This new complex judicial equation and Pres. Santos’s steam-rolling through the Colombian Congress, controlled by his political coalition, controversial bills for legislative and Constitutional reform—including a new-fangled plebiscite–aimed to eventually implement and ratify an eventual overall peace accord have raised questions of whether Santos’ efforts for a cure would turn out to be worse than the malady by perhaps seriously harming Colombia’s “institutionality” and undermining the checks and balances in its current Constitutional system, as flawed as it may already be, and open the door to future serious problems.
Regarding the plebiscite that Pres. Santos is pushing, Uribe, the FARC, and others are against a plebiscite as a mechanism to ratify any overall peace agreement. They cite that the Colombian Constitution, as currently standing and which Santos wants to reform on peace process matters, says that a plebiscite is an expression of the electorate on a proposition or policy and that it is not Constitutionally binding. A plebiscite is not to be confused with the Constitutional mechanism of a “referendum,” which is Constitutionally binding. Pres. Santos would like to see the Constitutional Court approve his reforms on the plebiscite as being Constitutionally binding. The Constitutional Court review is being awaited with much anticipation, and its decision–expected perhaps in March–would appear to have a substantial effect on the peace process, at least from the standpoint of Pres. Santos’ strategy.
Why has Pres. Santos opted for a plebiscite instead of a referendum? Because as Santos himself has said, a referendum would be suicide because its threshold for approval is that at least a quarter of the electorate’s national census has to vote in it in a country where abstentionism is often high, and half of that plus one voter has to vote in favor of the proposition. Given that Uribe and his opposition Centro Democratico party could call for a boycott of the referendum, it could likely sink it. Another factor against a referendum, according to some, is that the courts could require that it have votable questions point by point, and in an overall peace agreement going over 200 or 300 pages, that wouldn’t seem to be practical.
Whereas on Pres. Santos’ choice of a plebiscite, on which Santos says he is playing fair and creatively, critics chafe that he had his Congressional coalition, lavished with pork-barrel-style politics, slap-dash reforms together in record time in smoke-filled-backrooms-style whereby the threshold percentage of voters having to vote would drop from 50% of the electorate’s national census to some 13% of it voting “yes” to make the plebiscite valid, with half plus one votes in favor to approve the proposition, as is understood. Moreover, only one question or a few questions (presumably generalized, and maybe somewhat loaded suggesting peace, by Santos forces who could be part of phrasing the question or questions) would be on the ballot.
The FARC–which has always insisted on a National Constituent Assembly (Constitutional assembly)—has been clear for a long time in its rejection of “unilateral” reforms, like the plebiscite pushed in Congress by Santos and his political coalition, and that these “unilateral” actions are supposedly “misleading” to the public and doomed to lead to a “descalabro” (“breakdown”).
Said FARC Secretariat member and peace negotiator “Pastor Alape” in a public statement January 14: “The objective of the process is to find consensus between contrary positions, before imposing one’s own. Announcements not agreed to, like the plebiscite initiative, the convening of Congress to regulate supposed concentration zones [for eventual FARC demobilization] or the conformation of a Special Legislative Commission [to pass peace-process reforms] make part of an attitude that makes invisible the interlocutor [the FARC] at the [peace negotiating] table and gets ahead of results still pending to be dealt with.”
Also highly critical of Pres. Santos’ notions for peace-accord ratification and reforms is Uribe’s Centro Democratico. Says the Centro Democratico website, “What is most worrisome are three elements that alter the constitutional order of the country: the plebiscite, the “little Congress” [a special Congressional commission to fast-track peace-process reforms], and the extraordinary faculties for the president.”
Said Centro Democratico’s director and former 2014 presidential candidate Oscar Ivan Zuluaga, who lost to Santos with 45% of the vote to Santos’s 51%: “The government has proposed a plebiscite for ratification, which is not the consecrated mechanism in the Constitution for ratifying an agreement like that which is being discussed in Havana. It’s a mistaken path that creates a very delicate precedent with the reform of thresholds, because it breaks the elemental principal of Constitutional order, the balance of powers…”
What does Centro Democratico propose? Carlos Holmes, Zuluaga’s vice-presidential running mate in 2014, said in SEMANA magazine: “I have been speaking of the possibility of a ratifying consultation, through which Colombians would be asked about the detailed content of the [peace] accords and simultaneously it would be asked if the citizens wish or not that these accords are developed through a transitional Congress for peace or a Constituent assembly perfectly defined regarding its competence, its integration and the period of sessions.”
Prefacing that comment, Holmes had said, “The Constituent [Assembly] that the FARC talks about is totally distinct from that which Centro Democratico proposes. That which the FARC proposes would be a tripartite Constituent [Assembly], integrated with Constituent delegates of popular election, others with seats assigned directly to the FARC, and another part integrated by a kind of special-interest composition, and it wouldn’t be able to touch the hard nucleus of the [peace] accords. It is to say the FARC is proposing a kind of notary dispatch for effect of putting a seal on what is agreed which would be unmodifiable. Centro Democratico is thinking of a Constituent [Assembly] of popular election in which there would be an ample deliberation about different themes.”
So, why does Pres. Santos insist on his “unilateral” measures for peace-process ratification and reforms? From his standpoint, he may feel that he has no choice.
A) He may feel that he could expose himself to a serious political hit, if he were perceived or misperceived to be asking the outlawed FARC for permission for making legislation and Constitutional reforms. In such a case, someone could perhaps ask something like, “What’s this? The outlaws are making the laws?” We have already seen a reaction like this by some to the victims’/justice agreement. But, when it comes to judicial matters, Pres. Santos could say that the FARC essentially plea-bargained with the Colombian government, like “paramilitary” groups did with Pres. Uribe, on judicial sentences and structure, even though the FARC would disagree with that phraseology. The flip side, critics may argue, is that the FARC got Pres. Santos—supposedly “over-anxious” to meet his March 23 “deadline” for an overall peace accord—to cave in to the FARC in allowing it to supposedly craft its own terms of justice. Pres. Santos would reject that view.
B) As Pres. Santos has said, he has to try to at least have some ground-work in place and get a head-start in preparing for when an overall peace accord is eventually signed; otherwise, there could be legislative, reformist, administrative and bureaucratic lags after an overall agreement is signed which could bog down implementation and thus perhaps threaten a happy outcome. Former chief of staff of British then-Prime Minister Tony Blair, Jonathan Powell, said that Blair’s predecessor then-Prime Minister John Major encountered such problems in Major’s unfulfilled attempts at peace in Northern Ireland.
Pres. Santos notes that it doesn’t hurt to put something in place unilaterally, while continuing to negotiate with the FARC, and that it could be seen whether or not modifications, subtractions or additions could be later made. As long as it doesn’t side-track focus at the negotiating table, that would seem to make sense. But the FARC argues that it’s a distraction that wastes time and tangles things up with “weeds,” as it says the unilateral, Santos-promoted Judicial Framework for Peace legislation (“Marco Juridico para la Paz”) did. The Judicial Frame-Work for Peace legislation was passed some time ago by the Colombian Congress after months of work, yet eventually superseded by the peace table’s victims’/justice agreement’s Special Jurisdiction for Peace, which arguably doesn’t need the Judicial Frame-Work for Peace legislation as a basis, though supporters of the Judicial Frame-Work for Peace legislation say it helps.