Congress passed amendments to the Constitution creating the ‘Integral System of Truth, Justice, Reparation and Non-repetition’ (‘El Sistema law). This law is part of the fast-track package used to implement the peace deal signed between the government of President Juan Manuel Santos and the Revolutionary Armed Forces of Colombia (FARC) guerrillas on 24 November 2016. The new El Sistema law brings the implementation of the deal one step closer to reality as it creates a unique transitional justice mechanism oriented towards truth and reparations to victims. Yet the law’s limited reach and lack of popular support for the deal may stall further progress.
The Legitimacy Question
The document signed in November 2016 is the second version of the peace deal, after Colombian voters rejected by a narrow margin the first draft in the referendum of 2 October 2016. This result was largely unexpected. There are many factors that explain the failure of the first peace deal in the national plebiscite. The first is the strong cult of personality and influence of the former President Álvaro Uribe, who actively campaigned against signing a peace treaty with guerillas by appealing to concerns of different groups of population. Bad weather conditions on the polling day, coupled with the lack of infrastructure in many parts of the country, also effectively prevented many people from travelling to polling stations. Finally, little information and time was allotted to voters to study the deal prior to the referendum.
The ‘no’ result created serious challenges for the government, which wished to press ahead with the deal. Over the course of several weeks following its initial rejection, the government of President Santos introduced paytm database amendments tackling some of the concerns of the ‘no’ campaign. For example, the new deal provides for a more limited role of international judges within the newly created Special Jurisdiction for Peace (SJP) and guarantees special treatment for the army. These changes were limited, however, as the negotiators balanced conflicting interests of different stakeholders – ‘yes’ and ‘no’ campaigns, FARC, and the civil society.
In order to secure approval of the second deal, the President chose not to risk holding a second referendum but rather invoked his special powers in passing ‘fast-track’ legislation through Congress. The fast-track solution means that the main laws implementing the peace deal were adopted as a ‘package deal’ in a ‘yes’ or ‘no’ vote in Congress. These laws entered into force upon their adoption and prior to their review by the Constitutional Court. This is in contrast with the regular procedure, whereby the Constitutional Court scrutinizes the project of the law before it enters into force. While the Constitutional Court retains its critical review powers with respect to fast-track laws, the fact they are already in force make it more difficult politically to strike them down.
The government’s decision to proceed along the fast-track route, rather than holding a second plebiscite or giving up on the deal altogether, delivered a strong blow to the legitimacy of the eventual outcome, dividing the country into two camps – those who voted ‘yes’ and those who opposed the deal. The decision created room for identity politics, with the population currently split between those who are ‘against the peace’ and those who believe their votes ‘have been stolen’. The standoff between two ideological camps makes it essential for the success of the deal to move forward with its implementation in an expedited fashion. With presidential and parliamentary elections looming in 2018, the hope is that the deal will gain its legitimacy through its effective implementation, thereby eliminating the possibility for a future government to challenge the hard won peace arrangement.