July 20, 2016
On Monday, July 18, in an anxiously-awaited decision, Colombia’s Constitutional Court unanimously approved the statutory law establishing the plebiscite as the mechanism by which the Colombian electorate will approve or reject the Havana peace accords negotiated by the Colombian government and the FARC-EP. (Read it here.) This is the first time in the history of Colombia’s many peace accords that an agreement between the government and an armed group will be subject to the approval of the Colombian populace. In an earlier advance on June 23, the parties had announced that they would accept the ruling of the Constitutional Court regarding the appropriate endorsement mechanism for the Accords. (See more here.) This acknowledgement by the FARC-EP of the authority of a State institution was unprecedented, and a clear sign of change on their part. View the public hearings in late May organized by the Constitutional Court as they reviewed the law:
In this week’s decision, the Constitutional Court found no procedural irregularities in the statutory law. It ruled on a number of aspects of the law. First, it approved the proposed required threshold of 13% for the Accords to be approved. This means that at least 4.5 million voters–13% of the electorate–must vote “yes” in the plebiscite for the President to be bound to implement the Accords. The Constitution establishes no minimum threshold of votes for a plebiscite, but the court found the 13% threshold to be “reasonable,” according to María Victoria Calle, the president of the Constitutional Court. (See more here.) Colombia’s voter turnout is traditionally extremely low–in the last Congressional elections, 59.9% of the qualified electorate did not vote, up only slightly from 2011. (More here.) Blank votes will not count toward the threshold for the plebiscite.
Second, the court ruled that, for this one time only, the prohibition on the participation of public employees in campaigns relating to the plebiscite, will be temporarily lifted. (This countered the recommendation of Judge Luis Ernesto Vargas, who, in his massive brief to the Court (see my prior post) had proposed more stringent limits on government employees’ involvement in the plebiscite campaigns. Nonetheless, in its current finding, the court maintains some limits–in their campaigning, public employees will be not be allowed “to incorporate content that promotes a party, political movement or significant group of citizens or that relates to the promotion of candidacies to popularly elected offices.” (More here.)
Third, in accordance with the Constitution, the court established that the publication of the final peace agreement will be realized “simultaneously with the presentation of the report of the President to the Congress regarding his intent to convene a plebiscite, so that the Congress and the people can know in a timely way the content of what was agreed.” (See more here.) The accord must be available to disabled and non-Spanish speaking populations in Colombia as well. The Congress then has a maximum of one month to approve the report, after which Santos has up to four months (from the time he presented the report to Congress) to convene the plebiscite.
Finally, in a 7 to 2 vote, the court established that the vote will be binding for the President of the Republic, but not for the other legislative or judicial powers. María Victoria Calle, the president of the Constitutional Court, explained that a plebiscite approving the peace accords does not automatically incorporate the accords into the Constitution or into Colombian law. (See more here.) A favorable vote in the plebiscite will, however, initiate a fast-track procedure to do so under the Legislative Act for Peace approved in the last Congressional session.
Legislative Act for Peace
The Legislative Act for Peace, approved on June 15 after eight rounds and nine months of oft-times contentious debate, is, according to President Juan Manuel Santos “one of the most important constitutional reforms in our history.” (Read his statement here.) It is this law that provides the mechanism by which the Peace Accords signed in Havana will become law. (See background here.) The law grants the president extraordinary powers to issue legally binding decrees to implement the peace accords, shortens the time required for Congress to enact statutory laws and reforms, and grants the Peace Accords the status of a Special Accord, protected under the Geneva Conventions. (See more here.)
In the final hearing to reconcile the House and Senate versions of the draft legislation, ex-President Alvaro Uribe made a last-ditch effort to torpedo the bill, arguing that the Government was turning the country over to the FARC, and that the plebiscite would not give the citizenry sufficient opportunity to weigh in on the individual aspects of the peace deal. He also objected to the special fast-track powers given to the President to implement the accords. (More here.) The Senate plenary approved the bill, nonetheless, with Minister of the Interior Juan Fernando Cristo underscoring that the law would not go into effect unless and until the Accords were ratified by the electorate. Only at that point will the peace accords will be incorporated into the body of protected legislation known as the “Constitutional block.” See below the closing arguments of Senator Uribe and Interior Minister Cristo:
The overall package must be weighed in its entirety against the costs of continuing the war. Voting piecemeal on the Accords through a multi-question referendum would seemingly undermine a carefully crafted, integrated package that in the course of four years of negotiations has sought to find a balance of justice and truth for victims, while also recognizing that the peace agreements are the product of a negotiated settlement, not an imposition by one winning party over a losing party.
Today, July 20, a new legislative year begins in Colombia. The Congress will have a full plate, with an agenda that will include overseeing the implementation of the changes that will be required for peace in Colombia to be sustainable. The agenda will include an ambitious package of laws and constitutional reforms to translate into reality the agreements reached in Havana to put an end to half a century of war. (See “La legislatura de la paz.”) A fast pace will be required, as the special legislative procedures approved earlier cut in half the time needed to approve draft laws, make Constitutional reforms, and incorporate the accords into Colombian law. “This is unheard of, unique, and special, and it will be historic, because we will have the opportunity to process, in a short time, a profound transformation in national life,” Interior Minister Juan Fernando Cristo was quoted as saying. (See more here.)
With the Congress back in session, the Constitutional Court must now forward its decision–Sentencia C-379/16– to the Presidents of the Senate and House. They in turn will forward it to President Santos.
The ball is now in the court of the peace delegations in Havana. Before any of the mechanisms that are now in place can be engaged, the parties must produce a final agreement to end the hostilities and put an end to Colombia’s internal armed conflict. Rafael Pardo, Colombia’s Senior Presidential Advisor for the Post-Conflict, announced in Washington last week that he expected the agreement to be reached in the latter half of August. (Download his presentation at the Wilson Center or view the session here.) Only once the parties have signed (or at least initialed) the agreements, can the President present his report on the Accords to Congress, announce his intent to hold a plebiscite, and begin dissemination of the content of the Accords. Then the electoral infrastructure will kick in, establishing equitable norms for equal media access and such for each campaign.
With a “yes” victory of the minimum required votes, the Accords will then be transmitted to the Constitutional Court, which will rule on the constitutionality of the particular provisions of the Peace Accord, including for example, the transitional justice components. Once reviewed by the Constitutional Court, the Congress will be required to make the required legislative changes to allow implementation of the agreements. If a “no” vote wins, i.e., the plebiscite fails to garner the required threshold of 4,6 million votes, the President will not be bound to the Accords; although others can still implement the agreements. (See more here.)
As the guns on the battle ground go silent, a new battle for the ballots is just beginning…