The Constitution of Colombia (Spanish: Constitución Política de Colombia), better known as the Constitution of 1991, is the current governing document of the Republic of Colombia. Promulgated on July 4, 1991, it replaced the Constitution of 1886. It is Colombia's ninth constitution since 1830. See a timeline of all previous constitutions and amendments here. It has recently been called the Constitution of Rights.
Main article: Constitutional history of Colombia
After an agitated constitutional period in the 19th century, in 1886 Colombia adopted one of the oldest constitutions in Latin America. Nevertheless, after a century in force, the Constitution of 1886 was in need of modifications in order to adapt it to the country's changing social, economic and political conditions.
In the late 1980s, Colombia was facing a period of unprecedented violence. Although political violence had been commonplace in the country's history since the 19th century, and Colombia had been embroiled in an armed conflict primarily against guerrilla groups since the 1960s, in the 1980s the list of actors involved in the armed conflict became increasingly complex and the violence took on new forms. The conflict now involved new guerrilla movements, paramilitary groups and violent drug cartels (most famously the Medellín Cartel of Pablo Escobar). Politically, the National Front arrangement (1958–1974) between Colombia's two dominant parties, the Conservatives and the Liberals was widely seen as delegitimizing the political system by severely limiting third parties and other movements' political participation. Although the strict application of the National Front ended with the 1974 election, the power-sharing aspects of the system were dismantled only gradually - only in 1986 did PresidentVirgilio Barco form a single-party Liberal government, after the Conservatives had rejected his offer of three ministries in his administration.
A series of assassinations and terrorist attacks in 1988 and 1989 increased popular demands for political and constitutional reform, as the country's existing political institutions were seen as broken in the face of the wave of extreme violence. 1989 witnessed the assassination of 12 judicial officers, the assassination of Liberal presidential candidate Luis Carlos Galán on August 18 in Soacha, the bombing of the El Espectador newspaper's offices in Bogotá on September 2, the in-flight explosion of Avianca Flight 203 on November 27 and the bombing of the DAS headquarters on December 6 causing the death of 70 people. In 1990, two other presidential candidates were assassinated - Bernardo Jaramillo of the Patriotic Union (UP) was killed March 22, 1990, and Carlos Pizarro of the AD M-19 was shot on April 26, 1990. The August 1989 assassination of Luis Carlos Galán, who was the early favourite to win the 1990 elections, shocked public opinion in Colombia and led, seven days later, to a 'silent march' (Marcha del silencio) organized by university students in Bogotá. The organizers' original objective was to express their rejection of indiscriminate violence, which had claimed the lives of an average of 11 people per day in 1988.
Previous attempts at constitutional reform
One of the factors which made constitutional change difficult was that the 1886 Constitution could only be amended by the Congress. Article 218 of the Constitution of 1886, as it stood in 1990, stated that the Constitution could only be amended by a law (legislative act, or Acto Legislativo) passed by Congress:
ARTICULO 218. La Constitución, salvo lo que en materia de votación ella dispone en otros artículos, sólo podrá ser reformada por un Acto Legislativo, discutido primeramente y aprobado por el Congreso en sus sesiones ordinarias; publicado por el Gobierno, para su examen definitivo en la siguiente legislatura ordinaria; por ésta nuevamente debatido, y, últimamente, aprobado por la mayoría absoluta de los individuos que componen cada Cámara. Si el Gobierno no publicare oportunamente el proyecto de Acto Legislativo, lo hará el Presidente del Congreso.
ARTICLE 218. The Constitution, [...] may only be amended by a Legislative Act, first discussed and adopted by Congress in its regular sessions; published by the Government, for final consideration at the next regular legislative session; by it again debated, and ultimately approved by the absolute majority of the individuals which compose each House. If the Government does not promptly publish the draft legislative act, the President of Congress will do so.
The constitutional reforms which, among other things, set-up the National Front, were approved by a national plebiscite in 1957. However, the text approved by voters in the 1957 plebiscite reiterated that any future constitutional amendments could only be passed by Congress in the manner prescribed by article 218. Article 13 of the Legislative Decree 0247 of 1957 (Decreto Legislativo Numero 0247 de 1957) read:
ARTICULO 13. En adelante las reformas constitucionales sólo podrán hacerse por el Congreso, en la forma establecida por el artículo 218 de la Constitución.
ARTICLE 13. Henceforth constitutional reforms may only be passed by Congress, in the manner prescribed by Article 218 of the Constitution
Notwithstanding these legal difficulties, several presidents beginning attempted to reform parts of the constitution, but most saw their efforts rebuffed by the Supreme Court of Justice or political complications. In 1977, under President Alfonso López Michelsen, Congress passed a constitutional amendment convening a constitutional assembly to amend the constitution only as it pertained to departmental/municipal administration and the judiciary (courts, public prosecution, constitutional jurisdiction). On May 5, 1978, the Supreme Court of Justice ruled the project unconstitutional. In its verdict, the court argued that Congress' power to amend the constitution under article 218 was an exclusive power which it could not delegate.
In December 1979, Congress approved President Julio César Turbay's constitutional reform initiative. The reform made substantial changes to the administration of justice, public prosecutions and the process of judicial review by the Supreme Court. Following a tortuous court challenge, the Supreme Court rendered a controversial ruling on the constitutional amendments in November 1981, striking down the entire project because of procedural defects in the legislative procedure.
In 1986, faced with the urgency of presenting some tangible proof of the "democratic opening" (liberalization) that left-wing movements and guerrillas had been incessantly demanding, the Congress passed a constitutional amendment allowing for the direct election of mayors (hitherto appointed by departmental governors). There was growing clamour to reform the 1886 constitution, accused of 'closing' political institutions, limiting opportunities for the political participation of minorities and not permitting the "democratic opening" which would guarantee the reincorporation to civilian life of armed rebel groups.
In 1986, Liberal candidate Virgilio Barco was elected to the presidency on a platform of national reconciliation. In January 1988, Barco unexpectedly revived the idea of substantial constitutional change by proposing the organization of a plebiscite, alongside the March 1988 local elections, to repeal article 13 of the 1957 plebiscite. The president hoped that a plebiscite would give legitimacy to the repeal of this article (which had also been approved by plebiscite). However, Barco was forced to shelve the idea because of the lack of political consensus around his proposal.
Instead, in February 1988, Barco signed a bipartisan agreement with leaders of the Liberal and Conservative parties (the Acuerdo de la Casa de Nariño) which included agreement on the organization of a "process of institutional readjustment" - the creation of a constituent body, originating in Congress, which would submit a proposal for constitutional reform to Congress. The process was suddenly halted by the Council of State's ruling on April 4, 1988, which declared it to be unconstitutional. A later attempt to resuscitate the original idea of a plebiscite was rejected by the government itself in December 1988, after a group of congressmen had tried to add a question banning extradition.
Meanwhile, Barco's policy of national reconciliation had been successful - four guerrilla groups demobilized between 1989 and 1990. The M-19 was the first group to accept the government's offer to dialogue in 1988, culminating in the movement surrendering their weapons in March 1990. The M-19's demobilized members became a political party, known as the Democratic Alliance M-19 (AD M-19), in 1990. In 1991, the Workers' Revolutionary Party (PRT), most fronts of the Popular Liberation Army (EPL) and the Movimiento Armado Quintin Lame (MAQL) all demobilized. One of the terms for their demobilization was their (limited) participation in a constituent assembly. The Revolutionary Armed Forces of Colombia (FARC) supported a new constitution, but did not demobilize. The left-wing Patriotic Union (UP), created in 1985 as the FARC and the Communist Party's legal political wing, also supported a new constitution.
Student movement and the séptima papeleta
A student-led movement called Todavía podemos salvar a Colombia ("We can still save Colombia"), born from the August 1989 'silent march' and predominantly spearheaded by student and faculty from the most prestigious private universities of Bogotá (Universidad del Rosario, Pontificia Universidad Javeriana, Universidad de los Andes), proposed the formation of a constituent assembly. In 1989, the movement had gathered over 30,000 signatures for an unsuccessful petition asking the president to convene a plebiscite to reform the constitution. Some months later, the students promoted the so-called séptima papeleta, or 'seventh ballot paper', as an unofficial plebiscite for a constituent assembly to be held alongside the March 1990 legislative election. The name séptima papeleta meant to indicate that the unofficial ballot for a constituent assembly would be in addition to the six other official ballot papers (senators, representatives, departmental assemblies, mayors, municipal councils and the Liberal presidential primary).
The séptima papeleta was the brainchild of Fernando Carillo, a young Harvard graduate and constitutional lawyer, who at the time was teaching law in Bogotá's three main private universities. In February 1990, Carrillo published an article in El Tiempo, the first to use the term séptima papeleta and explaining the objectives of his idea. Carrillo argued that the unofficial vote would "create a political fact" and "set the record that public opinion wants a constituent assembly", while the expression of popular sovereignty would keep the courts from invalidating it. Carrillo's idea immediately received substantial support from the political and media elites of the country. El Tiempo, Colombia's largest newspaper, enthusiastically supported the movement and later provided some of the material support necessary to print the ballots. Liberal presidential candidate César Gaviria supported the idea and was the first presidential contender to speak about it publicly. Former President López Michelsen supported the idea, and further proposed that the government issue a state of siege decree ordering the official counting of the seventh ballot papers. On 10 March, a day before the election, President Barco gave his personal support to the séptima papeleta. Most Liberal factions also supported the séptima papeleta, with the only significant Liberal opposition coming from former president Turbay and Liberal presidential candidate Hernando Durán Dussán. Álvaro Gómez Hurtado, leader of the conservative National Salvation Movement (MSN), initially opposed constitutional reform. The strongest support for the séptima papeleta came from the legal left-wing parties, the UP and the new AD M-19. The FARC, for their part, proposed an entirely new constitution written by a constituent assembly, which would be convened by a plebiscite.
The idea of the séptima papeleta was similar to the conclusions of a 1988 government report prepared by Manuel José Cepeda, the son of then-communications minister Fernando Cepeda, for President Barco. Based on a detailed analysis of the constitutional jurisprudence of the Supreme Court, Cepeda had concluded that the 1886 constitution could be reformed through a plebiscite or constituent assembly, as long as it was convened by the people.
On March 1, 1990, the National Registrar informed students that while he could not order the counting of the votes for a constituent assembly, neither could he ban the seventh ballot from being deposited. In short, the séptima papeleta would not affect the validity of votes for the six official contests. The unofficial count showed over 2.2 million votes in favour of a constituent assembly, out of over 7.6 million votes cast in the election.
Decree 927 and the 27 May Referendum
On May 3, 1990, President Barco issued Decree 927,[a] ordering the electoral authorities to count the votes for an official (but non-binding) vote convening a constitutional assembly, to be held alongside the May 27 presidential election. The decree claimed that intensified violence had created "a popular clamour for institutions to be strengthened". It made reference to the success of the séptima papeleta in March, stated that the popular will should be recognized and warned that thwarting the "popular movement in favour of institutional change" would weaken the country's political institutions. The government claimed that it was acting to facilitate the expression of the popular will.
The contents of the decree were largely the fruit of conversations between the government, the Liberal party and the two rival factions of the Conservative party. The parliamentary left was excluded from the talks, but they nevertheless welcomed decree 927. On the other hand, the decree was criticized by the Movimiento Estudiantil por la Constituyente (Student Movement for the Constituent), a rival of the Todavía podemos salvar a Colombia student movement, this one largely led by students from public universities. They criticized the use of the term 'constitutional assembly' rather than 'constituent assembly', fearing that the former was a way for Liberal party 'barons' to seize control of the process. Several Conservative politicians likewise criticized this aspect.
The decree was challenged in court, with its opponents claiming that there was no relationship between the state of siege under which the decree was proclaimed and the measures it provided and that it violated article 218 of the constitution (as well as article 13 of the 1957 plebiscite). In the opinion of the public ministry, there was no relationship between the state of siege and the measures provided by the decree, given that the state of siege only allowed for measures to maintain, not change the institutional order. The legality of non-binding votes was also questioned. The Supreme Court, through sentence 59 of May 24, 1990, ruled the decree to be constitutional. Arguing that the country's political institutions had lost their effectiveness and become unsuitable in the face of greater violence, their 'redesign' was clearly necessary. The court argued that constitutional judges must take heed of the social reality, and made several references to the popular movement in favour of constitutional reform. In the Supreme Court's opinion, the decree did not entail any constitutional reform, plebiscite or referendum - it merely gave the 'legal possibility' for counting votes on the possibility of convening a constitutional assembly. Therefore, the judges could not comment on the possibility of convening a constitutional assembly, and wrote that claims that the decree violated article 218 were based on false assumptions on the real scope of the decree.
The vote went ahead on May 27, and the affirmative option in favour of a constitutional assembly carried over 95% of the votes cast, although only 43% of voters participated.
Liberal candidate César Gaviria was elected President on the same day as the vote on the constitutional assembly was held. Gaviria had served as interior minister in Barco's government, actively involved in constitutional affairs. Although Colombian voters - those who participated - had overwhelmingly voted in favour of a constitutional assembly in an officially sanctioned vote, there was no agreement on the form that constitutional change should take. Large number of politicians from both major parties preferred to see constitutional reform done through Congress rather than a constituent assembly, while more marginal political and social forces pushed for a constituent rather than constitutional assembly.
Gaviria undertook dialogues with the major political parties and their leaders. In July 1990, Gaviria sent his draft proposal for a constitutional assembly to the largest political parties. His proposal planned for a small assembly, a rigid predetermined agenda and with guerrilla participation limited to those groups who had demobilized.[b] Gaviria's draft was rejected by the guerrilla groups, smaller legal left-wing parties, the umbrella organization of pro-constituent assembly movements and even Todavía podemos salvar a Colombia. Pro-constituent assembly groups instead proposed a constituent assembly to write a new constitution, with extensive grassroots and guerrilla participation.
On August 2, 1990, Gaviria oversaw the signing of a political agreement for a constitutional assembly by members of the Liberal Party, the two rival Conservative groups and the AD M-19. This agreement was the basis for Decree 1926, issued on August 24 and calling for a referendum on the creation of a constitutional assembly on the basis of the political agreement and simultaneous elections to the constitutional assembly. Like decree 927, decree 1926 was issued as a state of siege decree under article 121 of the 1886 constitution, and justified the creation of a constitutional assembly with the need to solve the country's conflicts by reforming the country's institutions. As per the agreement/decree, the referendum for and parallel election of a constitutional assembly would be held on December 9, 1990 and the assembly would convene a period of 150 days beginning on February 5, 1991. The assembly would be composed of 70 members elected in a single multi-member national constituency, with a minimum of two additional seats reserved for non-voting delegates from demobilized guerrilla groups. Only citizens who had held high political office, had been university professors for at least three years or had worked in a field with a university degree for at least five years were eligible for election, although the decree created exceptions for those who had been undergraduate students for at least one year, indigenous leaders for at least one year, social leaders for at least one year or those who had received a pardon as part of a peace process.
The agreement/decree set an agenda to which the assembly would be limited. On the basis of the agenda, preparatory commissions made up of experts, social and political leaders would hold debates and public hearings. An advisory commission to the presidency, with six members appointed by the president, would be tasked with drawing up the final draft and submitting it to the assembly. The agreement gave the government the initiative for presenting projects to the deliberation of the assembly, although 10 members of Congress would also be allowed to present their projects. The list of topics on the agenda included reforms to Congress, the legislative process, the judiciary, public prosecutions, public administration, human rights, local government, the status of political parties, popular participation, the state of siege and economic matters.
While former President Carlos Lleras Restrepo and El Tiempo praised the agreement, it was criticized by the director of El Espectador who denounced the heavy participation of Congress in the future assembly and the limited room for citizens' input. Others - such as the pro-constituent assembly groups on the left - blasted the fairly rigid eligibility conditions and the exclusion of students, guerrillas, social leaders and indigenous peoples. These left-wing groups organized demonstrations for a "people's constituent assembly" on September 6. The FARC, who claimed to support a dialogue with the government, contended that the government's constitutional assembly would merely serve to pass reforms which had failed in Congress and reiterated their demands for an "autonomous and sovereign constituent assembly" which would draft a new constitution. Demobilized groups such as the PRT, MAQL and some fronts of the EPL cautiously welcomed some aspects of the decree but sought modifications in certain areas.
Sentence 138 of the Supreme Court of Justice
Decree 1926 was brought to the Supreme Court by several plaintiffs. The decree's advocates argued that it pertained to the organization of an electoral event and claimed that the Nation, the source of sovereignty under article 2 of the 1886 constitution, could exercise its constituent power notwithstanding articles 218 and 13. Critics of the decree, the court's record stated, hit it from several angles - those who claimed the anticipated reforms were elitist and limited in scope;[c] and those who claimed that the decree was unconstitutional as it violated articles 218 and 13 (they also rejected preeminence could be established between articles 2 and 218). As with decree 927, the public ministry opined that the court should either inhibit itself from ruling on the decree (as it was a 'political act') or rule it unconstitutional.
On October 9, in sentence number 138, the Supreme Court of Justice narrowly ruled decree 1926 to be constitutional with specific exceptions. The ruling created deeper divisions between the judges than their May ruling on decree 927, ultimately being approved with 15 votes in favour and 12 dissents (salvamentos de voto). The court found that the decree, taken in its entirety, had sufficient connections to the state of siege, for reasons similar to those presented in its May 24 ruling on decree 927.
Considering article 218, the majority opined that the judge needed to consider the social reality (an argument already made in their May ruling), specifically looking to societal values and reflecting on the usefulness of legal norms to certain purposes deemed valuable to the society. The court made reference to peace, a value explicitly mentioned in the preamble of the 1886 constitution. In summary, the court declared that it was insufficient to consider only article 218 (and 13) in ruling on decree 1926's constitutionality:
Así pues, tanto por razones filosóficas como jurisprudenciales, para definir si el Decreto 1926 de 24 de agosto de 1990 es constitucional no basta compararlo con los artículos 218 de la Constitución y 13 del plebiscito del 1° de diciembre de 1957 si no tener en cuenta su virtualidad para alcanzar la paz. Aunque es imposible asegurar que el mencionado decreto llevara necesariamente a la anhelada paz, no puede la Corte cerrar esa posibilidad.
Therefore, both for philosophic and jurisprudential reasons, to determine whether Decree 1926 of August 24, 1990 is constitutional, it is insufficient to compare it with the articles 218 of the Constitution and 13 of the plebiscite of December 1, 1957 without taking into account its potential for peace. Although it is impossible to ensure that the mentioned decree would necessarily lead to the desired peace, the Court cannot close this possibility.
Among its other considerations, the court emphasized the notions of sovereignty, popular sovereignty and the idea of the 'primary constituent' (constituyente primario), that is to say the Colombian nation (or people). The court's ruling declared that the 'primary constituent' can, at any time, give itself a new constitution without being subject to the requirements imposed by the constitution in force until then. It cited as precedent the modification of the 1886 constitution by plebiscite in 1957, or the adoption of the very constitution of 1886 through other means than those set by the Colombian Constitution of 1863. The judgement also referenced prior constitutional jurisprudence. Firstly, it mentioned a 1957 ruling on that year's plebiscite which said that the power to modify the constitution did stem from the constitution itself but rather from 'the revolution' or the "exercise of the latent sovereignty in the people as constituent will.".[d] Secondly, it looked at a 1987 ruling, also concerning the constitutionality of the 1957 plebiscite, in which it had declared that "when the people, exercising its sovereign and inalienable power, decides to pronounce itself on the constitutional text that will govern their destiny, it is not and cannot be subject to the legal regulations which precede its decision." The 1987 decision had also called the 'primary constituent act' "the expression of the highest political will", free from any judicial limitations. Summarizing its opinion, the majority wrote:
En pocas pero trascendentes palabras, el Poder Constituyente Primario, representa una potencia moral y política de última instancia, capaz, aun en las horas de mayor tiniebla, de fijar el curso histórico del Estado, insurgiendo como tal con toda su esencia y vigor creativos. Por esto mismo, sabe abrir canales obstruidos de expresión, o establecer los que le han sido negados, o, en fin, convertir en eficaz un sistema inidoneo que, por factores diversos, ha llegado a perder vitalidad y aceptación.
In few but transcending words, the primary constituent power represents a moral and political power of ultimate resort, capable, even in times of the greatest darkness, of setting the historical course of the State, rebelling with all its essence and creative vigour. For this reason, it knows how to open blocked channels of expression, or establish those that had been denied, or, in the end, make efficient a system, which, for various reasons, had come to lose vitality and acceptance.
Based on these arguments, the court ruled that the agenda set by the political agreement was unconstitutional as it placed undue limits on the powers of the primary constituent. The court's sentence removed, from the December 9 referendum question, any reference to limits imposed on the assembly by the August 1990 political agreement. It also struck down a requirement for a deposit of COL$ 5,000,000 from candidates.
Elections to the Constitutional Assembly were held on December 9, simultaneously with the referendum authorizing the convening of said assembly for February 5, 1991. The elections were overshadowed by the massive abstention - of the country's 14,237,110 eligible voter, just 26% of them (or some 3.7 million) turned out. The referendum was carried with an overwhelming majority, with nearly 98% in favour of convening the assembly.
116 lists or candidates ran for 70 seats in the constitutional assembly. The Liberal Party alone accounted for 49 of these lists, having decided to run several separate lists - unlike the other parties - to take advantage of electoral rules. Voters cast their votes for a single/list candidate, with the seats then attributed using the electoral quotient and largest remainders. The single most popular list was that of the AD M-19, led by Antonio Navarro Wolff, which won 992,613 votes and 19 seats. The list led by Álvaro Gómez Hurtado of the National Salvation Movement won 574,411 votes and elected 11 members. Misael Pastrana Borrero's list for the Social Conservative Party won 236,794 votes and 5 seats. Overall, however, the Liberal Party elected the most members, at 25, with over 31% of the popular vote. The most successful of the various Liberal lists was led by Horacio Serpa and won 138,662 and 3 seats. The government appointed four non-voting members from demobilized guerrilla groups - two from the EPL, and one apiece from the PRT and MAQL.
During the assembly, the MSN and AD M-19 demanded that the Congress elected in March 1990 be recalled and that a new Congress be elected in 1991 following the approval of the new constitution. In a compromise between the three main forces in the assembly mediated by Gaviria and former president Alfonso López Michelsen, it was agreed that the 1990 Congress would be dismissed and new elections to Congress would be held under the rules of the new constitution in October 1991, but the members of the constitutional assembly would be ineligible to run in these elections.
The three presidents of the assembly were Alvaro Gómez Hurtado (MSN), Horacio Serpa (Liberal) and Antonio Navarro Wolff (AD M-19). The 1991 Constitution of Colombia was promulgated on July 4, 1991.
- Colombia took the shape of a decentralized unified state with a certain autonomy for its territorial entities and a presidential system. The four-year presidential term was retained.
- An accusatory judicial system was established by the Attorney General of Colombia (Fiscalía General de la Nación).
- The power of judicial review was transferred from the Supreme Court of Justice, which had exercised it since 1910, to an independent Constitutional Court. The new body hears challenges to the constitutionality of laws, legislative decrees, laws approving international treaties, and referendum or assembly constituency summons and hears appeals of lower judicial decisions related to the tutelage action of constitutional rights.
- The tutelage action was instituted as a quick and effective mechanism that allows citizens to assert their fundamental rights as stated in Article 8 of the Universal Declaration of Human Rights of 1948.
- The extradition of Colombian citizens was banned until the article was repealed in 1996.
- Presidential reelection was banned completely, with an immediate re-election already forbidden in the Constitution of 1886. However, the rule was repealed in 2004 by using procedures that were declared valid by the Constitutional Court on October 19, 2005. In 2015, the Congress approved the repeal of a 2004 constitutional amendment that eliminated the one-term limit for presidents.
Title I: Fundamental principles
In Article 1, Colombia is defined as a "social state under the rule of law", or estado social de derecho, organized as a "decentralized unitary republic, with autonomy of its territorial units." It cites other fundamental principles defining the Colombian State - democratic; participatory; pluralistic; based on the respect of human dignity, on the work and solidarity of the individuals who belong to it, and the prevalence of the general interest.
The Estado social de derecho
The definition of Colombia as a "social state under the rule of law", or estado social de derecho in Spanish, is one of the most important legal and philosophical changes associated with the 1991 constitution. The concept combines two common doctrines in continental European legal thinking - that of the Rechtsstaat (state of law or rule of law, known as estado de Derecho in Spanish), borrowed from Germanjurisprudence; and that of the "social state" (estado social), similar to the related concept of the Welfare state. The Colombian Constitution of 1991 was inspired by the Basic Law for the Federal Republic of Germany, which in its article 20 proclaims Germany to be a "democratic and social federal state" (demokratischer und sozialer Bundesstaat) and the Spanish Constitution of 1978 which established Spain as a "social and democratic State, subject to the rule of law" (Estado social y democrático de Derecho).
The Rechtsstaat or estado de derecho refers to a State in which the exercise of political power is constrained by the law, and where the law is also just. The most important principles underpinning this doctrine are the supremacy of a written constitution, a separation of powers with all branches bound by laws, a hierarchy of laws, the guarantee of individual fundamental rights, legal certainty and the proportionality of state action. The social state denotes those who have incorporated, within their legal system and constitutional order, social rights (or second-generation rights). These rights commonly include the right to work, social security, the right to education, the right to health. The first constitution to explicitly establish social rights was the 1919 Weimar Constitution of Germany, followed by the Spanish Constitution of 1931 and, in Colombia, the 1936 constitutional reform of President Alfonso López Pumarejo.
Colombian legal scholar Luis Villar Borda identified German legal scholar and philosopher Hermann Heller as the creator of the concept of the estado social de derecho, formulated in the 1930s in the face of the perceived limitations of the Rechtsstaat to make the principle of equality a reality. The new definition of the Colombian State meant that the State transcended its traditional role as an administrator to serve and guarantee the country's development.
The Colombian constitution, under its second title, lists a large variety of civil and political rights and economic, social and cultural rights, and establishes judicial mechanisms to guarantee them.
In sentence T-406/92, the Constitutional Court noted that the concept of the estado social de derecho encompassed not only individual rights but also the entire organizational apparatus of the State. It further added that the 'organic part' of the constitution (that establishing the organization of the State's political institutions) only acquired meaning and rationale as the implementation and application of the rights and principles enshrined in its 'dogmatic part'.
Other fundamental principles
Article 2 lists the essential goals of the State: "serve the community, promote the general welfare, guaranteeing the effectiveness of the principles, rights, and duties stipulated by the Constitution;" facilitating popular participation in decisions of national importance, defending national independence, maintaining territorial integrity, and ensure peaceful coexistence and enforcement of a just order. The article also stipulates that the authorities of the State are established in order to protect all residents of Colombia and to ensure the fulfillment of the social duties of the State and individuals.
According to Article 3, "Sovereignty resides exclusively in the people, from whom public power emanates." They exercise it directly or through their representatives. The forms of democratic participation are presented in title four of the Constitution, from article 103 onwards. In the 1886 constitution, sovereignty was said to reside "essentially and exclusively" in the Nation.
Article 4 establishes the Constitution as the supreme law of the country, the supremacy of the Constitution in case of incompatibility with any law and citizens' and resident foreigners' obligation to abide by the Constitution and the laws. According to Article 6, each person is individually responsible before the authorities for violations of the Constitution and the laws, with civil servants further responsible for omission and abuse in the exercise of their duties.
The fifth article establishes the primacy of the inalienable rights of the individual, without any discrimination, and protects the family as the basic institution of society.
Article 7 recognizes and protects the ethnic and cultural diversity of Colombia, while the following article obliges the State and individuals to protect the cultural and natural assets of the country. The 1991 constitution was a major break with the unitary and exclusionary view of the Nation which had existed in Colombia until that time. The Colombian nation, like most other Hispanoamerican countries, had hitherto been defined in exclusionary terms as a Catholic, Hispanic and Spanish-speaking nation to the exclusion of indigenous peoples and racial minority groups. The 1991 constitution therefore recognized the multiethnic and multicultural composition of Colombia, and allowed Colombia's indigenous, Afro-Colombian and Raizal minorities - among others - to gain political, legal and cultural visibility and recognition.
Article 9 sets the principles which should guide the foreign relations - National sovereignty, respect for the self-determination of peoples and the recognition of the principles of international law approved by Colombia. It also states that Colombian foreign policy is oriented towards Latin American and Caribbean integration.
Castilian Spanish is the official language of Colombia,[e] as per article 10, but the constitution also recognizes the co-officiality of the languages and dialects of ethnic groups in their territories and provides for bilingual education in communities with their own linguistic traditions.
Besides the estado social de derecho, the 1991 constitution introduced several significant changes to the country's political system and political culture, such as decentralization, participatory democracy, forms of limited direct democracy, recognition of ethnocultural diversity and a much wider scope of basic rights.
Title II: Rights, guarantees and duties
Chapter I: Fundamental rights
Articles 11 through 41 of the Constitution list the fundamental rights. These rights are:
- Right to life, with capital punishment expressly prohibited (Article 11). Capital punishment had been abolished in Colombia in 1910 through a constitutional amendment. The Constitutional Court has ruled that the right to life is not absolute. In sentence C-355/06, the Court's opinion said that "despite its constitutional relevance, life does not have the character of a value or an absolute right and must be weighed with the other values, principles and constitutional rights." Two of the notable exceptions to the right to life ruled constitutional by the Constitutional Court are assisted suicide (decriminalized by sentence C-239/97) and abortion in case of danger to the mother's life, life-threatening fetal defects, rape, incest or non-consensual fertilization (sentence C-355/06).
- Concerning assisted suicide, in 1997, the Court's opinion was that the State's duty to protect life must be compatible with respect for human dignity and the free development of personality (article 16), and that in the case of terminally ill patients, this duty must give way to the informed consent of patients who wish to die with dignity. In the same case, the Court affirmed that "the right to life cannot be reduced to mere subsistence, but rather involves living adequately in dignity." In the same vein, the State cannot force an unwilling person suffering from major pain to prolonge his/her existence for a short period of time, and doing so would constitute cruel and inhumane treatment, which is banned by the Constitution (article 12). In the case of abortion, the Court argued that the basis for the prohibition of abortion in other cases was based on the State's duty to protect the life of the unborn rather than the status of the unborn as a human being entitled to the right to life.
- Not to be subjected to forced disappearance, torture, cruel, inhuman or degrading treatment or punishment (Article 12). Slavery, servitude and the slave trade in all forms are prohibited by Article 17.
- Individuals are born free and equal under the law, and shall receive equal protection and treatment from the authorities, and shall enjoy the same rights, freedoms, and opportunities. Discrimination on the grounds of gender, race, national or familial origin, language, religion, political opinion, or philosophy is explicitly banned (Article 13). The State, according to the Constitution, promotes the conditions so that "equality may be real and effective" and adopts measures in favour of marginalized or discriminated groups. Furthermore, the State has special responsibility to protect individuals who are in "clearly vulnerable circumstances" on account of their economic, physical, or mental condition, and to punish abuses or ill-treatment against them. The Constitutional Court has established an equality test to evaluate when discrimination against an enunciated group may be justified: namely, if the act fostering a differential treatment has a permissible and imperative constitutional purpose, if the act is useful and necessary to achieve its intended purpose and if the act maintains proportionality between the benefit obtained and any damages or prejudice caused on other subjects.
- Right to a legal identity (Article 14).
- Right to personal and familial privacy and to one's good reputation. Furthermore, natural and judicial persons have the right to know, update and rectify information collected about them by public and private entities in their records and databases - the constitutional foundation of Habeas data (Article 15).
- Correspondence and other private communications may not be violated. They may only be intercepted or recorded on the basis of a court order, according to terms set by the law. For tax and legal purposes, authorities may demand making available accounting records and other private documents within the limits set by law, only for purposes of inspection, oversight and governmental intervention (Article 15).
- Free development of personality, without limitations other than those imposed by the rights of others and the legal order (Article 16). This is a broad right to individual autonomy and general freedom of action according to one's own beliefs, limited only by the rights of others and the law. Along with the right to a legal identity (personalidad), the Constitutional Court in 1996 found that homosexuality was a valid and legitimate personal orientation.
- Freedom of conscience (Article 18) and freedom of religion (Article 19). The 1991 Constitution removed all references to the Catholic Church, which had been the country's official religion between 1886 and 1936 and was referenced in the former constitution until its repeal in 1991. The 1991 Constitution further declared all faiths and churches equally free before the law.
- Freedom of expression, freedom of the press, right to transmit and receive truthful and impartial information and the right to establish mass communications media. Censorship is banned (Article 20).
- Right to honour, meant in the sense of protecting the esteem and respect a person acquires from others because of virtues and merits. It forms the constitutional basis of for slander and libel cases (Article 21).
- Peace as a right and mandatory duty, understood as the right to live in a society in which conflicts are resolved peacefully (Article 22).
- Right to petition public authorities (Article 23). Article 74 restates the right to access public documents, and adds that confidentiality is inviolable.
- Freedom of movement and residence for Colombian citizens, subject only to the limitations established by statute (Article 24)
- Work as a right and social obligation, protected in all its forms by the State. Every individual is entitled to a job under dignified and equitable conditions (Article 25).
- Freedom of profession or occupation (Article 26). The law may require certificates of competence, and the competent authorities inspect and oversee the exercise of professions.
- Legally recognized professions may be organized into professional associations, whose internal structures and operations are democratic (Article 26).
- Academic freedom - freedom of teaching, research and professorship (Article 27).
- Right to asylum (Article 36).
- Freedom of assembly and right to protest peacefully (Article 37).
- Freedom of association (Article 38).
- Workers and employers have the right to form trade unions without interference by the State. Trade union representatives are provided jurisdiction and other necessary guarantees (Article 39).
- Political rights are listed in Article 40. The expansion of political participation to create a more participatory democracy was one of the major aims of the 1991 Constitution. These rights are:
- Right to vote and be elected
- Participate in elections, plebiscites, referendums, popular consultations and other forms of political participation
- To form political parties, movements and groups without any limits whatsoever; and the right to freely participate in them and spread their ideas and programs.
- Recall elected officials where applicable
- Right to take initiative in public bodies
- Undertake legal actions in defence of the constitution and the law
- Hold public office, except for Colombians by birth or naturalization holding dual-citizenship
- The authorities guarantee the adequate and effective participation of women in public administration.
- Every individual is free and no one may be importuned in his/her person or family, arrested, jailed or have his/her property search except on the basis of a written court order (Article 28).
- A person in preventive detention shall be placed at the disposition of a competent judge within 36 hours (Article 28). This right is closely connected with habeas corpus rights in Article 30, which also sets a 36-hour time period.
- No arrest, detention or imprisonment for debts (Article 28).
- Due process in all judicial and administrative matters (Article 29). This right stipulates:
- Right to appeal. When the accused is the sole appelant, the court may not impose a heavier penalty (Article 31).
- A person caught In flagrante delicto may be apprehended and brought to a judge by any individual. Should the offender be subject to hot pursuit by law enforcement officials and takes refuge in his/her own home, the officials may enter the domicile to apprehend the accused. If the offender should be caught in someone else's home, a request from the resident shall be sought beforehand (Article 32).
- Right against self-incrimination (Article 33).
- Exile, life imprisonment and confiscation are banned. Nevertheless, by court sentence, property ownership may be nullified if it is injurious to the public treasury or seriously harmful to social morality (Article 34).
- Extradition may be requested, granted or offered in accordance with treaties or a relevant statute. Extradition is not granted for political crimes (Article 35). The 1991 Constituent Assembly, influenced by the demands of Colombian drug traffickers such as Pablo Escobar, had banned extradition of native-born Colombians. Following the adoption of article 35 by the Constituent Assembly in June 1991, Pablo Escobar voluntarily turned himself in. Extradition was reestablished by a constitutional amendment in 1997.
Chapter II: Social, economic and cultural rights
The 1991 Constitution guarantees a wide range of social, economic and cultural rights as part of the definition of Colombia as a "social state under the rule of law" (estado social de derecho). These rights are listed in articles 42 through 77, and include:
- Family as the basic nucleus of society, "formed on the basis of natural or legal ties, through the free decision of a man and woman to contract matrimony or through the responsible resolve to comply with it." The State and society guarantee the integral protection of the family, and the family's honour, dignity and privacy are inviolable. According to the third paragraph of article 42, "family relations are based on the equality of rights and duties of the couple and on the reciprocal respect of all its members. Any form of violence in the family is considered destructive of its harmony and unity." The fourth paragraph recognizes the equal rights and duties of all children, whether they be born within or outside of marriage or adopted. Couples have the right to decide "freely and responsibly" the number of their children, and are constitutionally responsible to support and educate them while they are minors or not self-supporting. The regulation of marriage, separation and divorce are determined by the State (Article 42).
- In accordance with the 1991 Constitution's pluralist spirit, this article protects different forms of families, including those outside of wedlock forming legally recognized marital unions, distinct from marriage but sharing the "essential characteristic" of being institutions which create families. Similarly, constitutional jurisprudence has highlighted the 'flexible character' of the family, whereby an individual partakes in several different forms of familial relationships during his/her lifetime. Faced with the issue of same-sex marriage, in sentence C-577 in July 2011, the Constitutional Court found that same sex couples are a recognized form of family that may be originated by natural ties (De Facto Unions) or by legal ties (a Solemn Contract), as there were no legal contract that same sex couples could opt, the National Congress was invoked to correct the "deficit of protection" and was exhorted to legislate on the matter of same-sex relationships. C-577 sentence included a deadline, if Congress would not correct the deficit by June 2013, then same sex couples would be able to opt for a Legal Tie before Judges and notars. Deadline was not met, and by analogy, many Judges married same-sex couples, in sentence SU-214 of April 2016 Constitutional Court ruled that the Legal Tie that corrects the deficit of protection is Marriage and that all judges and notars are obliged to perform that ceremony under the same conditions required for opposite couples.
- Women and men have equal rights and opportunities, and women cannot be subjected to any type of discrimination (Article 43). Furthermore, the State must provide special assistance and protection to women during pregnancy and after delivery, including food subsidies if the woman should find herself unemployed or abandoned.
- Children's rights (Article 44) - explicitly listed are life, physical integrity, health and social security, a balanced diet, their name and citizenship, to have a family and not be separated from it, care and love, instruction and culture, recreation, and the free expression of their opinions. Children are to be protected against all forms of abandonment, physical or moral violence, economic exploitation, dangerous work and sexual abuse. Families, society and the State must assist and protect children. Adolescents are entitled to protection and integral development by Article 45. In a landmark decision in November 2015, the Constitutional Court ruled that excluding same-sex parents from the universe of potential adopters was a limitation of the right of children to have a family and not be separated from it.
- A commitment to elder rights
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