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Democracy calls for discussing legislative measures over prior consultations

According to the UN Special Rapporteur on the rights of indigenous peoples in Colombia, consultations and consent are essential to progress toward building a stable and long-lasting peace, strengthening our democracy and obtaining answers for serious social needs.

Special Rapporteur Victoria Tauli-Corpuz who visited the Universidad Nacional de Colombia says that with her territorial experiences and self-government, ethnic people contribute to reducing conflicts, protecting the environment and defining social services and economic progress, amongst other local and global issues.

Therefore it is concerning that both, the right to prior consultation and consent are applied separately and not as effective participation mechanisms. Furthermore, there are concerns that some sectors consider consultation as a barrier for development and the general interest and not as a guarantee of participative democracy. 

Attacks to the alleged “garanteeism”

Currently, there is a bill in Congress which hopes to regulate prior consultations, despite that, the initiative was not consulted, the indigenous people requested its withdrawal and the UN added the importance of guaranteeing the participation of ethnic peoples in formulating and approving any measure which purports to regulate a fundamental right.

According to the Cambio Radical political party, author of the bill, consultation and consent have been applied from an “excessively guarantist interpretation of the Constitution” and require regulations to warrant that the golden rule of the “general interest must prevail over particular interest”.

However, these statements need to be assessed taking into account the Political Constitution of Colombia of 1991 recognizing ethnic and cultural diversity. Therefore this is why it is established as a decentralized, territorial autonomous, pluralist and social rule of law state and with direct participation mechanisms to guarantee that the decision of the public life to be democratic and respectful for said diversity. 

Additionally, Convention 169 of the International Labor Organization recognizes indigenous peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages, and religions, within the framework of the States in which they live.

In Colombia, these provisions are more relevant if the UN suggestions are considered: It is important to guarantee effective participation of ethnic peoples in public life, strengthening communitarian self-government in face of the 2030 Agenda for Sustainable Development and avoid restrictive interpretations of the ILO.

But above all, they are most relevant if considered that indigenous peoples are in grave risk of cultural and physical extermination.

The democratic challenges of today

It is necessary to debate over if really the consultation and consent have been applied under an excessively guarantist interpretation. For instance, since 2017, legislative consultations face three challenges which could impact ethnic participation in public life.

First, the government unilaterally decides they should be consulted without applying target or promoting prior dialogue with the people over these affectations.

Second, the methodological routes designed to implement the consultations are altered during their execution: The government reduced the agreed times or ignores the proposed phases; therefore part of the discussions are centered in the routes and not on the consulted contents.

Third, during the processes, the government neglects to provide answers to the requests of the indigenous people and if there are differences, it decides to take these initiatives to Congress without subscribing protocol records which state the agreements and previous free and informed consents.

This was evidenced in the consultation to the reform of Law 160 of 1994, a legislative initiative which is very linked with territorial rights of the ethnic people and their right to self-govern.

Given the questionings to the process, inclusively by the Public Prosecution Office, indigenous organizations filed a judicial action for protection of fundamental rights to stop the legislative action, which was rejected with the argument that it was inappropriate to solve a possible breach or a fundamental right.

These challenges deserve urgent responses as there are currently consultations to the New Development Plan and the ethnic implementation of the Legislative ruling 1 of 2017, which establishes regulations for the end of the armed conflict. Without rightful solutions, the participation of ethnic peoples in the development model and in the implementation of the transitional justice model can deepen its serious threat of cultural and physical extermination.

The prior is even more alarming if considered that the Colombian Constitutional Court of Justice recently backpedaled on a ruling with respect to the scope and nature of another constitutional direct participation mechanism: popular consultations.

In a dissenting opinion, Magistrate Alberto Rojas Ríos stated:  “The decision is regressive and anti-democratic in many ways, as it unjustifiably limits and goes against constitutional communitarian participative mandates in maters impacted by them and establishes banned citizen control mechanisms in management of natural resources and drastically cuts the territorial independence while streghthens the central government.”

Therefore the restrictions which currently are imposed over previous consultations and other participation mechanisms cannot be understood as safeguards of general interest but as obstacles for our democracy.

Consejo Editorial