Introduction
In the summer of 1949, the 1886 Colombian Constitution turned 73 years old, an all-time record of endurance in a region where constitutions changed so frequently that in a library they would be located in the periodicals section.Footnote 1 However, in the ten years that followed, from 1949 to 1959, Colombia underwent a constitutional crisis that included the closure of Congress, the annulment of judicial power by the president, the call for a constitutional assembly to replace the landmark 1886 Constitution, a coup d’état that was approved by the constitutional assembly, and the establishment of a military government that, after governing for four years, was successfully deposed based on the argument that it violated the 1886 charter. Interestingly, therefore, during the decade 1949–59, whereas democracy died and revived, the Constitution of 1886 never ceased to be the framework under which politicians of different stripes operated. Even when General Gustavo Rojas Pinilla became president through a coup d’état and was at the height of his popularity, he never dared to fully disregard the constitution. In fact, his demise started when he attempted to ignore the fundamental law and bypass the four-year presidential succession rule established in the 1886 text. The constitution, therefore, was also the basis upon which political actors coordinated for the return to a democratic regime.
This article seeks to shed new light on a key and complex period in Colombian history, from the electoral victory of the Liberal Party in 1930 to the end of the Frente Nacional (National Front) in 1974. We analyse this period from a constitutional politics perspective and challenge the commonly held view that during those years the constitutional order broke down in Colombia, which explains the prevalence of existing analyses that highlight the competition among the elites and the resulting repertoires of violence. Specifically, most of the scholarship already produced analysing this period, in both English and Spanish, has focused on the breakdown of pacts among the elite and of democracy, the spread of political violence through the country, or the erosion of political representation due to the growing disconnect between the parties’ leadership, the party cadres and the population.Footnote 2 In contrast, we focus on the continuity of the Colombian Constitution of 1886 during this period but also on the changing constitutional dynamics between political, economic and societal actors.
How can we characterise, from a constitutional perspective, what happened in Colombia during those years? What can we learn conceptually and theoretically about the relationship between constitutionalism, authoritarianism and democracy, from the Colombian experience? Recent scholarship has moved beyond the narrow identification of constitutionalism with liberalism and increasingly recurs to the use of typologies (e.g. authoritarian constitutionalism,Footnote 3 autocratic legalism,Footnote 4 abusive constitutionalism,Footnote 5 constitutional hardball,Footnote 6 window-dressing constitutionalism,Footnote 7 military-state constitutionalism,Footnote 8 or the normalisation of emergency powers)Footnote 9 to grasp the increasing tendency of authoritarian countries to dress their actions with seemingly democratic clothes, and to analyse the role of law and constitutions under authoritarian regimes. We build upon this literature to analyse in detail the internal political dynamics and constitutional status of Colombia from 1930 to 1974.
Specifically, our methodology for analysing constitutional political dynamics proceeds in two steps. The first step is a periodisation of the years between 1930 and 1974 based on distinct regime types: democratic and authoritarian. Concepts and measures of democracy range from a minimalistFootnote 10 to a more substantive approachFootnote 11. A minimalist conception defines democracy as a regime ‘in which rulers are selected by competitive elections, and in which ruling parties lose elections’, and it allows for the objective and observable criteria to produce a binary classification of regime types.Footnote 12 According to this widely used standard, from 1930 until 1949 Colombia is unambiguously classified as a democracy dominated by the Liberal Party. Then, at the end of 1949, the declaration of the state of siege and the closure of Congress marks the end of democracy and the beginning of an authoritarian regime that lasted until 1958. The authoritarian years can be further divided into two periods, a civilian-led (1949–54) and a military-led (1954–8) autocratic regime. Finally, in 1958 the pact that formed the National Front ordained the transition back to a democratic regime that lasted until 1974 (and is still alive today).Footnote 13 The periodisation is displayed in Table 1.
Four Stages in Colombia’s Constitutional Limbo, 1930–74
Source: authors’ elaboration.
In a second step, we categorise each period based on the relative presence (or absence) of institutional limits to the use of power that characterises the constitutionalist tradition.Footnote 14 To focus our analysis, in each period we specifically analyse constitutional rules regarding access to political power (such as the competitiveness of elections, term limits and the possibility of re-election), and also constitutional rules regarding the exercise of political power (in particular states of emergency and the extraordinary concentrations of legislative and judicial functions in the executive power).Footnote 15 Based on the discussion of these constitutional rules, and on their connection to regime type and institutional limits on power, we justify our categorisation of the specific type of constitutionalism that characterises each period. Table 1, therefore, is also a roadmap for the reminder of the article, that is divided into five parts. Each of the following four parts is devoted to one specific period, in chronological order, and each period is characterised according to the type of constitutionalism that prevailed during those years.
The Liberal Party that governed during the democratic period, from 1930 until 1949, used some constitutionally questionable practices that we identify with abusive constitutionalism.Footnote 16 At the end of 1949, after the declaration of the state of siege and the closure of Congress that marked a transition to an authoritarian regime, the Conservatives ruled with very weak institutional checks on power until 1954, a period we categorise as window-dressing constitutionalism. Interestingly, still under an authoritarian regime but this time lead by the military, from 1954 to 1958, institutional limits on power became more effective, providing an example of authoritarian constitutionalism. Finally, an agreement between the traditional Liberal and Conservative Parties in 1958, backed by the military and with the blessing of the Catholic Church, marked the transition back to civilian rule and to a democracy, albeit one with relatively weak institutional checks on the use of power and thus consistent with abusive constitutionalism (see Table 1).
In a nutshell, we argue that the years under analysis in Colombia (1930–74) are an instance in which there is one constitution but three types of constitutionalism. This conclusion is based on a constitutional theory perspective that sheds new light on a period much analysed through other more political, sociological, economic and anthropological lenses. As we elaborate in the conclusion, our analysis of the Colombian case contributes to further clarify conceptually the seemingly contradictory mix between constitutionalism and authoritarianism. Finally, our analysis also sheds light on debate regarding the extra-legal factors and actors that contribute to the efficacy of the constitution under authoritarianism, which in the case of Colombia are the armed forces, the party elites and the Catholic Church.
The Liberal Party in Power and the Return of the Conservatives, 1930–49
Until 1930 the Conservative Party was the master of the Colombian government. They won the civil war in the nineteenth century and wrote the 1886 Constitution that faithfully incorporated the Conservatives’ ideas for the country, which partly explains the stability of the constitution for more than three decades. Suddenly, and unexpectedly, the Conservatives lost the presidential election in 1930 to the Liberals. The first presidential term of Enrique Olaya Herrera, as a leader of the Liberal Party, was marked by permanent tension with the Conservatives because whereas the latter agreed to formally hand over power, they never really accepted the defeat. The Conservatives managed to block most of the Liberal reforms from their stronghold in Congress,Footnote 17 and when Olaya’s presidency finished the 1886 Constitution remained mostly intact.
The most relevant constitutional reform during President Olaya’s Liberal government was the disenfranchisement of the active members of the Armed Forces in 1931Footnote 18. Even though this reform meant a significant loss of electoral support, the Conservative Party accepted it, though not without considering it as a first step in a Liberal Party plan to tilt the political playing field in their own favour in order to consolidate and perpetuate their hold on power. After this reform, in fact, the Liberals did start constitutional manoeuvrings to the extent that in the general elections of 1934 the Conservative Party decided to neither run for the presidency nor for Congress, a boycott which posed a serious challenge for the constitutional order and the legitimacy of the electoral results. Notwithstanding the boycott, the newly elected Liberal president for the period 1934–38, Alfonso López Pumarejo, argued that the old 1886 Constitution required an update and launched a vast program of reforms that was equated with a ‘revolution in progress’ (la revolución en marcha).
Congress enacted an electoral reform expanding the franchise to include every man who was at least twenty-one years old, a reform establishing the public provision of mandatory education for all children, and a reform that established the separation between the Catholic Church and the state, freedom of belief, freedom of observance and equal status of all religions.Footnote 19 These amendments amounted to a liberal transformation of the Colombian constitutional tradition. Their aim was not only to erode the Conservative Party’s electoral support but also to improve the capacity of the state. For instance, the religious reform was not only about liberties since it also separated the voter’s registry from the Catholic Church. Until that reform, the only valid document permitting someone to vote was the certificate of baptism, which meant that non-Catholics or non-baptised persons could not vote even if they met the other legal requisites (at that time, a certain level of education and a salary). The Catholic Church reacted strongly to what they considered a deviation from the ‘moral character of the Constitution’.Footnote 20 The Conservative Party, in an attempt to regroup and to oppose the advancement of the Liberal Party’s reforms, sided with the Catholic Church.Footnote 21
Despite the profound constitutional amendments promoted by President López Pumarejo, the 1886 Constitution maintained two key institutional features related to accessing and exercising power: the four-year presidential tenure with non-consecutive re-election, and the president’s prerogative to declare a state of siege in an expedite manner. Both institutional features had been introduced in 1910 in a key constitutional amendment.Footnote 22 On the one hand, the 1910 amendment reduced the original six-year presidential term to four years and introduced the prohibition of consecutive re-election. This allowed the then governing Conservative Party to keep its predominance while incorporating the Liberal Party as a relatively minor stakeholder in the political and constitutional system.Footnote 23
On the other hand, the 1910 amendment made it easier for the President to declare a state of siege by eliminating the original requirement for approval by the council of state (the highest administrative court). The signatures of the president and his cabinet members were now enough to declare a state of siege, under which he would assume the power to legislate, to suspend public liberties and to disregard the laws that could constrain him. One direct consequence of this change was to increase the executive’s influence in the judiciary. In addition to pre-existing powers, such as the appointment of interim Supreme Court justices or his influence over internal procedures through modifications to the judicial code (código judicial), the president would now literally be able to modify unilaterally the laws that judges would then apply in court in case of a state of siege.Footnote 24
The Liberal Party remained in control of the government until 1946. After the presidency of another Liberal, Eduardo Santos (1938–42), Alfonso López Pumarejo was re-elected for the period 1942–46. Eduardo Santos’ government was more cautious and prudent than his predecessor’s, even making a truce with the Catholic Church.Footnote 25 López Pumarejo’s second administration was marked by divisions within the Liberal Party. In fact, the Conservative Party decided to support a moderate candidate who split off from the Liberal Party, Carlos Arango Vélez, to try to weaken the second candidacy of López Pumarejo whom they considered a leftist radical. López Pumarejo also faced a coup attempt in the summer of 1944, which was supported by the Conservative Party.Footnote 26 Even though the coup failed, President López Pumarejo was weakened, and amid mounting criticism from the Conservatives and even from his own party, he resigned the presidency on 7 August 1945.
For the remaining year before the elections of 1946, the presidency was held by the Liberal politician Alberto Lleras Camargo. During that year, Lleras Camargo managed to pass another important constitutional reform that, in his eyes and those of the Liberal Party, would consolidate the Liberals in power for the foreseeable future. This was the reform of the Senate,Footnote 27 which was to be directly elected thenceforth. The reform also enhanced the nominating powers of the president regarding members of the Supreme Court and the state council. Importantly, however, this last Liberal constitutional reform did not further touch the ‘engine room’ of the Colombian constitution:Footnote 28 the president maintained the power to impose a state of siege and to restrict constitutional rights. To the surprise of the Liberals, these enhanced executive powers were not to be enjoyed by Liberal governments: in the elections of 1946, for the first time since 1930, the Conservative candidate (Mariano Ospina Pérez) won. The Liberal Party, however, did retain majority control of the legislative branch and enjoyed a substantial influence in the judiciary. This complicated political scenario proved to be the litmus test for constitutional democracy in Colombia.
From a constitutionalist perspective, we find two contrasting tendencies during the period between 1930 and 1946. On the one hand, there is a remarkable stability of constitutional norms regarding access to power. Specifically, since the key amendment of 1910, both parties respected the four-year presidential term, the non-consecutive re-election rule and the alternation in office after an adverse electoral result. This was the case in 1930, when the Liberal Party won the presidency, and again in the election of 1946 when the Conservative Party won it back. On the other hand, there is also a tendency to push to the limit certain constitutional prerogatives, to the point that democracy was undermined. This is the case with the state of siege, which the executive could unilaterally activate to concentrate legislative and substantial judicial functions. Interestingly, no president used the state of siege to extend his tenure or refused to hand over power after an election. But they did use it to concentrate even more power in the executive branch.Footnote 29
The state of siege allowed Liberals to face the attempted coup d’état against president López Pumarejo in 1944. While the coup was successfully averted, the state of siege remained in place for eight months (from 10 July 1944 to 21 February 1945). During this time, there were severe restrictions to freedom of the press, freedom of movement and freedom of reunion, as well as censorship of private communications.Footnote 30 These restrictions implied a significant encroachment upon the legislative and judicial branches and a considerable expansion of the executive powers. Importantly, these restrictions took place under a formally democratic regime, in which access to power and the transmission of power are determined by votes in generally free elections. It is equally important to underscore that the restrictions on freedoms and the accumulation of power in the executive are also part of the constitutional system, accepted by all parties. How can these two contrasting constitutional tendencies be accounted for?
Authors such as Brian Loveman refer to the abuse of constitutional emergency powers, such as an undue or unbound concentration of power in the executive branch, ostensibly to face a threat to the republic, as a case of authoritarian undermining of democracy through constitutional means.Footnote 31 Kim Lane Scheppele, similarly, defines autocratic legalism as situations in which ‘electoral mandates and constitutional and legal reforms are used to benefit an illiberal agenda’.Footnote 32 David Landau defines abusive constitutionalism as the ‘use of mechanisms of constitutional change in order to make a state significantly less democratic than it was before’.Footnote 33 Abusive constitutionalism, autocratic legalism and abuses of emergency powers take place under democracy, which is undermined by this kind of legal practices. We therefore argue that these concepts capture this period in Colombian history. Liberals played constitutional hardball but did not subvert democracy. During the following period, in contrast, a regime change took place.
The Conservatives Hold on to Power, 1949–54
The Conservative elected president, Mariano Ospina Pérez, was conciliatory and from the beginning of his administration attempted to build bridges with the Liberals and their majority in the legislative branch. The Liberal Party, in turn, was divided between those who wanted to collaborate with Ospina’s government and those who argued in favour of a radical opposition to the Conservatives. The latter group within the Liberal Party was led by Jorge Eliécer Gaitán, a popular figure who managed to eclipse the more conciliatory part of his party and to command a fierce opposition to Ospina’s government not only in Congress but also in the streets.
The last two years of Mariano Ospina Pérez’s presidency, 1948 and 1949, were especially tough for Colombia. Jorge Eliécer Gaitan, the popular leader of the Liberal Party, was assassinated on 9 April 1948, unleashing a wave of violence in both urban and rural areas across the country. The Conservative government of Ospina Pérez was barely able to contain the spread of political violence.Footnote 34 However, since Gaitan’s assassination, president Ospina Pérez intensified his attempts to form a coalition government with the Liberals. His goal was to finish his presidential term and call for a presidential election to be held during the first half of 1950. At the beginning, the coalition seemed to be working as several Liberal politicians joined Ospina Pérez’s cabinet and the government began searching for common ground to launch policies. However, despite the agreement, the coalition would not last. During the first half of 1949, the Liberals abandoned the coalition and began to fiercely oppose President Ospina Pérez. Both the Senate and the House had Liberal majorities, and after the coalition broke, a group of Liberal representatives initiated an impeachment procedure before the comisión de acusaciones (Committee of Accusations) in the House. The procedure led to an accusation filed in the House, a judgement to be passed by the Senate and the approval of the chief justice of the Supreme Court.Footnote 35
President Ospina tried several times to negotiate with the Liberals to stop the impeachment. Nevertheless, the Liberals moved forward. The president, faced with the impending approval of the impeachment, decided to issue a decree declaring a state of siege on 9 November 1949. The decree contained extreme measures. The president ordered the closure of Congress until the presidential elections took place a few months later in March of 1950 (Decreto 3520 de 1949)Footnote 36. Shutting down Congress allowed Ospina Pérez to avoid any sort of political judgment for declaring the state of siege and for the legislative measures he took during the state of siege.
Interestingly, and relevant for our purposes, President Ospina also managed to bypass judgment from the Supreme Court. In Colombia, since 1910, the Supreme Court had had the power to review the constitutionality of statutes (abstract review of constitutionality).Footnote 37 Furthermore, in 1915, Congress gave the Supreme Court the power of decision over the constitutionality of decrees that declared a state of siege and of any legislative decrees issued during the state of siege. The legal rule applicable to the voting proceedings of the Supreme Court was stated in article 50 of the código judicial (judicial code): a statute or a decree (decreto-ley)Footnote 38 could be declared unconstitutional by a simple majority of the Supreme Court en banc. That said, to avoid the court’s review of the state of siege, President Ospina issued another decreto-ley (Decreto 3519 of 1949)Footnote 39 that, first, suspended article 50 of the judicial code and, second, established new rules for the court to be able to strike down statues. In essence, the new decree required a three-quarters majority in the court to declare a decreto-ley unconstitutional. Being able to get such a majority was extremely rare, which is why most of the measures taken under the state of siege escaped judicial control.
In this event, it is important to highlight the degree of sophistication of Colombian politicians and the use of legal justifications for the arbitrary use of power. President Ospina never said that he changed the courts’ majority regulations to avoid judicial control over his stage of siege. The decree stated that they changed the majorities so that the court could better discuss the cases where the national order was at stake. It said:
with the purpose of finding a better way for the Supreme Court of Justice to reach its decisions, regarding matters that are so directly linked to the preservation of the legal order and of national security, it is necessary to establish certain requirements to ensure the objective sought is met. Article 1. The decisions of the Chamber Plenary of the Supreme Court of Justice, given as part of the constitutional power granted by Article 212 of the Constitution, regarding the unconstitutionality, in part or in full, of the decrees issued by the government by virtue of the constitutional mandate given in Article 121, when they have been challenged before the Court on constitutional grounds, are decisions that, in both their orders and considerations, must be taken by three-quarters of the votes of the Magistrates that make up said Chamber.Footnote 40
Notwithstanding the degree of legal sophistication, Colombian democracy effectively died with Ospina’s closure of Congress and the de facto annulment of the Supreme Court’s capacity to check the president. Ospina’s actions effectively concentrated all functions of government in the executive branch. Congress was unable to exercise political power since it was closed under the state of siege. The Supreme Court was blocked due to the super-majorities established by Decreto 3519 that were now required to declare a decree unconstitutional. Even if, in theory, there was still the possibility of judicial review, it became impossible in practice since the composition of the court (with some judges appointed by the Liberal and others by the Conservative Party) prevented legal agreement of the super-majorities needed to strike down a state of siege statute. The closing of Congress and all local representative institutions, and the new majorities required for the court, gave the president complete freedom to act without institutional checks and balances. Colombia’s democratic regime ended in 1949.
However, despite the concentration of power in the executive, Ospina called for elections to be held on 7 August 1950, still under the state of siege. The president decided to leave office, since he knew that challenging the presidential succession rule would exacerbate political violence. Liberals abstained from participating in the elections, arguing a lack of the minimum guarantees necessary.Footnote 41 Laureano Gómez, a Conservative leader, won the atypical presidential elections of 1950 and was elected to rule for four years until 1954. Congress was also composed of a Conservative majority. Because of their victory, the Conservatives thought that the conditions for deep constitutional reform had been met, that they were free essentially to undo what they considered illegitimate Liberal changes. The Conservatives proceeded without institutional limits. The new government tried to further strengthen the power of the president by limiting political rights, the right to vote and to stand for election, and imposing limitations on the capacity of the popular vote to elect Congress.
The presidential change did not imply the end of the state of siege. The new president started a crusade to expand the executive’s power. According to Laureano Gómez’s diagnosis, if both the legislative and the judicial powers were captured by party politics, the only power that was not subjected to the tyranny of the simple majority and could think clearly on the destiny of the country was the executive. This was the case because the presidential term had a degree of stability which allowed the president to stay in office without the agreement of the other branches. Furthermore, the system of checks and balances made it almost impossible to remove a president from office, the presidency thus escaped the paralysis that was affecting the other branches, and the executive had kept the administrative apparatus of the state running even under conditions of unstable public order. According to Laureano Gómez, the executive branch managed to maintain a certain kind of order after the tragic events of 9 April 1948 because the executive was the commander-in-chief of the armed forces. In the view of the newly elected president, the government was the guardian of the country and should decide the path forward, keeping the economy afloat.
The debacle of the Liberal Party allowed Laureano Eleuterio Gómez, a Conservative ‘caudillo’,Footnote 42 to seize the opportunity to reinstate Conservative rule, which he believed was the only way of diminishing the threats of communism and socialism. In other words, this was a chance for the Conservative Party to impose its values and its vision of the public order once and for all. The best way to reach this goal was through a new constitution that would strengthen presidential power, while at the same time weakening the other branches. For the Conservatives, stripping the Senate of its electoral duties and electing judges through a quota system would allow the president to steer the country in the right ideological direction. All in all, a stronger executive branch would impose the order that other branches were unable to establish. Commenting on this issue, the president stated:
Until now, we have witnessed how public institutions have renounced their duties and functions. The common good no longer seems to be the goal of all the branches of government, but now only that of the executive. The executive is now tasked with the full responsibility for the functioning of the state, while others adopt not only a sceptical attitude towards the severe issues of the nation, but an unconscious position of obstruction.
Maintaining a strong executive branch, within the framework of the 1886 Constitution, is today an undisputed necessity. However, the administrative action must find allies in all the other branches of government with that same desire to ensure the public good.Footnote 43
It is worth noting that this strengthening of the executive branch and presidential power did not include extending the presidential term, a change in the way elections were carried out or a modification of the re-election ban. The president had to be the beacon that guided all the other branches, which meant that the institution of the presidency was what needed strength but not the president himself. The rule that determined presidential succession remained untouched, arguably because Gómez was already planning to replace the old 1886 Constitution with a new one. However, these changes to the institution of the presidency were made without constraints imposed by formal political actors (the Liberal opposition was not operative and had no political presence) or by de facto political powers that supported the Conservatives, such as the military or the Catholic Church.
To make his vision a reality, president Laureano Gómez created the Comisión de Estudios Constitucionales (Commission for Constitutional Studies, CEC) with the task of delivering a proposal for constitutional reform, which the commission handed to the minister of Government Luis Ignacio Andrade on 17 February 1953. Additionally, in 1952, around the same time the CEC was finishing its report, the government proposed a constitutional reform which called for an Asamblea Nacional Constituyente (National Constituent Assembly, ANAC). The assembly’s main goal was to reform the constitution. The assembly did not have the power to revoke the mandate of the president but was able to modify the terms of congressmen.
The members of the constituent assembly, the people who would be part of the ANAC, were not to be chosen by popular vote. According to the law, the only ones who could be members of the assembly were former presidents, direct presidential appointees, persons selected by Congress, representatives from the higher courts and ten representatives of economic guilds.Footnote 44 Selecting these people was not easy. Liberals kept opposing any choices or changes that the Conservatives proposed. Besides their struggles with Liberals and with other parties, such as the Communist Party, the Conservatives were internally divided. This division prevented them from presenting a single set of candidates for the ANAC. Despite all these difficulties, during the first months of 1953, the economic guilds started their selection process. The assembly was meant to start sessions on 15 June of that year, so it was imperative that the members be selected. As the selection process went forward, the government seized the opportunity to spread the word on the goals of the constitutional reform.
On 8 May 1953 the minister of Government sent out a letter to all the governors, mayors and commissaries. In this letter, he explained the objectives of the 1953 constitutional reform. Minister Andrade wanted to clarify that the spirit of the 1886 Constitution would remain untouched. However, despite the many successes of the 1886 charter, it was time to make some adjustments. It was a message along the same lines as the proposals of President Gómez. The letter began with an analysis of all the issues of the current constitution. According to the text, it was necessary to ‘clean out’ the constitutional reforms that had subverted the original (Conservative) spirit of the 1886 Constitution. The Colombian state was now making a lot of laws which had no real practical effect. These laws had paralysed the government while allowing for foreign political activities. Minister Andrade stated:
The reform will not substitute the fundamental principles of the 1886 Constitution. On the contrary it develops those principles by updating them. It foregoes all the constitutional reforms that have stopped the positive advancement and that have served as backup for chaotic laws which have been, quite frankly, appalling.
The current Constitution, alongside with the reforms the government is proposing, constitute a coordinated set of rules, which operate under ideological unity, allowing the nation to protect itself from the mischiefs of international communism. [It] also allows the nation to make authority respected and respectful again, guaranteeing the essential rights of human beings, keeping order and peace, achieving public and private prosperity, getting public institutions to work in harmony towards the common good, and above all, allowing public institutions to part ways with the pernicious influence of Rousseauian and Marxist ideas, and get inspired by Evangelical and Bolivarian influences in order to achieve a Christian democracy.Footnote 45
However, while the government made progress on the preparations for the assembly, the country’s political situation worsened. On 13 June 1953, President Gómez, after being away from his post for a while, decided to return to office and demanded the resignation of the army commander-in-chief, Lieutenant General Gustavo Rojas Pinilla. The President did not trust General Rojas, seeing him as a loose cannon who had no respect for presidential authority. Gómez also believed Rojas was too close to Mariano Ospina Pérez,Footnote 46 with whom he had had a deep political struggle that made him doubt anyone who was akin to Ospina.Footnote 47 Laureano Gómez asserted his power. However, firing an army general proved to be a risky choice for the president. At that moment, institutions began to bite back, and the course of Colombian politics changed.
Gómez’s government thus was operating under what can be labelled ‘window-dressing constitutionalism’, an authoritarian regime that uses the discourse of constitutionalism and constitutional mechanisms to hold on to power while ensuring it faces very little institutional constraint.Footnote 48 President Ospina’s abuse of the state of siege, closing Congress and de facto nullifying the Supreme Court marked a transition away from democracy and into an authoritarian regime. But authoritarian regimes vary in the degree to which they face institutional constraints. Some existing scholarship contemplates the combination of constitutionalism, a centuries-old lineage of theories and practices seeking precisely to place limits on how it should be used,Footnote 49 with an authoritarian regime.Footnote 50 However, during both the presidency of Ospina and more clearly under that of Gómez, the institutional checks on the exercise of power in Colombia progressively lost efficacy to the degree that they became essentially meaningless.
Whereas President Ospina did leave power and call for elections, it was President Gómez who attempted a complete makeover of the Colombian constitutional framework. President Ospina was more cautious because he had attained the presidency thanks to the Conservative Party elite who supported a change in government in accordance with the four-year limit. Ospina also tried to build some bridges with the Liberals. Moreover, President Ospina declared a state of siege ostensibly to save the constitution, which made it difficult for him to then call for a constitutional replacement. These constraints, however, were weaker under Laureano Gómez’s administration.
Laureano Gómez did not agree with the relative caution and pragmatism of his predecessor. President Gómez governed with and for the Conservatives. This is why he initiated the process to replace the Constitution of 1886, to get rid of the liberal amendments that introduced freedom of religion, universal male suffrage and the social function of property, that had in his view vitiated the fundamental law. In his call for a National Constituent Assembly, Gómez wanted to reduce the power of the popularly elected organs of government, recover the status of the Catholic Church and the role of Catholicism as the official religion and to reduce individual liberties. However, there were members of the Conservative Party who did not share President Gómez’s views. In fact, a faction of Conservatives who were closer to former President Ospina obtained a majority of seats in the constituent assembly and rejected President Gómez’s most radical proposals. This stalemate prepared the way for a coup d’état led by General Gustavo Rojas Pinilla.
When General Rojas Pinilla initiated his government, the 1886 Colombian Constitution was as if in a coma. Congress was shut down. The judiciary had been rendered politically ineffective, because of the reform of the voting rules and due to the president’s unilateral appointment of Conservative judges in the absence of Congress. The National Constituent Assembly was in session but internally divided and paralysed. But, as we explain in the next section, the constitution did revive.
The Constitutional Coup d’État and the Military Government, 1954–8
President Gómez attempted to oust General Rojas, the minister of Defence, but the order was never enforced. The general, who knew of Gómez’s intentions, arrested Gómez and several of his aides and started a series of talks with the Conservative Party to see if they could find a civilian willing to replace Gómez and become president. When all the party members declined, General Rojas decided to assume the presidency himself. This decision needed a legal status given that President Gómez did not voluntarily step down and was removed from office. To give the action a ‘legal blessing’, Rojas had to use all the legal and constitutional tools at his disposal. The ANAC, the constituent assembly that was still operative, was the perfect vehicle to legalise a de facto situation.
The ANAC met on 15 June 1953 and, after a quorum check, elected a president and secretary. Former president Mariano Ospina Pérez was chosen to preside over the assembly. On 18 June, the ANAC approved a constitutional reform which stated: (i) that the ANAC had taken over the duties of Congress; (ii) that in light of those duties, the assembly declared that the presidency was vacant; (iii) that the title of president held by General Rojas was legitimate and that he would finish Gómez’s term; (iv) that if the national government considered that elections could not be called on the scheduled date, then it could set a new date or had to call upon the ANAC within the year following the end of the presidential term – which was the case, such that the assembly appointed Rojas, who would remain in office until his successor was elected; and finally (v) that the president of the ANAC would sanction this declaration, which gave it legal validity.Footnote 51
This act gave the coup a legal protection which was supported by most of the Conservative Party. This reaction shocked the now former President Gómez, who did not expect his party to support the plot that ended his presidency. Gómez would never forgive this disgrace, which, as we will show, deeply impacted the turn of events. In one of his first messages from exile, Gómez said:
For those men a terrible and cruel process has started. They called themselves Conservatives but support de facto acts against legality. They called themselves just men and are now slaves of justice. They boasted about their integrity and now have resigned themselves to serve as a mask for greed and debauchery.
The president, having fulfilled his duties to the country, has purified the community of an infamous stain because he waves the banner of the purest doctrine.Footnote 52
Others thought that Laureano Gómez lacked the strength to defend his post and that his departure from power was a way of agreeing with what had happened. As such, the coup was justified and necessary since it meant the end of mismanagement and of the persecution of Liberals and Conservatives that did not support the president. Gilberto Alzate Avendaño, one of Gómez’s critics, presented the situation as follows:
He deserted his post, leaving the seat of power unoccupied and abandoned the stewardship of the legal order. He did not even take a moral standing against the de facto coup, no sober or desperate act that might redeem him in the eyes of history. He did none of that, in fleeing his rightful duties … when the military reached the palace the seat of power was empty …Footnote 53
The coup had gained political and legal validation and General Rojas Pinilla started to govern. The ANAC was suspended and never discussed the constitutional issues that it was created to address. This allowed General Rojas to act as de facto legislator since Congress was closed again. The president also had the power to appoint Supreme Court justices on an interim basis. This meant that the new president had control over the legislative and the judicial branches. Institutions still served the interests of those in power and did not constrain them. But this was about to change.
Before the end of what would have been Gómez’s term, the ANAC reconvened. This meeting resulted in several constitutional reforms. One of them was Acto Legislativo (Legislative Act) 1 of 1954, which ordered for presidential elections to be called on 3 August to elect a president for the term that started on 7 August 1954. However, three days before the election, the ANAC itself decided to extend the government of General Rojas Pinilla for four more years, from 1954 to 1958. El Tiempo, in its August 4 issue, gave an account of General Rojas’s election. He gained a majority but was not unanimously elected: 68 members of the ANAC voted for Rojas, 21 (Liberal) members did not attend the session and eight voted for the return of Laureano Gómez.Footnote 54 The ANAC remained active and issued Acto Legislativo 2 of 1954 which modified the regional and legal regime; Acto Legislativo 3 which gave women over 21 the right to vote and be elected for public office; and Acto Legislativo 6 which prohibited any kind of communist activity across the country.Footnote 55 This was the last constitutional reform that the ANAC approved before being dissolved. Its members would not assemble again until 1956.
General President Rojas Pinilla had the support of the Conservatives close to Ospina and to Gilberto Alzate Avendaño, a politician from Caldas. However, Rojas’s support declined with time and with some of his decisions. He tried to start his own political party, and as a result the politicians who had supported his presidential bid started to call for his resignation. Moreover, even though General Rojas was meant to finish Gómez’s term and then be elected for a subsequent four-year term, when he sought to stay in power for an even longer period, this attempt brought his presidency into crisis. Indefinite re-election was not part of the arrangement, and Rojas was forced to respect that part of the constitution. Interestingly, the actual political power behind the enforcement of this constitutional clause was the armed forces themselves.Footnote 56
The armed forces not only ousted General Rojas Pinilla but also, under the framework of the ‘Old 1886 Constitution’, convened the civilian politicians from the Conservative and Liberal Parties to devolve power and transit back to democratic rule. When General Rojas attempted to undermine the presidential succession rule, and was obliged to abandon the presidency, the military junta that took power could only rule for the remainder of Rojas’s term. The junta could have retained power with support from the armed forces. Instead, they listened to the elites of the two traditional parties who emphasised that the armed forces were in power only to pave the way for a constitutional government and not to remain in power indefinitely.
The causes of General Rojas’s defeat were at least two: he alienated the Liberal and Conservative Parties and lost the support of two real factors of power, the armed forces and the Catholic Church. The role of the armed forces was key, as they were one of the main supporters of the Conservative Party when it regained control of the government in 1946. The support of the armed forces was also crucial when President Mariano Ospina imposed a civilian dictatorship in 1949, and when President Laureano Gómez decided to fight the Liberal opposition that had organised in guerrilla groups on the east side of the country. The armed forces had also, of course, supported the coup d’état lead by General Rojas Pinilla and regrouped around him and behind other Conservative politicians such as Mariano Ospina. However, it is worth noting that only this last mediation, in supporting General Rojas, was a direct intervention in politics, whereas the previous instances had been clear but indirect, with power wielded through party politicians.
Governing takes a toll. As President General Rojas Pinilla distanced himself from the traditional political parties, trying to forge a third political force to support his ambitions, his hold on power started to crack. Politicians on both the Liberal and Conservative sides escalated their criticism of the government and towards the armed forces. At that point, the elite of the armed forces began to distance themselves from Rojas Pinilla, leaving him increasingly alone. The armed forces liked to intervene in politics indirectly, tilting the balance one way or the other according to what they perceived to be in their interest and that of the country, but were not ready to directly support a military government, alienating the traditional political parties. At that point, the armed forces turned to the ‘old Constitution’ as a focal point, seeking to rechannel politics within a legal framework. In a sense, one of the liberalist amendments from the period 1930–46, the one aimed at depoliticising the armed forces, had been effective. When President General Rojas tried to use the army for his own purposes to gain a new term in office, the military thought this was an unacceptably partisan use of the armed forces, whose main goals were public order and the defence of the constitutional order. The military junta made efforts to recover these objectives and, putting all their trust in the two representative members of the two original political parties, went back to barracks and ended their political adventure.
Rojas Pinilla also lost the support of another actor with undeniable political power: the Catholic Church, which emerged as another substantial force behind the constitution, supporting the deposition of General Rojas and the return to civilian government. In Colombia the bishops still had real power, especially the archbishop of Bogotá, who was cardinal. Ordinary people thought that Cardinal Crisanto Luque Sánchez’s words were pronounced on behalf of the Catholic Church and the Pope. President Rojas was an ardent Catholic, so when he lost the cardinal’s support,Footnote 57 he lost power ipso facto. One of the main reasons why the Catholic Church stopped supporting Rojas Pinilla and backed a return to the constitutional laws for electing presidents was the concordat that Colombia had signed with the Catholic Church under the Liberal government of Eduardo Santos. Despite the Liberal amendments of 1936, this concordat allowed the Catholic Church to maintain great influence and privileges protected by the state. The Liberals would not renege on the concordat they themselves had signed. As the Conservative Party, the main ally of the Catholic Church, openly criticised General Rojas’s government, Catholic leaders realised that they were better off leaving Rojas alone in his attempt to change the rules of the game. If they continued to support the dictatorship, they ran the risk of losing their privileges if Rojas failed in the end.
Under General Rojas Pinilla, Colombia transitioned from a civilian to a military dictatorship. The arrival of General Rojas Pinilla seemed to herald the death of the 1886 Constitution. But that did not happen; in fact just the opposite occurred: the constitution woke up from its coma. The first decision of the National Constituent Assembly (ANAC) was to respect the four-year presidential term, so that General Rojas Pinilla would complete the period of former President Laureano Gómez. The ANAC then extended General Rojas Pinilla’s presidency, but again only for four more years, in congruence with the constitution. The state of siege continued, it was not suspended, and legislative elections were not called. Thus, Rojas Pinilla was able to appoint interim Supreme Court justices. With this power, the government could have undermined the 1886 Constitution, but did not. Why?
The constitution was still the common ground framework for party, military and ecclesiastical elites to channel politics. It was what in political science is known as a focal point that facilitates coordination.Footnote 58 President General Rojas crossed a red line when he tried to create his own political movement, independent of the Liberal and Conservative Parties, and when he sought to extend his presidential term beyond the four years granted by the ANAC. These actions triggered a reaction against Rojas Pinilla from quite diverse political actors, that coordinated their actions based on the most fundamental political accords cemented in the 1886 Constitution. The armed forces realised that the traditional political parties had the capacity, that they themselves lacked, to mobilise people, and that General Rojas was trying to build such capacity, but to his own ends and not necessarily those of the armed forces. Hence, the military junta retired their support of General Rojas Pinilla and started negotiations with the Liberal and Conservative Parties, to protect military autonomy and prerogatives, but also to support the party elites in getting back into power.
In contrast to the civilian dictatorship led by Ospina Pérez and especially by Laureano Gómez, where institutional constraints on power almost disappeared, ironically it was under the military dictatorship lead by General Rojas Pinilla that at least some basic institutional constraints were reactivated. In his analysis of Pinochet’s Chile, Robert Barros understands constitutionalism as the presence of efficacious institutional limits on central government actors (e.g. the executive). As Barros puts it, ‘an institutional limit implies a legal standard, a mechanism of enforcement, a division among the authorities subject to the standard and those who uphold it, with the result that the actors are constrained by prior decisions in the form of rules’.Footnote 59 This is, according to Barros, what characterised the exercise of power during Chile’s military dictatorship, a rare mix of two seemingly incompatible components: a regime type commonly known for its tendency to abuse power, and a centuries-old lineage of theories and practices seeking precisely to place limits on how power can be used.Footnote 60 We argue that this rare mix, authoritarian constitutionalism, is also what characterises the period in Colombian history that started with the military coup in 1954 and ended with the general political pact known as the Frente Nacional that marked the transition back to democracy in 1958.
The National Front, 1958–74
On 10 May 1957 General Rojas Pinilla resigned as President of the Republic. A military junta, appointed by Rojas himself, assumed power with the original idea of stabilising the country and paving the way for the return of General Rojas. However, the military junta negotiated with representatives of the Liberal and Conservative Parties to facilitate the return to civilian government and the re-establishment of the 1886 Constitution (including the amendments made until 1945). Interestingly, in these negotiations the junta and the armed forces served as both the instigators and the guarantors of the bargains that the traditional two parties reached and formalised in the agreements of Benidorm (1956) and Sitges (1957). In these accords, the parties not only agreed to return to civilian and democratic rule but also to accept the sharing of power; to stop trying to eliminate the other political force. The sharing of power was taken to the extreme of agreeing to participate equally in every political institution (e.g. 50–50 seats in Congress) and to alternate the presidency of the republic between the two parties. The agreement was called Frente Nacional and was supposed to be in place until 1970 (it was extended for another four years, until 1974).
The military junta called for a plebiscite on the agreement of the Frente Nacional on 1 December 1957. The support for the agreement was overwhelming, and the country returned to democratic rule, albeit with limitations, which came in two forms. On the one hand, enforced alternation in power meant that the actual electoral competition was limited (open electoral competition would be reinstated at the end of the agreement). Alternation also implied that the political party that held the executive power could use the extended powers awarded to this branch of government, this time not against the other traditional party but instead against an alternative that could dispute these two parties’ hold on power.
This happened in the elections of 1970. The government of President Carlos Lleras Restrepo (1966–70) had to hand the executive power over to the Conservative candidate Misael Pastrana Borrero. When a new party formed by General Rojas Pinilla, the Alianza Nacional Popular (National Popular Alliance, ANAPO) ran for the presidency, Lleras Restrepo declared a state of siege and banned radio bulletins. Before the restriction, the media announced that the winner was General Rojas Pinilla, candidate of the ANAPO. The latest press release delivered by Minister of Government Carlos Noriega was at 8:00 p.m. and declared the ANAPO candidate as the new president. However, the next morning the result had changed, and it was announced that the elected president was the Conservative Misael Pastrana Borrero. This raised serious doubts about the transparency of the electoral process, which prompted several political actors to consider that democracy in Colombia was restricted and only benefited the Liberal and Conservative Parties.
The declaration of a state of siege became the institutionally preferred option used by Colombian governments to deal with all sorts of political decisions they had to make. In fact, of the forty-two years between 1949 and 1991, Colombia spent thirty-five (83 percent of that time) under a ‘state of exception’.Footnote 61 Throughout those years, the Supreme Court exerted only summary procedural checks, both on the declarations of the state of siege (making sure, for instance, that the signatures of all members of the cabinet were included) and on the executive decrees issued under those states of siege (without verifying if, for instance, the content of the decree was related to the issue that prompted the declaration of the state of siege).Footnote 62
The Frente Nacional was solid at the level of party and economic elites but left wide portions of Colombian society underrepresented.Footnote 63 The forgotten grassroots level was prey to the dynamic of an increasingly complex spiral of violence that had been developing for decades. The state of ‘restricted democracy’ in Colombia served as incubator for an internal security crisis that to this day has not been resolved. In exchange for their services, and their loyalty to the successive civilian governments since 1958, the armed forces received ample discretion in their dealing with the internal security crises. This mostly meant increased military autonomy, not only in terms of the planning and execution of missions, but also regarding the administration of the armed forces and military justice. The limited democracy also implied only mild checks, judicial and otherwise, on this increased military autonomy as well as on the military’s use of lethal force.Footnote 64 During this period, both the restricted access to political power, and the wide margins for exercising it, had a constitutional basis. In other words, decisions to extend the state of siege, to increase military autonomy and military participation in public security and to limit electoral competition were all properly sanctioned in legal and constitutional terms. But they also imply an appreciably low level of institutional constraints on power; higher than under authoritarianism, but still low. We thus argue that this period, like the period of Liberal government from 1930 to 1946, was one of abusive constitutionalism.
Conclusion
The complex period in Colombian history that runs from 1930 to 1974 has been deeply analysed from perspectives that highlight the causes and effects of the breakdown of democracy, including the rupture of elite pacts that led to civil war,Footnote 65 the establishment of the National Front and the failure of the relative pacification,Footnote 66 electoral and party politics and the configuration of the party system.Footnote 67 We contribute an analysis of the period from the perspective of constitutional politics and constitutional theory, focusing on the links between political regime and constitutionalism, and exploring the dynamics behind the extraordinary resilience and endurance of the Constitution of 1886 despite the transit from democracy to civilian dictatorship to military dictatorship and back to democracy.Footnote 68 Our analysis uncovers how, during that period in Colombia, one constitution coexisted with three different types of constitutionalism.
The analysis of the Colombian case shows the value of the distinction between democracy and authoritarianism, and the degree to which institutional constraints are effective under an authoritarian regime. Specifically, when looking at the combination of ‘authoritarian constitutionalism’, an authoritarian regime that exhibits institutional limits on the abuse of power, the distinction prompts the identification of the source(s) or actor(s) (or constellation thereof) behind the enforcement of constitutional clauses under a regime that is averse to accepting limitations on the use of power. We underscore the role of actors with de facto power in the enforcement of constitutional clauses at critical points in time (of course this power could also be exerted in the opposite direction, that is, against the enforcement of institutional limits on power).Footnote 69
In Colombia, during the military dictatorship of General Rojas Pinilla, two powerful actors, the Catholic Church and the armed forces, based on their evaluation of their own corporatist interest decided to turn their backs on him and to revert to the constitutional clauses and framework of the Constitution of 1886 in order to pave the way for a return to civilian government and to a (limited) democracy. General Rojas Pinilla attempted to create a political group that would be dependent on him, sidelining the traditional parties and rewriting the rules of the game, but this move backfired, and he became increasingly isolated and was eventually abandoned by the armed forces themselves. The armed forces, wanting hefty influence over the government and the direction of the country but without the direct responsibility of governing, managed to neutralise Rojas Pinilla and at the same time work with the Liberal and Conservative political parties to bring about the return of civilian rule under the framework of the 1886 Constitution. The Catholic Church, also considering that its corporatist privileges would be better protected under a return to civilian rule, supported the agreement between the Liberals and Conservatives that was guaranteed by the armed forces and that took form as the National Front.
We believe that the analysis presented in this article can also be useful to analyse the relationship between constitutionalism and political regimes in transitions to and from democracy. How are democratically elected leaders using legal and constitutional mechanisms to undermine democracy? Is law under an authoritarian regime, constitutional and otherwise, mere window dressing? Take, for instance, recent events in Venezuela that bear a striking resemblance to the Colombian experience. Specifically, when opposition parties won a majority in the parliamentary elections of 2015, current President Nicolás Maduro called for a constituent assembly that marginalised and absorbed the sitting Congress. The similarity with the Colombian constituent assembly (ANAC) under the government of General Rojas Pinilla is striking. However, in contrast to what happened in Colombia, the Venezuelan constituent assembly was dissolved after the official party and its allies won a legislative majority in the elections of 2020. In Colombia, the military, the party elites and the Catholic Church cooperated to revive the Constitution of 1886 that was in a coma-like state under General Rojas Pinilla, and a return to a limited democracy was made possible. In Venezuela, the Constitution of 1999 did not generate a similar coordination.
Acknowledgements
We are grateful for the thoughtful and insightful feedback of Lorena Garzón, María Isabel Cristina González, Andrea Pozas-Loyo, Juan Manuel Sánchez Osorio and the anonymous JLAS reviewers.
