Peace demonstration in Bogotá, Colombia, October, 12, 2016. Fernando Vergara AP/Press Association Images.
The big question the Colombians are now facing is how to endorse the new peace agreement. Considering both the facts and the issues under discussion, there are at least three possible scenarios, each with its own political and legal advantages - and disadvantages.
Scenario 1: Popular endorsement
One of the proposals that have been advanced for endorsing the new agreement – actually included in it - is to hold a new plebiscite. Those who promote it, do so on the basis of Constitutional Court Judgment C-379, which states that given the people's turndown at the first plebiscite, the President can renegotiate a new one (he has already done so) and submit the new text to the people’s consideration.
The main advantage of this mechanism is that it would legitimize the new text agreed by the government and the FARC through the expression of the Colombians will at the polls, backed this time by a broad agreement that includes in principle the feelings of all, including those who rejected the previous version. In practice, however, the great disadvantage of this option is that its processing and preparation would take at least four months – much too much in a context of great uncertainty. In addition, the result could pose too high a risk for the government.
Open town halls
This option, which has been entertained by several sectors, including the government, offers the possibility for citizens to participate directly in reviewing and discussing the commitments included in the new agreement, through the Municipal Councils and the Departmental Assemblies. The agreement itself contemplates this option in sub-point 6.6. The advantage of this mechanism, as academics Eduardo Cifuentes and Rodrigo Uprimny have argued, is that it would not only bring citizens closer to local authorities in the peacebuilding process, but also help in assembling the proposal with formal participation in the territories. As former Minister of Justice Yesid Reyes has said, it is "a way for citizens to express themselves through discussion and voting."
It is however unclear how an instance of deliberation could help in ratifying something that cannot be amended, for the new agreement, according to the government and the FARC, is final. The open town halls (cabildos) do not seem viable as a popular endorsement mechanism but, rather, as an alternative for the implementation of the agreement. Notwithstanding this, the option is inconvenient in practical terms because it requires collecting 5.000 signatures of the national electoral census. To this should be added the fact, as the Fundación Ideas para la Paz (FIP) has pointed out, that this mechanism lends itself to addressing broad agendas the discussion of which could be endless, and there is the risk that the process be co-opted by traditional regional leaders, resulting in patronage.
- National Constituent Assembly: This is a mechanism that the FARC and some opposition sectors have proposed several times during the peace process, with different aims. Although it certainly is a scenario where all the country’s political forces would converge, expressing the interests of the citizens, its convening would far exceed the purpose of endorsing the agreement, in so far as the agreement would be discussed all over again and would open the possibility of including topics that have nothing to do with the peace process.
- Referendum: It confers legitimacy, for it implies citizen participation on the peace issue, but it would not, strictly speaking, meet the aim of popular endorsement of the agreement, since it is a mechanism designed to consult citizens on the approval or repeal of a law. In addition, it would entail submitting for review and endorsement the full text of the agreement, which is impossible in practical terms.
- Popular Consultation: It is aimed at consulting citizens on matters of vital importance, whether national, departmental, municipal, district or local. It could work on paper, for its purpose would conform to the pursuit of peace as a national interest. But in procedural terms, its risks are similar to those of the plebiscite and, in addition, it is time-consuming: it requires that it be convened and endorsed by Congress, which can take 3-4 months.
- Popular initiative: This participation mechanism enshrined in the constitution – and proposed by FIP’s coordinator, Sergio Guarín - could be established by a bill submitted to Congress. For Guarín, it has the advantage that it is not a method for supporting or rejecting the President, it would not be affected by other controversial issues being discussed in Congress - such as the tax reform -, and it would allow the coming together of political and social leaders in an atmosphere of deliberation. The initiative could result in direct implementation of the agreement, or in authorizing the President to implement the Legislative Act for Peace.
Scenario 2: Endorsement and simultaneous implementation
The idea of having Congress endorse the agreement is a perfectly valid one, since the legislative body of the Colombian State represents, according to the constitution, the interests and the will of the people. The constitution adds that its functions are the passing of laws, constitutional changes, and exercising political control. The new agreement could be considered as being similar to a legal package, which would open the door to implementation through legislation.
This mechanism presents some advantages, such as:
- It is not necessary to take to the polls an agreement that has already experienced a major setback, as did the political forces that supported it.
- President Juan Manuel Santos’s National Unity party enjoys enough politica support in Congress for the agreement to be approved.
- It would be a swifter and undoubtedly speedier endorsement mechanism than a plebiscite. In this sense, it would meet the government’s aim to proceed as much as possible with the implementation of the agreement.
Despite the above, there is a risk related to the fact that representatives of the No vote at the previous plebiscite (former president Álvaro Uribe’s Democratic Centre) in Congress could manage to delay the endorsement of the agreement. However, bicameral voting makes it highly unlikely that this would happen, because the majorities in Congress are on the Yes side.
On the other hand, it is doubtful whether it would be legitimate for Congress to carry out the endorsement, since the parties in the negotiation established, from the very beginning of the talks, that a mechanism of popular participation would be used to legitimize, inwards and outwards, what was agreed at the negotiations. If we add to this the fact that some representatives of the No camp have stated that the New Agreement does not include their substantive issues, the legitimacy of Congress as an endorser is called into question.
Decrees with force of law
Another means that could be of use to endorse the agreements would be the decrees with force of law, which were defined by the Council of State as "(...) those issued by the President which have the nature or connotation of a law, for they are issued exercising exceptional legislative functions. Therefore, these acts have the same hierarchy as a law passed by the Congress of the Republic."
This endorsement mechanism has some advantages. On the one hand, the President, if Congress previously allows him to legislate exceptionally (which is not impossible, given that National Unity has a congressional majority), could incorporate the agreement in the national legal system without undergoing any changes: it would not have to go through the normal parliamentary process, and thus would not suffer from congressional erosion. On the other hand, the agreement would be tantamount to any law in the national legal system, because the constitution accepts that the decrees issued under these circumstances have the same hierarchy as any law passed by Congress. In this sense, any measure contravening the decree would necessarily have to be of a constitutional order.
However, there are some disadvantages derived from this mechanism, since the law-ranking decrees have to be reviewed by the Constitutional Court. This could represent a difficulty if the Court were to define or limit the agreement against the will of the signatory parties. On the other hand, from a political point of view, the agreement would lack the popular backing which both the government and the FARC have always said they counted on, before and throughout the negotiation process. If this was the chosen mechanism, there would undoubtedly be a negative turning point for the outgoing Government and the new political force arising from the FARC transition.
Scenario 3: No endorsement
Pronouncements by the law courts on lawsuits filed against Legislative Act 1 of 2016
Before the holding of the October, 2, plebiscite, a number of judicial appeals were filed before the Constitutional Court and the Council of State by different political and social sectors. These appeals were mainly suits which sought to repeal Legislative Act 1 of 2016, known as Peace Act, or some of its articles containing procedures, initiatives, powers and other instruments to proceed with the implementation of the final agreement. Some of these appeals were accepted, others were rejected.
Among those still in progress, it is worth highlighting those that were filed by Democratic Centre delegates Óscar Iván Zuluaga, Iván Duque and Carlos Holmes Trujillo against article 5 of the Legislative Act, which makes the implementation of the agreement depend on a favourable result at the plebiscite. Even though the voting is now a thing of the past, the truth is that the resources used are still being examined, and that there is a possibility that the courts will rule in favour of these appeals. The implication of this would be that the condition could be overturned, and so the results of the plebiscite would be without effect – which would mean that the implementation of the new agreement could go ahead without having to submit it to any endorsement. Paradoxically, the political cost of this would fall on the promoters of No who, in their attempt to stop the endorsement, could end up favouring its implementation.
Direct implementation through Congress
One of the alternatives that is being considered for the approval of the new agreement is the direct implementation of what was agreed upon through Congress. This option has the advantage of being a relatively speedy process that would require the government to submit for approval by fast-track procedure the bills which the agreement considers to be a priority.
There are however two problems in this. On the one hand, it would run counter to the spirit of Judgment c-379 of 2016, which suggests the need of a popular endorsement in case the No wins, and after a new agreement is renegotiated. On the other hand, it would increase the polarization in the country, which is already very high after the results of the plebiscite. The promoters of the No, seeing their claims ignored, would begin to spread a discourse of illegitimacy that could lead them to block what was agreed for the run-up to the 2018 presidential elections. This risk could somehow be minimized by the fact that the government has shown its acceptance of the results of the plebiscite, its willingness to open dialogue forums with the promoters of the No, to revise its proposals for adjustment and modification, and to include close to 80% of their observations, according to Humberto de la Calle, chief negotiator for the government. With this, the government takes for granted the endorsement after having listened to all the sectors, and proceeds to start to apply the commitments agreed upon.
Given the urgency of implementing the new agreement and ending the uncertainty generated by the victory of the No in the plebiscite, adopting mechanisms that have the disadvantage of generating more polarization and that take a long time does not seem viable. This is why the idea of favouring alternatives that save time and money takes strength. The debate is open and the solution will depend on the risks and opportunities that the Colombian government and the FARC decide to assume. Even so, for sure, there will always be dissenting sectors.