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By Martha Maya, a Colombian lawyer with a Masters degree in the Economic Analysis of Law from the University of Bologna. She formerly served as the Chief of Staff to the High Commissioner for Peace in the Colombian Government’s peace negotiations with the FARC guerrilla. She is currently a columnist with the Colombian independent news site La Silla Vacia, and a member of the Post-Conflict Brain Trust for Colombia at the Institute for Integrated Transitions. She is a member of the Constitution Transformation Network.
On 2 October 2016, Colombian citizens will have the opportunity to endorse an historic Peace Agreement — the ‘Final Agreement to End the Conflict and Build a Stable and Lasting Peace’ — which will hopefully put an end to more than 50 years of armed conflict. In the last step of its search for peace, the Colombian Government will submit the whole text of the final agreement to a vote of the people.
The need for this vote arises from the agreement itself, which always countenanced a ‘citizen endorsement mechanism’, combined with a promise that the President made to the people. To fulfill this requirement, the Government has opted for a ‘special plebiscite on peace’. I will outline here the context for the plebiscite in the peace process and in Colombian legal tradition, as well as judicial consideration of challenges to its validity. This will provide the reader with some understanding of why this unorthodox process is being attempted in Colombia, and what it means for the prospects of a ‘lasting and durable peace’.
Background: The Peace Agreement
After four years of negotiation, delegates from the Colombian Government and the guerrilla of the Revolutionary Armed Forces of Colombia (‘FARC’) reached a comprehensive and ambitious Peace Agreement on 24 August 2016 (see unofficial English translation of the agreement agenda here). The agreement seeks to put an end to decades of conflict and to deal with the atrocities committed throughout this period. This task isn’t easy since the armed conflict has left some seven million victims of different crimes against humanity and war crimes. However, the agreement with the FARC opens a wide window for a sustainable and lasting peace, and contemplates important transformations that intend to close the cycle of violence.
In 2012, President Juan Manuel Santos announced the beginning of the peace negotiations. He explained that the negotiations and agreements on each point would be kept private until conclusion, at which point every word agreed would be made public and widely distributed. He then promised that Colombians would have the last word via a ‘mechanism for citizen endorsement’.
Since the beginning of the process the issue of citizen endorsement raised strong differences between the parties. The Government was thinking about a participatory mechanism such as a plebiscite or a referendum, whereas the FARC was more ambitious and expected to have a Constitutional Assembly, pursuant to article 376 of the Colombian Constitution, to rewrite the whole constitution while incorporating the peace agreements.
Before resolving these differences they managed to agree to:
Beyond the differences of the FARC’s and the Government’s approach to the endorsement mechanism, the mechanism itself presented further practical and legal obstacles to overcome. Practical, because the President introduced an unnecessary hurdle to the entry-into-force of an agreement, given that he has a constitutional mandate to pursue every possible mechanism to accomplish peace (article 22) and can engage in and conclude peace agreements without public consultation (article 189). Indeed, given the long shadow of the FARC’s crimes over Colombian society, winning a national plebiscite by getting people to accept a transition deal and transitional benefits is a very difficult hurdle to surmount.
The citizen endorsement mechanism had then to be achieved via a legal institution that could overcome these obstacles, and this was not easy either. Ultimately, the debate about the Constitutional Assembly was replaced by an initiative orchestrated between the executive Government and the Congress, detailed below, and the guerrilla had no choice but to accept it.
Participatory Mechanisms in Colombia: Origin of the Special Plebiscite
Colombia has a very rich set of participatory mechanisms. Its Constitution was written in 1991 after citizens, young people, and political parties mobilised to call for a Constitutional Assembly. The new Constitution contained a rich bill of rights that includes the right to elect, be elected and participate in decisions (article 40). As part of that right, the Constitution included a wide range of participatory mechanisms and left a window for the legislators to come up with more. Among these mechanisms were the different types of referenda, the plebiscite, the recall vote, the writ for the protection of constitutional rights (‘tutela’ as it is called in Colombia), the popular legislative initiative, and the open council meeting.
The Constitution establishes that these processes have a participatory threshold for validity, out of respect for abstention as a right of every citizen. The participatory thresholds are determined by article 41 of Statutory Law 1757. In a country with 32 million registered voters, where not even half make it to the polls in the most contested elections, reaching the participatory threshold is usually an unrealistic possibility. Indeed, the most popular President in recent history, Álvaro Uribe Vélez, tried to pass a referendum in 2003, and despite winning a majority for his side failed to meet the participatory threshold.
The strongest and most binding mechanism of those mentioned above is the referendum, where people vote to include a specific text in either a law or the Constitution. A plebiscite, in contrast, is considered a sort of public consultation and is intended to orientate the President to the population’s will.
Why a Special Plebiscite?
There were practical challenges to the Peace Agreement for which neither a plebiscite nor a referendum were entirely suitable: first, to condense 297 pages and several different subjects and measures into one question (yes or no) whilst still being legally relevant; and second, to see that the mechanism would not be voided by a failure of participation.
The problem was that in a referendum people have to vote to approve the inclusion of a certain specific text in a law or in the Constitution, whereas a plebiscite is not equally binding. Both participatory thresholds, 25% for the referendum and 50% for the plebiscite, were extremely hard to reach and gave a privileged position to the right of abstention. Therefore, neither of the two mechanisms would have entirely suited the needs of the Peace Agreement.
After considering that the answer was not in the existing law, the Congress passed a bill to amend the Constitution and create a special mechanism for the public endorsement of the Agreement. It was called the special plebiscite on peace and was a combination of different elements of a referendum and a plebiscite. This special mechanism could be used only in order to approve the Peace Agreement, changed the requisite from a participatory to an approbatory threshold of 13% of the electoral roll, and established that the affirmative decision would make the implementation of the Agreement and its legal and constitutional development an obligation of the President.
Special Plebiscite Faces Special Challenges
The plebiscite for peace already won its first battle, overcoming a constitutional review in June 2016. The Constitutional Court reached an historic decision where it enabled the special plebiscite on peace to exist, using an evolving understanding of the guarantee of the right to abstention, balancing its historically strict perspective to underline the importance of enhancing participation. It was a significant judicial decision both for the plebiscite and for the future of Colombia’s peace and democracy.
First, the Court modulated its previous precedent and decided that incentivising participation took precedence over the right to abstention. Second, it established that the citizens could not be consulted about their will towards the right to peace. As peace is a fundamental right it is unavoidable, therefore the question could not be posed as whether they chose peace over war. Third, the whole of the Peace Agreement, even one that encompasses a wide range of subjects, can be voted on a single yes or no question. And finally, it determined that a ‘yes’ decision was strongly binding on the President but also highlighted the ‘legitimacy’ of a decision by plebiscite, which would be something that future governments would have to consider in their policy development. In contrast, a ‘no’ decision will prevent the Presidency from pursuing the implementation of this agreement, without affecting its constitutional powers to engage in future peace negotiations.
The legitimacy and applicability of the Peace Agreement now relies on the results of the special plebiscite of 2 October 2016. If the answer is yes, the President will have all the public and legal support to start the implementation of the agreements, and future governments would find it difficult to act against the peoples’ will. If the answer is no, the legal opportunities for implementation of the current agreement are narrow and the possibilities for success are hard to determine.
Whatever the result, the case of Colombia’s special plebiscite on peace opens a window for interesting legal questions and debates regarding participatory mechanisms where historic decisions are left to a majority vote of the people. How binding can a plebiscite really be? Do these debates empower the citizen and strengthen democracy? Will this debate and electoral process contribute to building a stable and durable peace?
These questions won’t be answered on 2 October but at least we’ll have a ‘yes’ or ‘no’ to the Peace Agreement.