Colombian government negotiators and the Revolutionary Armed Forces of Colombia (FARC) guerrilla group agreed last week on a way to protect an eventual peace agreement from future political meddling — write it into the country’s constitution.
The controversial process, which has been referred to as “armor-plating” or “shielding” the peace deal, is technical and somewhat legally complicated. Some politicians have called it undemocratic, others simply say it’s a necessary step to ensure that an eventual accord stands the test of time.
“It’s a unilateral concession to the FARC,” argued Senator Claudia López on Friday. “Any deal should go first to a plebiscite and then be incorporated into law only if the ‘yes’ votes win.”
“What we have here is government and FARC action to destroy democracy,” said former President Álvaro Uribe.
“This is an important deal, and it’s important that that deal have legal security,” explained Senator Roy Barreras.
“A guerrilla group will not lay down arms and rejoin society unless they have a guarantee that a deal will be upheld,” said Humberto de la Calle, Colombia’s chief negotiator at dialogues with the FARC in Havana.
Essentially, the proposal announced Thursday would make an eventual peace deal a “special humanitarian accord,” a term which carries weight under international human rights law. Doing so would allow greater global oversight of the post-peace era.
The proposal also involves “shielding” an eventual deal in Colombia’s constitution, a political process that will have to start well before a final accord is signed.
Under the plan, President Juan Manuel Santos will first send a transitional constitutional amendment to Congress.
The House and Senate will then vote that amendment up or down, at which point it would need to be written into the Colombian constitution.
The Constitutional Court will then have a chance to speak up on any and every component of the agreement should it so choose.
The idea is that by writing the accord — and its myriad legal provisions, some of which would otherwise contradict existing law — into the constitution, it will be more difficult for future governments to undo it.
Of course, changing the constitution to reflect a peace agreement before that agreement has been finalized is a tricky proposal.
“What would happen if the Constitutional Court says this can’t happen? What happens if the people vote ‘no?’” wondered Marta Lucía Ramírez, a former senator and minister of defense during a roundtable discussion at the Universidad Externado on Tuesday.
Indeed, notably absent from the legally complex pathway laid out on Friday are details on how an eventual plebiscite or public vote would affect the final peace accord, particularly if it’s already part of the constitution.
A public vote has long been a cornerstone of the government’s requirements for a peace deal. But the closest mention of a democratic component in the joint FARC and government statement last week simply promises “there will be a mechanism that guarantees Colombians can make a conscious decision on the pact.”
Government officials were quick to assert that that means a public vote.
“Let it be clear that these legal mechanisms … even including the elevation of the Havana agreement to the category of special accord … none of these mechanisms will take effect before Colombians have taken to the polls to vote on the peace deal,” said Minister of the Interior Juan Fernando Cristo.
“You, Colombians, as I have said from the start, will have the final word, in order to approve or reject peace accords at the polls,” said President Santos on Monday.
Nonetheless, the legality and democracy of other components of the proposal to shield the deal in Colombia’s constitution have sparked plenty of debate.
“I have doubts and serious criticisms,” said Carlos Holmes, former minister of the interior and a former mayor of Cali, of the process. “It’s illegal and it’s constitutional magic realism.”
Both Holmes and former Minister Ramírez have argued that in order to qualify as a special humanitarian accord, the peace deal must meet certain standards of international human rights law — standards they say the current deal in Havana does not live up to.
Human rights law calls for prison sentences for crimes against humanity, for example. As it stands now, the FARC peace deal only calls for “restrictions on liberty” over a set period of time.
Colombia’s government asserts that it has consulted with international human rights experts, including the International Committee of the Red Cross on such issues and has received approval to move forward.
There is one point on which almost every public official agrees, however — the Colombian people will ultimately “armor plate” any peace agreement.
“The most important way to give legitimacy to the deal is that a majority of Colombians choose peace,” said De la Calle, who also called for a more civil discourse on Tuesday. “We need to discuss this rationally. There is too much anger and hatred in our society.”