia’s deficits on the “extra-institutional playing field”, lamenting that it is a “besieged” or “threatened democracy”. Conviviality helps us to specify these “extra-institutional” defects by suggesting impediments exogenous and endogenous to the state-building logic of the Colombian nation-state.