These are the justices that make up the Colombian Constitutional Court.


The ruling class versus the majorities

While popular support for President Uribe’s re-election rises, the elite’s discontent also mounts. How will the Constitutional Court deal with this dilemma?

16 de septiembre de 2009

The ruling on Alvaro Uribe's second re-election is perhaps the most important decision a high court is yet to make in the last century in Colombia. The Constitutional Court faces a big dilemma. On the one hand, popular support for the re-election is increasing and on the other, the elite’s discontent with Uribe seeking a third term is also escalating. While the most recent surveys reveal that 74% of Colombians approve Uribe’s presidency and 50% would vote in favor of his re-election, growing sectors of the academia, the media, big enterprises, NGO’s, and top religious figures -not to mention the most prosperous citizens who used to worship him- have spoken on how one man trying to prolong his rule is dangerous to the country’s democracy.

So while the masses spontaneously cry out to their leader and grant him immense popular legitimacy, the ruling class strongly defends the institutions and the need for a change in government.

It is, without a doubt, a crucial topic for the Constitutional Court, where high-level juridical considerations will meet ample doses of political philosophy.
It is quite a paradox that the numerous irregularities that have been denounced in the process of seeking a referendum are about form and not content. In this painstaking process, the list of abnormalities has been numerous: dubious donations, congressional hearings at unusual hours, and the irregular way the original question to be asked in the referendum was changed, among others. The court can have its say on these misdeeds but those in favor of Uribe’s re-elections -and apparently most Colombians- don’t seem to care. Yet, the referendum represents important threats to the country’s democratic tradition. What is at stake is more than the stability of national institutions, the separation of powers or the system of checks and balances. It is truly about the possibility that the pillars of Colombian democracy are under siege.

One must also think about the limits the majority has or should have, and whether it is acceptable to alter the core principles that have ruled the country throughout its history on its behalf.

“The violation of the Constitution’s basic structure is unconstitutional. There are a set of central values that cannot be touched” stated former Minister of the Interior Humberto de la Calle in El Tiempo, the country's biggest newspaper.
It comes down to this: there are many irregularities that don’t seem to bother the majority of those in favor of the re-election, while the institutional consequences of the re-election trouble the minority that is against Uribe’s re-election. The Constitutional Court is caught between these two extremes. Colombia’s future is in the hands of these justices. Their ruling could go either way because there are convincing arguments for both interpretations. The court, in its decision, must part from two premises: first, that the majority of Colombians want Uribe’s re-election. Second, that so far Uribe has acted, in general terms, within accepted juridical limits. Thus, it’s not a question about whether a constitutional coup will occur, because that would not be the case, but about whether we are stretching our institutions to their limits. In other words, within legal limits, the basic principles of Colombia’s Constitution and democracy would be affected.

This topic has been a matter of heated debate. Much of what has been said has been against the perpetuation of a single person in power or personal criticism against the president. In the avalanche of protests we have seen a complete range of fireworks: the vain dialectic of the editorialists, the intellectual and academic voices that speak from their abstract world, the ephemeral declarations from the church, and the uncomfortable silence of big businessmen. But behind all these statements, there has been more personal conviction than rational arguments. Yet, in the midst of the river of columns and declarations, some considerations are worth noting.

The first comes from historian Jorge Orlando Melo who has shown, from a historic perspective, that when the majorities have decided to change the rules without the consent of the minorities in Colombia, those experiences have ended up in wars or periods of turbulent unrest. For example, this lead to Simon Bolivar's dictatorship in the name of the people, and happened again in 1859 and 1898 when Congress issued electoral laws favoring the government In place. In both cases, the result was civil war. For Melo only the 1910 political reform, which granted limited rights to the minorities, generated a period of political stability. That is why in the United States the Constitution cannot be changed without the consent of the minority. "The idea that the majority has the right to decide the rules on its own created chaos and instability. Changing the rules in the middle of the match, when it suits the majority, goes against the logic of a mature democracy. In Colombia this has happened many times and the results have always been bad" affirms Melo.

Another argument that has been highlighted in the midst of the anti re-election artillery has been the one published by Juan Camilo Restrepo, former minister, in the economic journal Portafolio. He warns the country is not facing a referendum but a plebiscite. A referendum is a question made to society for it to decide on a decisive issue. For example whether child abusers deserve life sentences or if same sex couples can adopt. They are common in many European countries. On the other and, a plebiscite "is commonly about persons, on society's desire to allow certain people to prolong their rule or not…and our Constitution allows referendums, not plebiscites." For Restrepo, the government is fooling the country. "What is truly a plebiscite is being advertised as a referendum" wrote Restrepo.

This is a central issue for the Constitutional Court, who will have to decide whether we are dealing, in truth, with a referendum or a "plebiscite in disguise."

A third argument goes against the legislative power and its ability to alter the Constitution. It comes from researcher and El Espectador columnist Mauricio Garcia: he states that while the Congress may reform the Constitution, it cannot replace it. And this is what happens with the approval of the referendum because Uribe's second re-election destroys institutional controls and ends the alternation of power which are, for García, the two essential elements of the Constitution. "One of the key principles of modern law is that the rules are general and abstract. They are not made for anybody in particular, like in monarchies or clientelistic regimes. But in Colombia, the referendum is meant for both: to favor somebody in particular, who governs, and grant favors to those who support him" wrote García in his column.

But for some sectors of the establishment, Colombian democracy is so terribly damaged that it must be restored, not defended. This is what Claudia López, El Tiempo editorialist, believes when she affirms that with the first re-election and now with the second one, Colombia's existing institutions, key in fighting the terrible violence and drug-dealing problems, have received a mortal blow.

What aggravates the leading class and the intellectuals is that the rules and the state are changing to benefit a single person, which is contrary to the political culture and the constitutional tradition of the country. Cristina de la Torre, editorialist, said it bluntly. "Uribe flatters popular sovereignty and wraps it up in honey to end, just like that, with a 200 year process of building a democracy."

As violent as that phrase seems, it echoes the sentiment held by the ruling class, what could be called Colombian intelligentsia, who feels the President is running the country in the same way he runs his ranch. A country's institutions are communal heritage that have been built throughout centuries. The power in a democracy, however, is borrowed and temporary. Alvaro Uribe is forgetting these two principles. And it is amazing that such a reputable and worthy person would do such a thing.

Besides, no respectable country, mature democracy, or civilized society creates laws in behalf of a single person. And that, implausible as it sounds, is happening in Colombia.
The Constitutional Court has a difficult job because it must mediate between the historic weight of the country's democratic tradition and the unshakable pressure of the majority who has a political expression. Every justice on the court will have a piece of Colombia's destiny in their hands.

Yet, the biggest challenges facing the court are not the juridical concepts expressed by other voices, but those expressed by the court itself when it approved the first re-election four years ago. Back then, the Court stated that no person could be elected more than two times as president of Colombia. For Uribe's third term to be possible, the court must radically change its standing, going against its former resolution.

This may occur. This means that if the president has resolved his personal crossroads about staying in power, it is now the Court who must face a difficult crossroads: allowing the president to do so.

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