By Rodrigo Uprimny,* EL ESPECTADOR, March 5, 2022
(Translated by Eunice Gibson, CSN Volunteer Translator)
At least three presidential candidates from different aspects have concurred in statements that, if they become President, they will decree a state of emergency. The candidate from the right, Barguil, stressed that he would declare an “internal upheaval”, in order to combat the lack of security, while the one from the center, Galán, and the one from the left, Petro, both said they would decree a “state of emergency” to deal with hunger.
The announcements are popular because they seem to demonstrate that they are tough guys, guys with guts, as is often stated colloquially, that will be vigorous in confronting serious problems. But in reality, this is very worrisome, because as they show in some of their tweets, they are very unfamiliar with the constitutional regulations governing a “state of emergency”. Or they don’t care about respecting constitutional rules. Nobody knows which is worse.
The lack of security, the poverty and hunger, are very serious problems that must be dealt with. But the way to do that is not to announce a state of emergency five months ahead of time. I will explain why.
A state of emergency allows the President to restrict rights severely, and to legislate with decrees; that means without congressional approval. That enormous concentration of power in the executive is sometimes necessary to confront serious and unexpected crises, like the pandemic. But this “constitutional dictatorship”, which is what a “state of emergency” implies, to recall the title of the classic text by Clinton Rossiter, it’s risky, and it leads to enormous abuses, as happened with the “state of siege” under the Constitution of 1886.
Because of these risks, the Constitution of 1991 established strict, but reasonable, conditions to avoid the abuse of “states of emergency”, and the Court has developed a robust jurisprudence in that direction. This has allowed, as we explain in a text along with Mauricio García, that Colombia had lived under a “state of emergency” for more than 80% of the time under the Constitution of 1886, and only 20% of the time under the Constitution of 1991.
One of those conditions is that, as the Court has reiterated in numerous decisions, such as Decision C-145 of 2020, the powers of exception are not to be used to deal with structural problems, but rather with “supervening” crises, i.e., those resulting from “unexpected and abnormal” events, such as the pandemic. The reason is obvious: the structural problems ought to be confronted with ordinary implements of government, such as statutes or administrative measures. If we also allow governments to use emergency powers for those structural problems, with the argument that they are serious and require urgent measures, we will be going back to living under a permanent “state of emergency” with profound erosion of the separation of powers and democracy.
Besides, in spite of being slower and more cumbersome, ordinary statutes are more stable and legitimate, not being based solely on the discretionary determinations of the President and his/her Ministers, without broader consensus, achieved through public deliberations of the different political forces in the Congress.
So it’s contradictory that these candidates are announcing that they would decree a “state of emergency” after several months. That would mean that the problem they want to deal with is neither unexpected nor supervening. Even though it’s serious, it should be resolved through ordinary methods. The candidates have all of these months to put together the political agreements and the social consensus necessary to present Congress with bills that will deal with hunger, poverty, or the lack of security. The other way is no more than nostalgia for the abuse by a “state of siege” and by hyperpresidentialism, bad and poisonous, something we have to get over.
- Researcher at Dejusticia and Professor at the National University.