CAPITULO I: FUNDAMENTO TEÓRICO METODOLÓGICO DE LA INVESTIGACIÓN.
Capítulo 2 Análisis de la Incertidumbre en los Balances de Masa y Energía en la planta de
2.5. Balance de materiales y energía considerando la incertidumbre
and the ‘divergence period’
The 1991 Colombian constitution was the outcome of a lengthy process of deliberation
whose delegates147 had the mandate –throughout a Constituent Assembly148- to reform
the constitution of 1886 that had failed to provide strong democratic institutions in order to overcome (i) the perplexing crises and (ii) the political exclusion caused by
the legacy of bipartisanship labelled as the ‘National Front149’ Therefore, the aim of
such compelling reform was to ‘endow the country with modern democratic institutions designed to foster greater participation [and inclusiveness] in the democratic process, to strength the rule of law in a country where the proliferation of political violence had corroded Colombian political and legal institutions, and to secure a firm ground for human rights with mechanisms to protect these rights' (Fox, et. al. 1992). As a result, the whole renovation of the political structure conducted throughout the 1991 constitution ‘strengthened the checks and balances of the political system in an effort to endow political institutions with greater legitimacy after decades of limited participation and low representation’ (Cardenas, et. al., 2008). Thus, the enactment and implementation of the new set of rules in the new constitution can be regarded as a good example of what Noguera-Fernandez (2011) has called a
147 These delegates were chosen through direct elections pursuant to a national referendum.
148 The composition of this Assembly reflected the national commitment to inject a higher and broader
degree of participation and inclusiveness into the traditional framework of Colombian government. In fact, this Assembly was composed of 70 representatives elected in December 1990 under new electoral rules designed to be fairer to left wing parties, former guerrilla movements (e.g., M-19 and EPL), and minority groups that never had a real chance to be part of the government (Yarbo 1991). The composition of this institution also indicates the renewal of the political elites that used to rule the country over the ‘transitional period.’ In fact, this Constituent Assembly was created with a pluralist ‘spirit’ to include all the factions that the ‘National front pact’ excluded since 1950s.
149 For a more compelling conceptualisation of the origin and effects over the legal, economical, and
political impact this kind of political settlement brought about to Colombia please refer to chapter 2, section 2.2.
‘progressive constitution’ which, in turn, served as a model for other polities in the
region to conduct their own constitutional reforms or updates.150
Thus, the progressiveness of the Colombian constitution will be studied by using the three criteria mentioned above: electoral reforms, power distribution reforms, and policy-making reforms. Table 6.1 shows in detail these criteria in a comparative fashion and analyses how these reforms were enforced over the ‘divergence period’ using the 1991 constitution and further amendments against the provisions contemplated by the old 1886 constitution during the ‘transitional period’.
Table 6.1 clearly shows that the inclusiveness and procedural features included in the 1991 constitution are, without doubt, some of the distinctive and more outstanding characteristics of this institutional reform. In fact, the provisions contemplated in the electoral reform (see first row in table 6.1) were an attempt to curtail the concentration of power that the executive branch of government used to have when the bipartisan
tradition ruled the country over the whole ‘transitional period.’ For instance, the
control over the executive branch increased due to various reforms. First, by changing the electoral formula to elect the president from the plurality method to the majority runoff method. Second, by adding a proscription of presidential re-election; and third, by changing the mechanisms to appoint governors, mayors and the vice-president that went from direct appointment by the president to popular election. Additionally, the electoral formula to elect the legislature was also changed. Colombia, over the whole ‘transitional period’ and the first part of the ‘divergence period’ (until 2002) had a
semi-proportional system that used the Hare quota system151 and largest reminders to
150 In fact, the successful implementation of the new and progressive Colombian constitution served as
a benchmarking model for the constitutional design followed by other Latin American countries that were keen to reform or update their old constitutions. Thus, the cascade effect caused by the enactment of new constitutions in the region by the late twentieth and early twenty-first century gave rise to what is known today as: ‘Latin American Neo-constitutionalism.’ This concept refers to no less than a decision made by some states to take distance from the western classic constitutionalist models on which most of the Latin American countries used to relied on as a basis to formulate their first constitutions after independence in eighteenth century. In this regard, then, Neo-constitutionalism became the blue print to restructure both the state and the functioning of political institutions exerting a positive influence in the reformation and constitutional design in countries such as Ecuador (1998-2007-2008), Venezuela (1999), and Bolivia (2006-2009). In sum, following Noguera-Fernandez (2011) it can be argued that the 1991 Colombian constitution can be considered ‘as the starting point of the new constitutionalism in the [Latin American] continent’ (Noguera-Fernandez 2011, p. 18).
151 The Hare quota system works as follows: In each electoral district, seat quotas are calculated by
dividing the number of votes by the number of seats. Seats are first allocated to parties according to integer multiples of quota’s. That is, if a party has double the amount of votes as the quota, the party is
distribute votes, and had no election threshold (Wills-Otero 2009). However, in 2003 a constitutional amendment reformed the electoral system by introducing the D’Hondt electoral formula to award seats in congress and introduced a 2% electoral threshold of the valid votes for the parties to participate in the in the distributions of seats in congress, and a single-party list. Thus, the 2003 constitutional amendment changed the electoral system from a semi-proportional to a proportional system with a much lower party fragmentation (Wills-Otero 2009).
Other reforms that were put into consideration –and had never been provided by the 1886 old constitution-, were the increasing participation of new political parties. This, reform, first, guaranteed seats for minority groups such as indigenous and black communities; and second, ensured the inclusion of the left-wing political parties within the Constituent Assembly from the very outset of the constituent process. This reform also, thereby, increased the ‘effective numbers of parties […] from 2.16 in Congress [which was the average number of political parties over the ‘transitional period’] to
4.45 in the Constituent Assembly [time from which the ‘divergence period’started]’
(Negretto 2013, 177).
As for the power distribution reforms, table 6.1 also shows (see second row) that the 1886 constitution, in contrast to 1991, established a strong state with the presidency as
its dominant feature.152 The president also had absolute control over the management
of both public and private credit in the country, and over the national budget, not to mention the faculties he had to declare the state of siege anytime he considered it necessary to govern by decree. Consequently, the Constituent Assembly in 1990 focused on creating a more powerful system of checks and balances over the president by introducing a more active role for congress, the judiciary, and sub-national authorities that imposed increasing constrains on the executive’s authority (Spiller, et. al 2008; Cardenas, et. al 2008). Thus, under the new Constitution, the expansive powers granted to the president were scaled back as the ‘new rules of the game’ imposed constitutional provisions to limit the executive´s power in favour of the
assigned two seats and so on. If all seats are not assigned using the quota, seats are awarded to parties with the largest remainders of votes (Roland, et. al. 2005).
152 For instance, over the ‘transitional period’ it was common that 160 state companies were subject to
the control of the president, including the banking sector, electricity, oil, and other industries (Art. 120, 1886 Colombian Constitution).
legislative and judicial branches of government (Art. 212 – 214, 1991 Colombian Constitution).153
Finally, the policy-making reforms (see third row in table 6.1) included in the 1991 constitution were also an endeavour to prevent the president’s strong agenda setting granted by the 1886 old constitution. Thus, one of the greatest achievements attained by the Constituent Assembly can be summarised by repealing two important provisions granted in the old constitution. First, the abolition of the state of siege that
granted the president to legislate by decree overpassing the Congress.154 And second,
the inability of the president to convert a temporary decree into a permanent one based
upon the declaration of the state of economic or social emergency.155 Similarly,
constitution makers also curtailed president’s unlimited delegation of legislative power so that he could not use this provision as a way of legislating for his own benefit. Instead, the Assembly granted the ‘delegation of legislative powers to the executive with the proviso that the president must request that delegation and Congress must be explicit about the limits and terms of the delegation’ (Negretto 2013, 192).
153 An example of this was the creation of the Constitutional Court, and the offices of both the Attorney
General and the Prosecutor General as institutions that would strengthen the control over the government. The Attorney General office was established to oversee the behaviour of Public officers – including cabinet members and the president, whereas the creation of the Prosecutor General office was meant for prosecuting all kind of crimes. The Senate would appoint the former from a list of three candidates proposed by the president, the Supreme Court, and the state council. As for the appointment of the latter, the Supreme Court should elect it from a list of three candidates submitted by the president (Negretto 2013, 190).
154 Over most part of the ‘Transitional Period’ –thirteen years (1974 – 1990)- the state of siege provision
was the provision presidents resorted to decree laws and create legislations overpassing the control of the Senate. Thus, presidents could reform codes, regulate economic activities to deal with economic crisis, and so forth, which conferred unlimited powers to secure governability.
155 Under the new constitution, this would be possible only if Congress support and vote in favour of
Table 5.1.
Main constitutional reforms and further amendments in Colombia: comparing the
´transitional period´ and the ´divergence period
´
Criteria 1886 Constitutional provisions:
´Transitional Period´
Reforms outlined in the 1991 new constitution:
´Divergence period´ Passed
E lect o ra l ref o rm s
Presidential election by majority formula
Presidential election by majority runoff formula Yes
Proscription on presidential re-election Yes
Term limits for legislators No
Congress appoints a vice president in case
of president´s absence, resignation or dead. Popularly elected vice president Yes
Semi-proportional electoral system with Hare quota system at local district levels, and no threshold for legislative elections
The 1991 initially did not change the electoral formula to elect the legislature. The Hare quota System was still in place.
Yes The 2003 electoral reform abolished the Hare quota
system by introducing the D'Hondt formula with a nationwide electoral district, and a 2% threshold for legislative elections.
With the introduction of the D'Hondt formula the electoral system passed from a Semi-proportional system to a Proportional one.
President appoints governors and mayors Enable popular elections of governors and mayors Yes
Congressional and presidential elections are no concurrent
Extension of the no concurrent elections already
applied to national elections to the local elections. Yes
P o w er d is tri b u ti o n ref o rm s NA
Downsizing the Congress, and the election of senators from a special district for indigenous and black communities was set up.
Yes
President as a dominant figure to rule the state.
Bigger participation and political control by the
Congress over the president Yes
Motion of censure over the Executive branch of
government Yes
Broad appointment powers by the president over the judicial branch
Creation of the Constitutional Court whose
members were appointed by the Congressb Yes
Creation and appointment by the Constituent Assembly of the Attorney General office, the Prosecutor General office, and the Constitutional Court. Yes P ol ic y M ak in g R ef or ms
President's strong agenda setting powers: i) Government's freedom to declare State of Siegec whenever appropriate
Abolition of the State of Siege provision Yes
ii) Enactment of permanent decrees by the Executive during periods of economic and social emergency without Congressional approval
Decrees issued by the Executive during state of economic and social emergency would lapse if not converted into law by Congress.
Yes
Unlimited delegation of legislative powers to the president
Temporal and substantive limits on the delegation
of legislative powers to the president. Yes
NA
Right of president to call popular referendums with
the approval of the Senate Yes
Source: Author's compilation from: Negretto (2013); Cardenas, et.al. (2008) Notes:
a With the enactment of the new constitution, the House of Representatives was reduced from 199 to 161 members and the Senate from 112 to 100. It also
introduced 5 more deputies from special districts and 2 more senators from a special district for indigenous communities.
b The appointment of the members of the Constitutional Court came from a list of candidates put forward by the president, the Supreme Court, and the state
council (Negretto 2013, 189).
c The State of Siege provision allowed the president to legislate by decree overpassing the Congress.
In sum, the electoral, power distribution, and policy-making reforms implemented by the 1991 constitution illustrate the Constituent Assembly’s intention to curtail the
concentration of power that the executive branch of government used to have when
the bipartisan tradition ruled the country over the whole ‘transitional period.’Hence,
the outcome of such reforms during the ‘divergence period’ can be summarised as follow: (i) they promoted more inclusive electoral rules allowing the expansion of both the electoral franchise for new political parties, and the inclusion of minority groups into the legislative branch of government;156 (ii) it facilitated political participation of large segments of society that had been excluded of the political contest, thereby, increased their popular sovereignty that had been long forgotten from the previous constitution; and (iii) it made the executive branch of government loose important traditional prerogatives so that the legislative branch could be strengthened. Hence, the renewal of the political structure for a much more pluralistic, and representative one brought the enactment of a new constitution in 1991 whose reforms had a direct and positive impact on the democratic performance process just after the beginning of the ‘divergence period’.