—Jorge González Jácome, Associate Professor of Law at Universidad de los Andes
[Editor’s Note: This is one of our ICONnect columns. For more information on our 2025 columnists, see here.]
The government of Colombia’s left-wing president, Gustavo Petro, has recently put forward the idea of using a citizen participation mechanism to revive one of his social reforms that was defeated in the Colombian Congress. Beyond the debate over whether his labor reform is appropriate or not, his stance of consulting the people on the advisability of such changes reveals a Colombian tradition that has shaped part of the country’s constitutional debate in the 21st century: the theory of constituent power. While the mechanism to consult on the convenience of a legal reform does not involve a constitutional amendment, President Petro’s initiative must be read in the context of his frequent emphasis on the importance of involving the people in decision-making and countering the alleged influence of elitist powers entrenched in Congress. According to Petro, the people must take to the streets to pressure institutions that are unwilling to make the decisions that he promised during his presidential campaign.
I do not wish to debate whether the Colombian president accurately describes the reasons why his reforms have failed in the legislature or are at risk of falling in the Constitutional Court. In fact, reasonable positions have pointed out several issues—not exclusively political—with his proposals. Rather, I would like to stress how this situation can open fruitful debates from a comparative constitutional law perspective: Under what circumstances can appealing to the people be a viable option for resolving political and constitutional conflict, and what explains the popular responsiveness (or lack thereof) to those efforts?
This question is important because three of the four presidents elected in Colombia in the 21st century have relied on mobilizing public opinion. At the beginning of his term, Álvaro Uribe Vélez (2002–2010) called for a referendum in which he asked citizens to vote on changes to specific aspects of the 1991 Constitution, particularly regarding the political system. After the peace negotiations with the FARC guerrilla, President Juan Manuel Santos (2010–2018) called on the public to vote in a plebiscite to approve or reject the final peace agreement. Although a plebiscite in Colombia does not entail a constitutional amendment, the people were called upon to legitimize a challenging negotiation aimed at ending the armed conflict. Now, Gustavo Petro (2022–2026) has repeatedly advocated for activating a popular force to push for reforms that have failed to pass in Congress.
In the latest chapter of this story, the government intends to propose a popular consultation (consulta popular) that would call on citizens to vote on the labor reform that aims to enhance workers’ rights, promote job stability, regulate digital platform labor, increase compensation for work on Holidays and adjust night work hours among other things. Business associations and economic pundits complain that the reform will raise labor costs and could this discourage hiring and strain small and medium-sized enterprises in the midst of a fragile economic situation.
In the cases of Presidents Uribe and Santos, their flirtation with the people and constituent power ended in disappointment for their governments. Uribe failed to obtain the necessary majorities for the proposed referendum to become a constitutional reform, and Santos’ defeat in the plebiscite is infamous, casting a shadow over the peace process with the FARC that never fully waned. President Petro’s gamble does not seem to have better prospects, as it combines the challenges faced by his predecessors: like Uribe, Petro’s proposal will only succeed if it meets certain constitutional and legal requirements—for instance, the debate over whether a popular consultation can be used to approve a statute. Additionally, as in Santos’ case, Petro will use this mechanism to confront an issue that deeply divides Colombian society. Far from reaching consensus, turning to the people may intensify tensions, as happened with the peace process during Santos’ time.
The insistence on constituent power may reflect a political impulse in Colombia stemming from the success of the 1991 mobilization of the people to call for a Constituent Assembly. The fact that constituent power emerged in that moment has kept it alive in constitutional discussions in the decades since. The theory of constitutional substitution—or the unconstitutionality of constitutional amendments due to competency issues—has fueled ongoing debate around constituent power in Colombia. However, the possibility that popular mobilization can lead to institutional transformation through mechanisms such as referendums, plebiscites, or Petro’s proposed popular consultation seems slim, or at the very least, faces significant hurdles. It is misleading to think that the spirit of the 1991 Constitution offers guidance for the present moment. The acceptance of the 1991 popular mobilization relied on the construction of an agreement that the vast majority of voters supported at the polls. Perhaps the shared idea that a broad agreement underlies the 1991 Constitution explains its resilience in the last decade and a half, as well as the general acceptance of specific instances of aggressive judicial review by the Constitutional Court. In contrast, President Petro’s initiatives take place against a backdrop of deep division, which popular mobilization does not seem capable of resolving satisfactorily.
This situation places the 1991 Colombian constituent movement as a mirage that successive governments see as a promise for legitimizing their authority. It seems that Uribe, Santos, and Petro have all tried to resurrect that foundational moment for their own administrations, drawn by the appeal of constituent power—but they fail to secure the majorities necessary to institutionalize their proposed changes under the existing legal and constitutional framework. Perhaps that is why Gustavo Petro’s discourse is not entirely institutional; rather, it follows two paths: a push for a popular consultation, and at the same time, a continuous call for his supporters to mobilize outside institutional channels. The question that seems to loom over Colombia in the coming year is to what extent this extra-institutional mobilization will be channeled into institutional paths, and to what degree, if this fails, there will be an impact on the Colombian Constitution.
Suggested citation: Jorge González Jácome, Flirtations with the People: The Glimmer of the 1991 Colombian Constitution, Int’l J. Const. L. Blog, Apr. 23, 2025, at: http://www.iconnectblog.com/flirtations-with-the-people-the-glimmer-of-the-1991-Colombian-Constitution/
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