Decretazo: Petro's consulta by decree
Petro has signed the decree calling the consulta popular on the labour reform, despite widespread consensus that doing so is illegal. It provokes a major institutional crisis in a tense climate.
On June 11, Petro signed the decree calling for the consulta popular on the labour reform by decree, in spite of the Senate’s rejection of the consulta on May 14.
There is broad consensus that doing so is illegal. Calling for the consulta by decree openly defies the separation of powers and will provoke an institutional crisis with the legislative and judicial branches.
This is the latest episode in the labour reform/consulta saga. For the full context, please read my previous posts on this topic here, here and here.
The basics
On May 14, the Senate, by 49 votes to 47, rejected Petro’s proposed 12-question consulta popular on the labour reform. Petro and the government, led by his interior minister Armando Benedetti, have never recognized this result and immediately denounced fraud in the vote. Their arguments for ‘fraud’ have been tenuous and, in part, based on false premises.
On May 27, Benedetti came out with a new fantastical claim: that the Senate had in fact never legally pronounced itself on the consulta, an assertion based on a technicality. The government says that the vote was taken without the proposal (proposición) on the matter being read beforehand, which is against congressional rules (article 125 states that once debate is closed, the proposal being voted on will be read again). Without any proposal being read, the Senate, they argue, never pronounced itself on the matter and therefore no decision was adopted. The secretariat of the Senate (the clerk) has dismissed this interpretation, saying that the presidential request for the Senate’s favourable opinion did not contain any proposal, and that the request was voted on according to the schedule and that the secretary of the Senate had clearly expressed what was to be voted on before the vote was opened. As La Silla Vacía has pointed out, the 2018 consulta popular was adopted in a similar manner by the Senate, without the questions being read, and nobody at the time raised any questions about this and it was never challenged in court. At the time, Benedetti was a senator and voted ‘yes’ to that consulta and didn’t seem to have had any problems with the way in which it was adopted by the Senate.
Further contradicting its own case, the government had tacitly recognized the Senate’s verdict, because, on May 19, it presented a second 16-question consulta popular to the Senate (tellingly, they never talk about that one anymore).
In the government’s view, therefore, if the Senate did not pronounce itself by June 1—the end of the Senate’s 30 day deadline to give its binding opinion on the president’s request—then Petro would call the consulta by decree, within 8 days. This idea is, in turn, based on a rather peculiar, though untested, reading of the law and certain legal ambiguities. The statutory law on citizen participation, Law 1757 of 2015, states (article 33) that “the consulta popular will be held within the three months following the date of the prior opinion of the respective public corporation [Senate] or the expiration of the deadline indicated for it” while Law 134 of 1994 (art. 54) reads that the consulta will be held in the four months “following the date of the pronouncement of the Senate, or the expiration of the deadline indicated for this purpose.” Both laws, however, also clearly state that the president, “with the prior favourable opinion of the Senate,” may call the consulta (art. 31, Law 1757).
The government’s legal justification is that the president has the power to call for a consulta by decree himself after the expiration of the deadline, if the Senate hasn’t acted on it (as they claim). There’s some unsettled legal ambiguity about this point, but given that the Senate pretty obviously did vote against the consulta, few jurists and experts share the government’s interpretation.
The government insists that the supposed irregularities in the Senate’s vote on May 14 effectively invalidate the vote and that the Senate therefore never legally pronounced itself by the deadline. Regardless of whether or not there were irregularities, in a democracy it’s not up to the government to unilaterally judge on that. The courts are the ones with the power to do so. The Council of State, in fact, has already agreed to hear a challenge seeking to annul the Senate’s vote. Each branch of the government acting according to its own interpretation of the law would quickly turn everything into an absurd and arbitrary mess.
Efraín Cepeda, the president of the Senate, said that holding the consulta by decree, ignoring the Senate’s decision on May 14, would be a serious attack on the rule of law and the separation of powers. The opposition denounced the government’s intentions as illegal and dictatorial. The Inspector General, Gregorio Eljach, elected with the government’s support, stated that there’s no discussion that the Senate rejected the consulta.
In his televised address on June 3, Petro said that the vote was “illegitimate” because Cepeda “never put the Senate to discuss the favourable or negative opinion of the consulta popular, he forgot.” In his speech, Petro also claimed (again) that if the vote had been done under the rules of the law, then the consulta would have won. He confirmed that he would call the consulta by decree “because there was never a favourable opinion in the Senate. They cheated.”
Besides Benedetti, the legal ‘minds’ behind Petro’s decree idea are former attorney general (2012-2016) Eduardo Montealegre and Yefferson Dueñas, a lawyer and former assistant magistrate.
Montealegre, whose tenure as attorney general was marred by several controversies, the enmity of uribismo and an ultimately mediocre record, now dedicates himself to giving flimsy legal justifications to Petro’s various whims. Last year, he defended the outlandish thesis that the 2016 peace agreement allowed Petro to convene a constituent assembly, extend his presidential term or seek immediate reelection. In an unnecessarily verbose article, Montealegre wrote that Petro can call the consulta by decree—the decretazo, as he calls it—because the congressional procedure was unconstitutional, applying the ‘exception of unconstitutionality’ (excepción de inconstitucionalidad), a principle that allows judicial and administrative authorities not to comply with a law, order or public policy if it violates or contradicts the constitution.
Yefferson Dueñas had presented a legal challenge against the 2018 consulta, the closest precedent for Petro’s consulta. The matter ended up in the Council of State, which didn’t rule on the merits of the case because the consulta had already taken place (and fallen short of the threshold). Dueñas has also contended that the ‘serious irregularities’ in the Senate’s vote do not allow them to consider that there was a vote in accordance with the constitution. As the media has been keen to report, both Montealegre and Dueñas have received contracts from the government.
To thank him for his good services, Montealegre will be appointed justice minister, as announced on June 5. The justice portfolio had been vacant since May 15, when the previous occupant, Ángela María Buitrago, resigned with fracas alleging external political interference in the ministry by Benedetti and the president’s office.
The government also says that two former presidents of the Constitutional Court, Luis Ernesto Vargas (currently the ambassador to the OAS) and Jorge Iván Palacio, support their argument.
All this is happening while the actual labour reform, revived by the Senate minutes before it rejected the consulta, is now in its last debate in the Senate plenary. The revived text was approved in third debate by the Senate’s fourth commission. Even though the current version largely resembles that passed by the House last fall, the government and the Pacto have been desperately digging for any excuse to oppose it. After the focus on night shift hours, overtime pay and SENA apprentices, their latest grievance was the alleged ‘legalization’ of hourly work (trabajo por horas) with a new article that’d allow for hourly payment of legal bonuses, severance pay and overtime pay. Petro said that, with it, the labour reform became a counter-reform, ‘one of the most backwards ever seen.’ In reality, hourly or part-time work already exists in law, and the article merely provides some additional regulation of part-time work. Again, the government’s intransigence allows us to wonder if they’re really acting in good faith.
On June 6, a judge granted a tutela protecting Pacto senator María José Pizarro’s right to due process and ordered Cepeda to give a reply, within 48 hours, to an appeal presented by Pizarro against the closure of the vote on May 14. Cepeda had already decided that her appeal was inadmissible, but the judge was unaware whether she was notified of this decision, in violation of her right to due process. Completely misinterpreting the judge’s order, Petro said that a judge had ‘protected our right to the consulta popular’ and ‘determined that there had been fraud in the Senate, ordering a repeat of the vote within 48 hours.’ Of course, the judge ordered no such thing. Pacto senator Wilson Arias inaccurately claimed that the judge determined irregularities in the defeat of the consulta. Benedetti said that the decision proved that Cepeda had ‘cheated.’ Unsurprisingly, to all this, Cepeda answered that he had already replied to her appeal (denying it) on May 21.
Amidst reports that some ministers were consulting their lawyers before signing the decree, on June 7 Petro dryly ordered “any minister who doesn’t sign the presidential decree will leave immediately.” The opposition warned that ministers who signed the decree would be sued for prevaricato (breach of legal duty, committed by a public servant issuing an act that is manifestly contrary to the law), punishable by 4 to 12 years imprisonment, a fine and disqualification from public office for up to 12 years.
Will he, won’t he
That same day, CD presidential pre-candidate Miguel Uribe Turbay was shot during a campaign speech in Bogotá, an assassination attempt which has jolted the political world and somewhat shifted plans for the decretazo. The attack shifted the conversation away from the consulta and towards discussions on the costs and consequences of the overly heated, toxic and highly antagonistic political climate in the country. There were widespread calls for politicians on all sides to ‘lower the temperature’ and to come together, starting with Petro.
As a first step, many said that Petro should start by walking back from the looming threat of the decretazo. On Monday night, following a meeting of the electoral monitoring commission (boycotted by opposition parties) at the palace, Roy Barreras, the former ambassador to the UK (and a voice of pragmatism and moderation within petrismo), claimed that Petro had agreed to ‘freeze’ the decretazo until the debate on the labour reform in the plenary of the Senate and the conciliation with the House’s text from last fall. That didn’t last long. Just after midnight on Tuesday, Petro, in another overly longwinded tweet, contradicted Barreras and said that the decree was going ahead. He claimed that he had been willing to freeze the decretazo until the Senate (and the House) decided to suspend its sessions until Wednesday, in solidarity with Miguel Uribe. This suspension angered Petro, who read it to mean that there’d be no time for the labour reform to be adopted (it must be adopted by June 20), and argued that the consulta and the attack against Uribe were two different things.
The Senate resumed session on Wednesday, June 11, with the fourth debate of the labour reform top of the agenda.
The unions, who had organized a first two-day national strike on May 28-29 that was a flop, maintained (despite criticism) their call for another day of mobilization for the consulta and labour reform on June 11. Petro, who had distanced himself from the failure of the first strike, had announced that he’d show up on June 11 in Cali, and the government signaled that he’d officially sign the decretazo then and there. Cali, as one of the epicentres of the 2021 protests (and where Petro won 65% in the 2022 runoff), holds an important place in the petrista mythology. Once more, external events disrupted plans: on June 10, there were over 20 terrorist attacks in Cali, the Valle and Cauca, killing seven people. In the wake of the attack, several city councillors, including the president of the city council, asked Petro not to come to Cali. Petro ignored that request.
The decretazo
Petro signed the decree calling for the consulta popular on the afternoon of June 11. The date set for the consulta is August 7, anniversary of the Battle of Boyacá.
He said that it’d be withdrawn before the vote if the questions put to the people are ‘answered positively’ by Congress. Benedetti said that if the Senate adopts the House’s version of the labour reform then the decree would be repealed. Seeking to strike a conciliatory tone, he’s described the decretazo as opening a door to communication and trust with the Senate. Few would agree with that interpretation.
That night, in another lengthy diatribe before a large crowd gathered in Cali’s Plaza San Francisco, Petro defended the consulta and the labour reform as an “imperative and categorical need of the Colombian society today.”
As he was speaking, the Senate approved, 67 votes to 25, the main ponencia of the labour reform (the text from the fourth commission, adopted in third debate) and began discussion article-by-article. Petro claimed that the Senate doesn’t want to approve a ‘progressive labour reform’ and asked the president of the House, Jaime Raúl Salamanca (a pro-government Green), to ‘not take a single step back from what was approved in the House’.
He insisted in the ‘institutional blockade’ (bloqueo institucional), the initial justification for the consulta, all the way back in March. After swearing for the umpteenth time that he had no interest in reelection for himself, he called on the people to ‘reelect the project of change’ in 2026. He vowed to respect the people’s decision regardless of the outcome, and to respect the court’s decisions.
The very verbose 32-page decree, which is clearly Montealegre’s brainchild (although he didn’t sign it as he wasn’t sworn in as minister yet), justifies the consulta-by-fiat on the basis of the aforementioned ‘exception of unconstitutionality’. In the government’s argument, the president can disapply an administrative act, like the Senate’s decision, that is ‘manifestly unconstitutional’. The ‘exception of unconstitutionality’ is a valid judicial procedure that’s been developed in the Constitutional Court’s jurisprudence, but most legal experts believe that it doesn’t apply in this case, because it isn’t a matter of the incompatibility of two laws applicable to the same case or between a law and the constitution, but rather the government’s allegation of irregularities in a congressional decision.
Indeed, Petro and the administration are very much alone here. For the vast majority of experts, there’s not much discussion to be had: the Senate’s decision makes the consulta popular unviable and the decretazo defies the institutional order.
Beyond the ranks of petrismo, there is effectively no support for the decretazo, even outside the government’s usual opponents on the right. Petro’s former interior minister, Juan Fernando Cristo, had called it a ‘serious mistake’; Antonio Navarro Wolff, one of the co-presidents of the Greens (and generally sympathetic to petrismo) criticized the idea and the Greens put out a mealy mouthed statement distancing themselves from it; former president Ernesto Samper, the only former president who has supported Petro, said that the Senate’s decision needed to be respected.
The day before Petro signed the decree, 24 NGOs co-signed a statement asking Petro not to convene the consulta by decree, calling it a “decision based on an illegal interpretation that erodes the separation of powers.” The signatories included some of the biggest and most respected NGOs in the country, several of which have been dear to the progressive left for their commitment to human rights and peace: Dejusticia, Pares, Cinep, FIP, the Colombian Commission of Jurists and Temblores, among others. In a separate opinion piece, Dejusticia’s Rodrigo Uprimny, who can hardly be considered a right-winger, considered the government’s thesis to be ‘absurd’ and warned that Montealegre’s arguments could set a dangerous precedent, whereby any president could declare a court ruling or law null and void. In Cambio, former justice Yesid Reyes wrote that Petro’s decision is ‘absolutism disguised as democracy’.
The next steps
The decretazo seems to have turned all of the greatest, deep-held fears about Petro, that often sounded a bit histrionic, into reality. Up until now, Petro had stayed within the institutional framework of the constitution, no matter how often he angrily bemoaned adverse decisions by the two other branches of government and despite a lot of bluster (like the constituent assembly last year) and some bargain-bin revolutionary LARPing. But, at the stroke of a pen, a lot of those fears—about his authoritarian temperament, his scant respect for the rule of law and democratic institutions and his castrochavista aspirations—became a reality.
The decretazo is not a coup d’état but it does openly defy the separation of powers and the rule of law, and it provokes an institional crisis, or institutional breakdown (ruptura institucional).
What comes next?
Formally, the first step, after the decree, in organizing a consulta popular, is informing the electoral authorities (the Registraduría) responsible for organizing elections so that they set the calendar for the campaign, appropriate the funds to organize the vote and so forth. This is usually a routine process of little interest to anyone, but in this case the national registrar, Hernán Penagos, a former Partido de la U congressman and CNE magistrate, receives a decree that is assailed by the opposition and much of civil society.
On June 17, Penagos, a cautious man who has avoided media ruckus, announced that given the ‘obvious’ clash between the executive and legislative, he would request a formal legal opinion from the Council of State. He asked that the courts rule in a timely manner. In addition, Penagos warned of the high costs of organizing the consulta, estimated at 750 billion pesos ($181.5 million), and that it was not physically possible to organize the consulta within approximately 50 days. With his decision, the consulta is effectively frozen until the courts come into play. Benedetti said that Penagos made a ‘serious mistake’, calling him a mere logistical operator with no power to use an ‘exception of unconstitutionality’.
Everyone knows that the issue will be resolved, one way or another, by the courts. The government, on the basis of the constitution’s article 241.3, contends that the Constitutional Court is the one responsible for deciding on the constitutionality of the consulta popular, but only after the vote. The government has therefore sent the decree to the Court.
However, most legal challenges against the decree are being presented to the Council of State, the body responsible for reviewing administrative decisions. In 2018, Dueñas’ challenge to the decree for that consulta went to the Council of State (which didn’t rule in time). On June 12, nine opposition and independent parties, including the Liberals, Conservatives, CD, CR and La U, filed a legal challenge against the decree before the Council of State. There have been several other similar challenges filed there too. The parties also requested an injunction to temporarily suspend the effects of the decree until the lawsuit is resolved.
On top of the legal questions about the decree itself, the decretazo also means a clash of jurisdictions between the Court and the Council of State. In 2016, in a challenge against Santos’ peace plebiscite (a direct democracy mechanism similar to a consulta), the Council of State determined that it didn’t have jurisdiction, citing article 241.3, and left the matter in the hands of the Court, which reaffirmed its power to decide on plebiscites and consultas. Right-wing celebrity lawyer (and presidential pre-candidate) Abelardo de la Espriella has asked that the Court not review the decretazo, claiming that the Council of State has jurisdiction over such administrative acts.
El Tiempo reported that the Constitutional Court will debate whether it will exercise a priori review of the decree or if, as the government maintains, this review can only come after the accomplished fact. In 2023, the Court gave itself the power to provisionally suspend the effects of a law under review, and some suggest it would be able to do so in this case. On the other hand, the Council of State reportedly also feels that it has the power to study whether the government could ‘bypass’ the Senate’s authorization as it did.
If the Council of State takes up the matter, it’d likely fall to the fifth chamber (responsible for electoral issues), where the government has suffered several adverse decisions in recent years. The government may be more confident in its chances in the Constitutional Court, but even there, despite what some right-wingers might say, there isn’t a clear majority in the government’s favour—at most, only three votes appear to be ‘reliably’ in the government’s column on all major decisions.
Meanwhile, the actual labour reform is in a race against the clock to be adopted into law by June 20. By the end of Thursday (June 12), the Senate, in fourth debate, had adopted 75% of the articles in the text. The Senate continued debate on June 16 and 17.
Worst fears: The return of the constituyente
As mentioned, the decretazo appears to have confirmed all the greatest fears about Petro’s authoritarian temperament and anti-democratic, populist proclivities. His comments about what he’d do if the courts rule against the decree have just added to those fears.
In Cali, Petro defiantly said that, even if the courts rule against, “the people has already decided and will not back down” and that “all the means that exist in Colombia, including the National Constituent Assembly, will be used.” In an interview with CNN, the president said that if the courts rule against the decree, then 8 million signatures will be collected from the people to present the consulta again—the law allows for a citizen-initiated consulta popular (as the 2018 one), requiring signatures from 5% of registered voters, but if it’s signed by over 20% of registered voters (i.e. around 8.2 million voters today), then the Senate would have no choice but to allow it to go ahead. If, Petro warned, they still ‘mock’ the consulta then there would be no other choice but for the people to ‘massively’ call for a national constituent assembly in an election.
The very polarizing idea of the constituent assembly, or constituyente, is an old track that Petro ran with for a while in early 2024, before it moved out of the headlines and Petro’s mind. Just as I said then, the constituyuente is a nearly impossible delusion just because it’s very difficult to call for one (if he goes through the constitutional path to do so, that is). The constituyente is perfectly legal, and politicians from all sides, including right-wingers, have, at times, proposed it as a means to resolve issues that seem impossible to reform through Congress. With Petro, however, the constituyente has become a bogeyman, for some a symbol of Petro’s authoritarian ambitions (with references to Maduro’s 2017-2020 constituent assembly in Venezuela) or his wish to ram through his agenda bypassing Congress and the courts (and, of course, always denied claims that he wants to perpetuate himself in power like Chávez et al.).
Montealegre, now justice minister, had already in 2024 supported a widely refuted legal thesis that Petro could call a constituent assembly by decree. Now, Montealegre argues that the 1991 constitution no longer provides the tools to resolve the problems of the 21st century, and that, in the face of the alleged systematic ‘institutional blockade’ and ‘multiple situations’ that make it unsustainable to maintain certain ‘key aspects’ of the 1991 constitution, it’s necessary to change it. He doesn’t explain what ‘key aspects’ of the constitution are unsustainable. More worrying, Montealegre seems to believe in a ‘popular initiative constituent assembly’ which… isn’t a thing. He’s said that, by collecting 8 million signatures (20% of voters), they could bypass Congress and send the ‘popular initiative constituent assembly’ straight to the Constitutional Court for approval. In reality, the only way to convene a constituent assembly involves first going through Congress, with a law approved by an absolute majority in both houses.
Petro and Montealegre’s talks of constituyente is also disquieting because it contradicts what the government had been saying just days before. On June 6, Benedetti ‘swore’ that the government would abide and respect the court’s decisions. It’s not the first time the government hasn’t kept its word on this issue: before the Senate’s vote, administration members had signaled that there’d be no extraordinary measures and that Congress would pay the consequences in the 2026 elections.
The decretazo and the government’s defiance of the separation of powers and the institutional order stir up a very tense political climate. After the assassination attempt against Miguel Uribe, many urged politicians, from all sides, to ‘lower the temperature’ and come together to behave responsibly, respect democracy and seek consensus rather than further polarization. The decretazo flies in the face of all that, and will make it even more difficult for all parties to come together in a more conciliatory spirit.