Advances in Science

On July 4th, 1991, the National Constitution governing our country was enacted. To commemorate its thirtieth anniversary, Universidad del Rosario held a meeting led by Diana Valencia Tello, Professor of the Faculty of Law, with scholars, experts, and magistrates to reflect on these 30 years of history. The result of this meeting was collected in the book Reflexiones y desafíos de la Constitución Política de 1991 tras treinta años de su expedición (Thoughts and Challenges of the 1991 Political Constitution Thirty Years after Its Promulgation), published by Editorial Universidad del Rosario. Based on this text, and thanks to the lucid support of Professor Valencia Tello, academic editor of the issue, we prepared a small guide to navigate through the twists of our constitution.

Historical backgrounds
We must remember that after the liberal revolutions that took place in the Western world at the onset of the 19th century, law rose in the modern State as a means to organize all aspects of the political, social, and economic life of communities. The idea was to formulate regulations that were as objective, general, and abstract as possible to apply them equally among the population. This idealist attempt, though praiseworthy in principle, had a fundamental problem: as it was based on abstract equality, it did not consider the diversity of different social realities, thereby deepening all kinds of inequalities throughout the 19th century.

For instance, if we consider the Civil Code, we can see it establishes a principle of formal equality among people. This sounds great on paper, but in reality, there are vast differences in the population that we must take into account. To exemplify, there is notable inequality between the owners of the capital and those who own nothing. If we do not consider this, we run the risk of experiencing what happened in the 19th century: under the principle of equality before the law, big companies would hire many people in subhuman conditions and keep them “tied” in the new factories being consolidated in industrialized countries.

The inequalities deepened by this principle of equality caused a series of strikes and demonstrations at the end of the century, which led to rethinking the law. It then materialized in a new kind of law striving for material equality. This is the main characteristic that set off the Social State of Law, which began gaining popularity by the end of the 19th century and the beginning of the 20th century.

The Social State of Law aims to highlight the differences among people. To continue our line of thought, workers without capital would need special protection from their employers so that they do not abuse their dominant position. This was also the beginning of a law intervening more in the State, which sought to develop different industries, economic areas, or public services. The classical liberal State was thought of as a minimal State that would let people do and let things go their way, dividing public and private matters to leave the latter in the hands of the market. However, inequalities and the abuse of the dominating position exerted by the elites in power caused a shift towards the Social State of Law.

What happened in Colombia?

Since its birth as a nation, Colombia has experienced deep inequalities. During the 20th century, efforts were made to address these inequalities and consolidate a Social State of Law, albeit with little success.

A big part of the problem was that excessive centralism led to most resources generated in the regions staying in the main capital cities, while the remainder of the territory lacked State presence. There were no public services, and most of the population had no access to basic health and education services. Hence, the 20th century left Colombia with a big debt towards the regions and communities that were more affected by these inequalities, and assuring vital minimums for the population became essential.

In this context, the 1991 Constitution was enacted to change this situation. It is worth noting that the first article in our Constitution states that “Colombia is a Social State of Law.”

How was the 1991 Constitution enacted?
The Magna Carta ruling over Colombia was created amid a very complex scenario. The country was likely experiencing the most violent period in its history, which permeated deeply into all levels of society and led us to understand that a new juridical regime was urgent to achieve a more egalitarian State with equitable political participation, guaranteed access to rights in a robust and solid way for all the population, administrative decentralization, and the conditions needed to overcome this structural violence. We shall remember the 1989 Marcha del Silencio (Silence March) after the murder of Luis Carlos Galán, which gave rise to the Movimiento de la Séptima Papeleta and, consequently, the Colombian Constituent Assembly.

We can consider that the 1991 Constitution arose as a Peace Agreement. Under the1886 Constitution, there were only the Liberal Party, the Conservative Party, and a minuscule movement of left-wing, pro-communist ideas. From the 1991 Constitution,new spaces of participation were created. It is relevant that this Constitution was signed by the three political leaders: one from the conservative party, one from the liberal party, and a representative of the demobilized M-19 movement.
 

 

What happened with the new Constitution?
The drafting of the new Colombian Magna Carta proposes a secular, inclusive, decentralized society that grants human rights and protects the environment; a peaceful society based on respect, able to address the strong social and economic inequalities that have historically existed in the country. With this Constitution, the entirety of the Colombian State was organized in a different way to provide its structural bodies and its decentralized bodies with more autonomy. Among the most critical changes introduced by this Constitution, we can find the creation of the Corte Constitucional (Constitutional Court), the Acción de Tutela (Act of Protection) and the Bloque de Constitucionalidad (Constitutionality Block).

It is a great challenge to analyze these 30 years of our Constitution. But, to do so in a wider and more thorough way, the Public Law research group of Universidad del Rosario organized, in December 2020, the event Treinta años de la Constitución Política de 1991: ¿un cumpleaños feliz? (Thirty Years of the Colombian Constitution: A Happy Birthday?), for which a wide call invited all interested people to discuss these topics by submitting a presentation proposal.

The initiative received 120 presentation proposals, around which 21 workshops were organized to achieve an effective exchange of ideas for around two hours. Those participating in the debates were invited to write an article describing both their initial presentation proposal and the final reflection from the activities at the debate tables. Said conclusions were compiled in the book Reflexiones y desafíos de la Constitución Política de 1991 tras treinta años de su expedición (Thoughts and Challenges of the 1991 Political Constitution Thirty Years after Its Enactment).  

 

Main challenges of the Constitution
Although there are many challenges to our Constitution, three are worth mentioning: reconciling internal tensions created by State juridical pluralism, amplifying rights by using the constitutionality block, and addressing challenges implicit in the fourth industrial revolution.

Harmonizing state juridical pluralism
By attempting to establish a more horizontal juridical status, the 1991 Constitution granted a series of competences to certain bodies, which have created some conflicts around who has the last word. There is no single institution with complete autonomy, and this is where this interinstitutional dialogue becomes necessary, although this interaction does not always happen as a dialogue, but as judgments colliding with one another.

In the first chapter of the book, Professor Nelcy López Cuéllar comments that the conceptualization of interinstitutional dialogue starts in Canada with several constitutional and political scientists, who spoke about a conflict between the Parliament and the Supreme Court on the control mechanism for law constitutionality. The philosophical problem of law in this sense is that dialogue should occur among equals.

However, in State structures, there are power hierarchies and relationships that are not necessarily symmetric, which ultimately affect dialogue by previously defining who, in practice, has the last word.

It is part of the democratic debate to keep fostering dialogue to find the most harmonic or better agreed-upon solutions that create the fewest conflicts. The core of the problem is evident when analyzing the structure of the State. The first US Constitution was based on the theory of checks and balances. This theory aims for one power to control the other.

In this sense, the structure is designed as a power battle that does not foster dialogue. This type of structure was devised in the 18th century, but nowadays, in complex societies, in information and knowledge societies where citizens usually have more access to data and communication, a decision based only on authority or hierarchy is no longer considered fair. It is necessary to find new mechanisms that enable the involvement of different points of view and help create consensus.

The argument that took place in the initial panel was focused in the High Courts. In several cases, the Constitutional Court has been placed as the institution with the last word, notwithstanding the opinions of the Supreme Court of Justice or the Council of State. However, it is necessary to closely analyze each case because the situation is usually more complex than simple hierarchy.

Part of the problem is that when institutions with well-defined competencies are established, each of them is autonomous to establish certain type of decisions. “In our legal system, there are several topics in which competence is shared among institutions, and they end up competing,” explains Professor Diana Valencia.

We can find a way out of this conflict in the 1991 Constitution itself. Article 113 establishes that the different State bodies have separate functions but collaborate with each other to reach the State goals. From this, we can infer a principle of “harmonic collaboration.” In the light of this principle, dialogue strategies among courts have been promoted, such as the creation of joint rooms for members of the different (high) courts to examine matters with converging competences to avoid divergent judgements that create these “train wrecks.”

The constitutionality block as a device to amplify rights
One of the most important differences between the 1886 Constitution and the 1991 Constitution is that the latter has a more dynamic understanding of human rights. Considering the need to grant them in the broadest possible way, the international instruments for the country to be governed in these issues were elevated to constitutional status. The former constitution, in turn, considered that if a national law was in conflict with an international human rights instrument, the national law was prevalent, even if Colombia had signed and ratified said instrument.

The set of international instruments that gained constitutional status is known as the “Bloque de Constitucionalidad (Constitutionality Block).” In this framework, if a national law is in conflict with an international human rights instrument, the law can be declared unconstitutional.

The Constitutionality Block has three functions:
1. To develop constitutional rights employing international instruments for their interpretation.
2. To integrate new rights that are not expressly mentioned in the Constitution.
3. To amplify the grants to rights via mechanisms stipulated in the international instruments.

One of the most notable examples that illustrate these functions is the recognition of prior consultation and free and informed prior consent as fundamental rights of the ethnic communities. The origin of this right is the inclusion of C169 - Indigenous and Tribal Peoples Convention, 1989 in the Constitutionality Block. This acknowledgment shows the three functions in action.

First, there is a development in constitutional rights since the Constitution article establishes a general participation right of Colombians and a mention in the paragraph of Article 330 on “fostering the participation” of indigenous communities in decision-making regarding natural resource exploitation. There, we can find a right that has been established in a general way, interpreted and developed specifically via C169.

Second, there is integration of rights since there was no clear and specific right for indigenous communities to be consulted. Including the C169 in the Constitutionality Block integrated this right to our legal system and turned it into a demandable right via judgment SU-039/97.

Third, guarantees were amplified since besides consolidating the definition of the right to consultation, clear mechanisms were established to ensure that the consultations to indigenous communities met minimum conditions based both on C169 and on decisions by the Inter-American Court of Human Rights. Thus, the right to previous consultation for communities was not only established as an abstract right, but was also regulated to make it effective.

The Constitutionality Block is a powerful device to amplify and grant human rights in Colombia. However, its full potential has not been yet used, and many times, it has been limited to the judicial scope. For example, the Executive Power regulated prior consultation via decree 1320 in 1998 unilaterally, ironically, without consulting with the communities. “The challenge we have is for it to be understood by all branches of public power, to make their functions effective and to develop all its capacity to protect human rights for Colombians.”