By Rodrigo Uprimny Yepes, Dejusticia, June 9, 2024
https://www.dejusticia.org/column/a-favor-del-acuerdo-nacional-y-en-contra-de-la-constituyente/
(Translated by Eunice Gibson, CSN Volunteer Translator)
A national agreement seems necessary, because we are experiencing increasing tension and polarization which not only deteriorates the national debate, but also impedes the advancement of the reforms that the country needs.
Right now in Colombia, a Constituent Assembly is not only unnecessary, but is risky, because it could endanger the Constitution of 1991 which, although it’s not perfect, is a legal framework in which the great majority of Colombians recognize each other, in spite of our differences.
Certain sectors of Petroism and the opposition that differ on almost everything, paradoxically coincide on one point: they both conflate an effort for a national agreement—like the one proposed by President Petro or the one that appears to be mentioned in the Peace Agreement with the former guerrillas of the FARC—with the ambition to call together a Constituent Assembly. But that thesis is mistaken: although on the one hand, there is a certain relationship between the idea of a national agreement and the idea of calling together a Constituent Assembly, on the other hand, there is really no necessary relationship between the two procedures.
The relationship exists because, as Norberto Bobbio beautifully said, “political life develops through conflicts which are never resolved definitively; their solution is through momentary agreements, truces, and those lasting peace treaties called constitutions.” The best constitutions, then, are not simply the legal regulations imposed by one particular hierarchy, but rather they embody and materialize a real foundational social pact that regulates political and social life, and which the great majorities recognize as their great national agreement.
Certain political pacts or national agreements have sparked constituent processes like what happened in the transition in Spain with the so-called Moncloa Agreements in 1977 that led to a Constituent Assembly that drafted the Constitution of 1978, still in effect today. However, not every Constituent Assembly grows out of a political agreement; neither does every national agreement lead to a Constituent Assembly.
There could be Constituent Assemblies without a national agreement, for example when they are promoted by an authoritarian administration. A painful example was the Constituent Assembly imposed by Maduro in 2017, which ended up liquidating Venezuelan democracy. There can also be national agreements of great importance that never try to spark a Constituent Assembly. An example, also from Spain, was the agreement that the principal political forces signed in the year 2000 unequivocally condemning the terrorist violence of ETA after having reached other previous agreements (the so-called Madrid, Ajuria Enea, and Navarra). Those agreements were essential because they eliminated any hint of legitimacy in the attacks by ETA, but far from having any pretentions for a Constituent Assembly, they were a reaffirmation of the Constitution of 1978.
Right now in Colombia, a Constituent Assembly is not only unnecessary, but is also risky, as I have demonstrated in several previous columns, because it will endanger the Constitution of 1991 which, without being perfect, is a legal framework on which the great majority of Colombians recognize ourselves, in spite of our divisions. However, a national agreement seems necessary because we’re feeling some tension and increasing polarization that doesn’t just deteriorate our democratic debate, but also interferes with the advancement of reforms that the country needs. All of this favors the positions of the extreme right, left, and even the center (because sometimes there is also the extremism of the center, strange as that may sound). A national agreement that reaffirms our democratic and constitutional values, that makes possible the concerted advance of social reforms, and in which not only the political forces participate but also other actors—like popular organizations, business owners, or the churches—could possibly allow us to avoid the risky impasse that we’re in right now.
So what we need is a great national agreement but without a Constituent Assembly. I hope the opposition, because of its understandable fear of a Constituent Assembly, will not refuse to try a national agreement, and that the administration will be specific about its proposal and not tangle it up with ambiguous mentions of the power of a Constituent Assembly.