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Legal History of Colombia

Colombia is located in Northern South America. It borders the Caribbean Sea and the North Pacific Ocean, and Panama, Venezuela, and Ecuador. Its total area is slightly less than twice the size of the US state of Texas. Its natural resources include petroleum, natural gas, coal, iron ore, nickel, gold, copper, emeralds and hydropower.

The Colombian National Constitution of 1991 states in Article 1 that “Colombia is a social state of law, organized in the form of a unitary, decentralized republic, with autonomy of its territorial entities, democratic, participatory and pluralist.” This means that the central government has the power to make the most important political decisions. Colombia only has a legislative authority, which is responsible for making the laws for the entire territory.

The country is divided into territorial entities called departments (equivalent to states in the U.S.) that are separated into districts and local municipalities. These entities do not have legislative or judicial authority. However, as the executive branch of Colombia is administratively decentralized, there are representatives in the departmental, district, and municipal department levels. The representatives in these three levels have certain limited powers that are independent of the central authority.

The political power is distributed in three branches. These branches, according to Article 113 of the Constitution, are the executive branch, legislative branch, and judicial branch. They all have independent roles, but are “designed to work harmoniously for the realization of the nation’s goals.”

The executive branch is managed by the President. Governors, mayors, and ministries report to their respective leaders. For instance, mayors report to the respective governor and the president. Governors report to the president. (Constitución Política de Colombia, Art 115. (1991)).

The Legislative branch’s duty is to amend the constitution, make laws, and exercise political control over the government and the administration. Congress is the body in charge of the legislative function and it is made up of the Senate and the House of Representatives. (Constitución Política de Colombia. Art. 114. (1991)).

The Judicial branch administers justice. The judicial branch in Colombia has four higher courts, which are the last instance for the three most important jurisdictions: ordinary, administrative and constitutional. (Constitución Política de Colombia. Art. 116. (1991)).

The higher courts of the judicial branch are:

  1. The Supreme Court of Justice: the highest court of the ordinary jurisdiction that hears claims against the president and investigates the members of congress (Constitución Política de Colombia. arts. 234-235. 1991)
  2. The Constitutional Court: decides on constitutional claims and studies the constitutionality of the laws (Constitución Política de Colombia. Arts 239-241. 1991)
  3. The Superior Council of the Judiciary: investigates the conduct of the judicial officials (Constitución Política de Colombia. Art 257. 1991)
  4. The State Council: his highest body of the administrative jurisdiction. It advises the government on administrative matters. (Constitución Política de Colombia. Arts 236-238 1991)

The Constitutional Court must decide among others on claims that involve controversial matters such as abortion, same-sex marriage, adoption, and now bullfighting as part of its constitutional duty. Congress’ main duty is to “make the laws of the Nation,” but it has shown itself reluctant to rule when it comes to legislating on the current most controversial topics. As a result of this passivity, the Constitutional Court has had to rule in the absence of Congress in these crucial matters through judicial decisions. This gives the Colombian court’s decisions a similar scope to the high court decisions in common law countries.

Ten constitutions:

The Governmental System – Since declaring its independence from Spain in 1810, Colombia has had ten constitutions, the last of which adopted in 1886 established the present-day unitary republic.

Constitutional History:

  • 1886 Constitution

Colombia has had several constitutions. The first constitution which was in force for a significant period was promulgated in 1886 after an agitated constitutional period in the 19th century. It remained in force until 1991. The 1886 Constitution established a strong state with three branches of government, with the executive being the dominant branch. The executive had control over 160 state enterprises, including the banking sector (putting public and private credit under its control), electricity, and petroleum.

Between 1886 and 1991, there were several Constitutional amendments. Most notable was the 1957 amendment, which formally established bipartisanship after a long period of violence known as La Violencia, caused by disagreements between the liberals and the conservatives, who were the main political parties.

The so-called Frente Nacional (National Front), a system of government which called for equal numbers of liberal and conservative delegates in the Congress, and for alternation between liberal and conservative Presidents. The Frente Nacional remained in effect until 1986, when the election of a liberal president coincided with the unilateral decision of the conservatives to terminate the system.

Although the Frente Nacional formally ended La Violencia, the rigid bipartisanship it established led to further political violence since it in effect disenfranchised anyone who was not a liberal or a conservative. This disenfranchisement led to the reforms which resulted in the 1991 Constitution.

  • 1991 Constitution

In 1991, a reform movement led to the drafting of another constitution. The process began with an attempted reform in 1988 intended to involve the population in the political process and to counter corruption amidst an ongoing civil conflict. The failed1988 reforms instigated a student movement named Todavia podemos salvar Colombia (we can still save Colombia). The students and youths demonstrated on the streets demanding a constitutional assembly to address the ongoing conflict.

The movement proposed a constituent assembly for the 1990 elections and held a special ballot called the septima papeleta (Seventh Ballot) during the regular elections. Although the Electoral Counsel did not officially count the Seventh Ballot votes alongside the votes for Senate, Chamber of Representatives, Department Assemblies, Governors, Municipal Councils and Mayors, the Seventh Ballots were unofficially tallied.

There was a near-unanimous positive response to the Seventh Ballot. The Supreme Court validated the Seventh Ballot, and elections for the representatives of the National Constituent Assemblies were held.

The Constitutional Assembly was inclusive and representative. Seventy delegates were chosen after a nation-wide election and included members from every strata of society, including professional politicians, ex-guerillas, Indian leaders, businessmen, social leaders, labor leaders, peasants, clerics and academics.

The demand for a new constitution was driven by the need to establish modern democratic institutions that would encourage greater participation in the democratic process, strengthen the rule of law in order to defuse political violence and to secure human rights by establishing mechanisms for the protection of these rights.

The 1991 Constitution is also known as the “Human Rights Constitution” because it recognizes not only the classic fundamental negative rights dating back to the French Revolution but also economic and social rights. The 1991 Constitution created three mechanisms to protect these rights:

(a) tutelage, which allows a party to bring an action to suspend any action or omission of a governmental or private entity that threatens a fundamental right;

(b) the Defensor del Pueblo, a Human Rights Ombudsman elected for a four-year term by the House of Representatives, who monitors the protection and development of human rights; and

(c) class actions designed to protect collective interests and rights.

The 1991 Constitution was amended by reforms in 1993, 1995, 1996, 1997, 1999, 2000, 2001, 2002, 2003, 2004 and 2005.

Timeline for Constitution Building Process

1810 Colombia declares independence from Spanish Crown. First constitution promulgated.
1819 Republic of Gran Colombia declared (includes Venezuela, Ecuador, and Panama).
1830 Ecuador and Venezuela secede from Gran Colombia.
1863 Establishment of the United States of Colombia.
1886 The Constitution of 1886 establishes the Republic of Colombia, following a period of instability characterized by many constitutions.
1903 Panama secedes from the Republic of Grand Colombia.
1947 Start of civil war between the liberal and conservative parties.
1957 Constitutional amendment paves the way for reconciliation between the liberals and conservatives, establishing a mechanism for political power-sharing known as the Frente Nacional.
1968 Constitutional reform strengthening the President by allowing his office to control the national budget, revenues, and expenditures.
1986 End of the Frente Nacional when the election of liberal president Virgilio Barco coincided with the unilateral decision of the conservatives to terminate the pact.
Early 1990 Seventh Ballot elections gets an almost unanimous vote.
December 1990 Elections for seventy delegates for the Constitutional Assembly held nationwide.
July 4, 1991 1991 Constitution adopted.

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