“We have managed to get this government to make Colombian society speak,” wrote President Gustavo Petro in X after the country talked, throughout the weekend, about a possible Constituent Assembly that he put on the table. “My proposals move the waters,” he added. It does not stop him that his constituent initiatives have failed to mobilize the majority of Colombian society and have been criticized by all living former presidents, former peace negotiators with the FARC, constitutionalists, opinion leaders, and a good part of the political party leaders. . “The historical role of Congress today is to process its convocation, if not, the constituent power, sooner or later, will do so,” Petro anticipates.
The president began to talk about mobilizing the constituent power last March, when his health reform collapsed in the Legislature, and he said that perhaps it was the political class that did not allow him to apply the 1991 Constitution: if “he cannot apply that constitution, because they surround him to not apply it and prevent him from doing so, then Colombia has to go to a national assembly constituent,” he said. Weeks later he spoke of a possible constitutional referendum to approve social reforms. More recently, he considered the idea of convening a Constituent Assembly through the peace agreement that was signed between the government and the extinct FARC-EP guerrilla in 2016. And, in parallel, a new point agreed upon in the peace negotiations between The ELN guerrilla and the Government speak of an ambiguous “great national agreement”: an initiative that left in the air the possibility that this is where a future constituent assembly is being put together.
Obvious former presidents of the right have spoken against the proposal – Álvaro Uribe, Iván Duque, Andrés Pastrana –, the liberals with whom there were once alliances – César Gaviria – and the former president who achieved peace with the FARC: “absurd” to use the agreement for an assembly, said Juan Manuel Santos. Even Ernesto Samper, the one closest to the Petrista left, assured on networks that “it is not possible to legitimize the call of a Constituent Assembly” under the current political conditions.
The constituent’s proposal is initially unfeasible because it requires majorities that Petro does not have: it must be processed through the Legislature (where the president is not guaranteed half of the votes); then it must be reviewed by the Constitutional Court (where it can fall); and then it must have at least 13 million citizen votes (more than Petro obtained in the first or second round). This is just when the president’s approval levels do not rise above 50%.
“Of course, if it comes to legal means, the proposal is stillborn, but Petro does not launch a balloon just because: he is not so naive to believe that he has majorities that no one sees,” says Nicolás Figueroa, professor of Law at the Universidad del Rosario and expert in constitutional law. For Figueroa, the president may be betting on generating some type of fear in the political classes (so that they are more open to his reforms), or he may be considering a different, extralegal way to reach a constituent assembly.
“The 1886 constitution also did not allow legal means to change it, the Seventh Ballot was an extralegal means to do so.” [en 1990], and Petro is aware of that: that is why he is now talking about mobilizing open town halls or student assemblies,” adds Figueroa. The student movement Séptima Papeleta pushed, more than three decades ago, to make a constituent by including an unofficial card in the 1990 elections. But although the students of that time inspired the process, to change an old text from the 19th century, It would be naive to think that they achieved it alone.
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“It wasn’t just the students: the Constitution of ’91 was also promoted by peace agreements, by a delegitimized traditional class that knew what it could lose if it opposed, even by the media that wanted that change,” adds Figueroa. The current constitution, which is barely 33 years old, “is considered the panacea” by a large part of public opinion, with the exception of some small groups on the extreme left (who see the text as a neoliberal agreement) or other extreme right groups. (who see it as a communist manuscript that talks about the social rule of law).
“The constitution has established itself in society, in political forces, and if anyone wants to break it, it is minority groups. So that extralegal route does not seem very feasible,” adds Figueroa.
Then there is the possibility that the extralegal route is to appeal to the peace agreements, that of the FARC in 2016, or those of the ELN or FARC dissidents in the near future: the president has spoken of making a new “great national agreement” with those who continue on the path of violence. However, Gustavo Duncan, professor of political science at EAFIT University, believes that this option “would be a double-edged sword: the president may be able to make the political argument, but Colombian society is not going to like that the new constituent comes from an Antonio García [líder del ELN] or an Iván Márquez [jefe de la Segunda Marquetalia]”. Márquez recently reappeared in a video in which he spoke of “rescuing the majesty of the primary constituent” and of “this new moment in which, thanks to divine providence and the brilliant idea of a president, constituent winds are blowing.”
For Duncan, President Petro has appealed to the constituent assembly after his national agreement failed (with liberal and conservative forces at the beginning of the Government), and his social reforms such as health reforms have collapsed. The president “is looking for a new breath, a boost, to make the changes he proposed. He talks about a referendum to get the reforms he wanted, after the peace agreements to reform, and I wouldn’t be surprised if later he talks about re-election to make the changes, because he realizes that he cannot go down in history as an irrelevant government. “That didn’t change anything.”
Duncan agrees with analysts who do not see citizen or political support to achieve legal or extralegal means that lead to a Constitutional Assembly. “But just because something is not probable does not mean that a problem will not arise: the political life of this country is going to be very deteriorated,” he adds.
“This call to the constituent assembly is inappropriate because it increases the corrosive polarization that we are experiencing. “Sectors of the right see it as the Petrista assault on democracy and sectors of the left as the beginning of the revolution,” wrote Rodrigo Uprimny, constitutionalist, on the initial proposal to a Constituent Assembly. Uprimny also called the proposal constitutional fetishism: that excessive attachment to the rules to achieve social changes, instead of focusing on what can be done with political will from the Executive. Petro does not seem to have that great attachment to the rules of ’91, but perhaps attachment to the rules of that imagined constitution that he can lead. Only he, however, seems attached to that imaginary. The rest of the country does not seem to have much interest, for now, in changing the 1991 Constitution.
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