A. Rights

The need to create a more robust catalog of rights, including social rights, was one of the main points of agreement among the drafters. Although Colombia ratified international treaties such as the International Covenant on Social, Economic, and Cultural Rights in 1968, during the presidency of liberal Carlos Lleras Restrepo,⁹⁷ and the Inter-American Convention on Human Rights in 1973, during the presidency of conservative Misael Pastrana, the Constitution of 1886 did not enshrine social rights.⁹⁸ Even first-generation rights (civil and political) were enshrined in the Civil Code to have “legal force,” since the Constitution was not an enforceable norm.⁹⁹ In this context, during the twentieth century, Congress and, above all, the executive branch through decrees of the state of exception granted some social guarantees, such as the right to work. However, other constitutional provisions, such as the so-called “public assistance,” which the Constitution of 1991 recognizes as the right to social security, never had a practical application.¹⁰⁰

One of the initial speeches in the Assembly was that of President César Gaviria, who articulated what he thought should be the nature of social rights under the new constitution. He ended up summarizing the general meaning of what these types of rights were for most of the Assembly. Gaviria stated that “[in] a Social State, [...] a law that ignores [social rights] could be declared unconstitutional. [The] obligation [of the State] is to act to protect these rights and guide its economic and social policy to promote sufficient conditions for their realization. These socioeconomic and collective rights cannot be directly demanded by an individual before a judge.”¹⁰¹

The Assembly agreed on various socio-economic rights with the understanding that they would not be directly enforceable before a judge but would depend on the State to materialize them progressively. Therefore, the Assembly excluded the acción de tutela (the main judicial action invented by the new Constitution) from guaranteeing social rights because the action was aimed to protecting only the so-called “fundamental rights” (that is, civil and political rights). Thus, for example, drafters from different political wings such as Angelino Garzón (PL), Tulio Cuevas (MSN), Carlos Ossa (AD M-19), and Rodrigo Lloreda (PC), all from the Fifth Commission, proposed a right to social security to be developed progressively by the State, according to the principle of solidarity that supports the Social State, to pay off a social debt that caused unfairness.¹⁰² Thus, healthcare ceased to be an “act of charity” and became a “right,” guaranteed as a public service by the State, although people could not claim its protection before a judge because it was not a fundamental right.

Another example of a new social right as an instrument to fight inequality under this non-justiciability logic is the right to work. Although the government project had already proposed the idea of fair and sufficient remuneration for the subsistence of the worker,¹⁰³ in the debates of the Fifth Commission on social and economic issues, the right to work emerged as a mechanism for overcoming economic inequality in the debates. Thus, Angelino Garzón (AD M-19), Guillermo Guerrero (PL), Tulio Cuevas (MSN), Guillermo Perry (PL), Iván Marulanda (PL - Nueva Colombia), and Jaime Benítez (PL - Por un Nuevo País), proposed the constitutional establishment of the rights to work, to strike, to unionize, and to negotiation; hence, they supported “private property, freedom of business, and the market economy, but [they also defended that] democracy has to be expressed economically and that its foundation is the redistribution of wealth […] linked to the humanistic and Christian principle of social justice.”¹⁰⁴ Those rights were eventually approved by the Assembly as they are all enshrined in the Constitution;¹⁰⁵ in this way, the Assembly promoted a conciliatory approach between the social guarantees of the new State and the market economy, the two antagonistic trends among the drafters. The meeting point between the two axes was the promotion of workers’ participation in the management and even ownership of the companies, that is, the so-called “solidarity economy.” Examples of this type of economic policy are cooperatives, unions, and any other kind of workers’ intervention in management and profits. Hence, the Assembly understood the right to work not only as a warrant to the fair remuneration of people but also as a form to ensure a change in the traditional relationship between employers and workers, which, eventually, would foster a better redistribution of wealth and social welfare. However, labor rights also followed the rationale of the right to social security because, although the rights to work and to unionize were established as fundamental rights, the most redistributive aspects, such as a vital, minimum, and proportional salary or the guidelines for workers to participate in companies’ management, were not justiciable through the Constitution.

The right to education is another social right that illustrates the search for economic equality despite the absence of constitutional mechanisms. The Constitution of 1886 established that public education would be free, not compulsory, and managed by the postulates of Catholicism. However, that was modified in 1936 to guarantee the freedom of education and the compulsory nature of primary education.¹⁰⁶ Then, in 1991, the Assembly established education as a right and a public service. Although the final wording of the text approved by the Assembly does not contain an explicit reference to economic inequality,¹⁰⁷ some drafters did clearly express this relationship during the debates and used it as a justification for its establishment as a right. Thus, for example, the AD M-19 drafter Abel Rodríguez was one of those who proposed that, to “advance towards the achievement of social justice and equality in life”,¹⁰⁸ the Constitution should begin by establishing the age and grade for education to be compulsory, as it was indeed approved. Also, the right in the Constitution took shape thanks to interventions such as that of the liberal drafter Antonio Yepes, who highlighted the importance of education as a commonplace in which the entire population should participate to form a democratic culture that would overcome inequality as a “natural order” in Colombia.¹⁰⁹ Also, the indigenous drafter Francisco Rojas was one of the defenders of the idea that the skills granted by higher education could not continue to be a privilege because the inequality generated would end up affecting the ability of the economy to fulfill its function of social integration, which is why the State had to guarantee access to universities as part of the right to education.¹¹⁰ Nevertheless, even though the Assembly agreed on free-of-charge public education, it was only in 2011 that the government implemented this State obligation, and it was just for elementary and secondary school, not for public higher education,¹¹¹ which means that the Assembly did not approve any mechanism to ensure that the State provided free public education shortly after the enactment of the Constitution.

In this pillar, many voices in the Assembly supported the ideas that rights, especially social rights, are instruments of the State to redistribute wealth, guarantee equality of income, and improve the living conditions of the population; however, the mechanisms to achieve the latter objectives seem to be missing. One of the rights widely discussed in the Assembly was the right to property, as described next.

B. Property

The debate on the right to private property in the Constituent Assembly had several edges. The reason is that private property is not a right linked to a single article, but rather, like other aspects such as State intervention in the economy, it is linked to other institutions. This article focuses on four issues related to land ownership that I consider relevant because several drafters linked them to their speeches on economic inequality. These four issues are the social and ecological function of property, land reform (basically, the distribution of rural land), distribution of land to indigenous and Afro-descendant communities, and expropriation. Before presenting the fundamental aspects of these discussions in the Assembly on issues, I will present the situation in Colombia before 1991.

a. Property under the Constitution of 1886

The Constitution of 1886 was amended by Legislative Act 1 of 1936. It established the social function of property and two types of expropriation: with and without compensation.¹¹² This reform took place within the framework of the first social and interventionist reform of the State in the economy, presented by the liberal president Alfonso López, and it was called Revolución en Marcha (Revolution on the Move). Alfonso López belonged to the commercial and industrial upper class of the country and, even though the terminology seemed socialist, and the Conservative Party and the Catholic Church criticized it harshly, the reform was liberal because it sought to break the almost feudal model of land concentration in large haciendas, like in the colonial period, that, moreover, were not productive.¹¹³ This explains the introduction of the concept of “social function of property,” an expression coined by the French jurist León Duguit in the 1910s, and disseminated in Latin America and, in conferences in Colombia, by himself and by authors like the Colombian constitutionalist Tulio Tascón. Duguit was influenced by sociologist Emile Durkheim and positivist Auguste Comte.¹¹⁴ He criticized the individualism and sacredness of property established by the French Revolution and Napoleon’s Civil Code. The reason was that property is not a subjective right, that is, a natural right inherent to humans. Instead, it is an objective right that society grants to the owner, who is dependent on society to enjoy her right and, therefore, must contribute to it by using her property for the common good. Otherwise, the State could impose its positive obligation by force, for example, through expropriation, so that the property fulfills its function of generating wealth for all.¹¹⁵ Also, to create a mechanism for this purpose to be fulfilled, Congress enshrined not only judicial expropriation with compensation, which was already enshrined in Article 31 of the Constitution of 1886. It gave itself the power to determine in which cases there was no place for compensation. Expropriation without compensation required the positive vote of the absolute majority of both houses of Congress.

Since then, various norms have been issued to materialize the social function of property and expropiation but with little success. Law 200 of 1936 regulated the constitutional reform and was the basis of what would be known as Agrarian Reform throughout the twentieth century in Colombia.¹¹⁶ In essence, this Law established the land titling to the possessors (mostly tenant farmers or those who had invaded private or national lands) if they worked on them. However, in practice, the Law did not have a redistributive effect, but rather concentrated property more because its execution was bogged down by political pressure from various landowners and businessmen, who formed the Acción Patriótica Económica Nacional - APEN (National Economic Patriotic Action), integrated by both liberals and conservatives.¹¹⁷ In the 1960s, in a context in which the National Front tried to give stability to the country after the bipartisan conflict known as La Violencia, the Cuban Revolution had triumphed, and the United States promoted the Alliance for Progress with measures such as -among others- an agrarian reform that would avoid the outbreaks of communism.¹¹⁸ Then, Congress issued Law 135 of 1961, which had two axes: the redistribution of land and technical assistance to achieve it, which was delegated to the Instituto Colombiano de Reforma Rural - INCORA (Colombian Institute for Rural Reform).¹¹⁹ In addition, this Law defined the Unidad Agrícola Familiar - UAF (Family Agricultural Unit), which is the minimum amount of land that a peasant family should have for its exploitation to be productive.¹²⁰ Nevertheless, that Law was not applied during the government of the conservative Guillermo León Valencia. In contrast, the Law received a new impulse from liberal president Carlos Lleras Restrepo; during his government, peasants constituted the Asociación Nacional de Usuarios Campesinos - ANUC (National Association of Peasant Users), which allowed them to be an institutional actor within the reform promoted by the State.¹²¹ Also, Congress passed Law 1 of 1968, which accelerated the processes to distribute the land through, for example, the establishment of administrative action to extinguish ownership of improperly exploited lands and the compensation of properties according to their non-commercial value.¹²² However, bureaucratization, the opposition of the landowners, the emergence of paramilitary groups that confronted the peasants, the radicalization to the left of some peasants and other sectors, and the appearance of illicit crops within large new estates, resulted in the Law having few redistributive effects.¹²³

In this context, there was a rise in indigenous and Afro-Colombian movements for land. On the one hand, the guerrilla group Movimiento Armado Quintín Lame - MAQL, the first indigenous guerrilla in Latin America, was inspired by the indigenous leader, Manuel Quintín Lame Chantre, born in Cauca in 1880.¹²⁴ This indigenous leader fought against the landowners who accumulated ownership of the land and the benefits of its exploitation by indigenous peoples. Among the landowners who fought him, the conservative poet Guillermo Valencia, father of President Guillermo León Valencia, stands out, both from Cauca.¹²⁵ Likewise, the MAQL sought to appropriate land for the indigenous people by force of arms, for which it had the support of the M-19 guerrilla on several occasions. However, almost at the same time in the 80s, many indigenous people organized the Organización Nacional Indígena de Colombia - ONIC (National Indigenous Organization of Colombia), which also carried out land seizures from farms without being a guerrilla movement.¹²⁶ On the other hand, the Afro-descendant communities that, for the most part, had lived since the abolition of slavery in 1851 on communal lands on the Pacific coast and in valleys near the former haciendas, did not obtain full recognition of community property.¹²⁷ Instead, the State allowed companies and landowners to appropriate the most productive lands (for example, to produce sugar in Valle del Cauca).¹²⁸ Contrary to the MAQL and the indigenous peoples, the Afrodescendant movement in 1970 was not violent nor was it able to organize itself to bring a drafter to the Constituent Assembly in 1991.

During the 1970s, under the conservative president Misael Pastrana, the scope of the laws passed in the previous period narrowed. He was a staunch opponent of property seizures by force and, in a meeting with landowners and traditional parties (except the followers of Lleras Restrepo), Pastrana signed the Pacto de Chicoral (Chicoral Agreement).¹²⁹ With this agreement, later materialized in Law 4 of 1973, Law 5 of 1974, and Law 6 of 1975,¹³⁰ the government sought to reduce the institutional participation of the ANUC that demanded the implementation of the agrarian reform. The stigmatization and persecutions worsened during the presidency of the liberal Julio César Turbay (1978-1982) through its Security Statute, a decree with the force of law that persecuted peasant leaders as if they were leftist guerrillas and militarily prevented land taking.¹³¹ Instead of the redistribution of large estates, President Pastrana sought land allocation in uncultivated regions under the pretext of increasing the agricultural frontier; yet, the State did not help in this process. In the end, he supported the inclusion of additional requirements to hinder the expropriation and extinction of property rights, such as the existence of a sharecropping contract (which is an almost feudal version of the employment contract). As of this period, in a context of increased violence and pressure from armed groups and drug trafficking to the State, and in addition to the gradual elimination of the import substitution system, the State restructured the purposes of the agrarian reform and focused on overcoming the poverty of the peasants and promoting production through plans such as the Desarrollo Rural Integrado - DRI (Integrated Rural Development). Notwithstanding, Law 30 of 1988 was the one that definitively weakened the idea of an agrarian reform based on the expropriation and adjudication of vacant land of the nation, since it privileged the purchase of land by INCORA, the entity in charge of distributing to the peasants.¹³² However, this phenomenon generated at least two consequences. On the one hand, it generated more wealth for the landowners and, on the other, even though in this period INCORA bought more properties to distribute, this only benefited approximately 3.8% of the families without land or with enough land for a production that would guarantee survival (that is, an UAF).¹³³ All this happened to the detriment of a State power such as expropriation, whose basis was that the State imposed itself against the owner and not the other way around.

Finally, although there is no single consistent source that determines the GINI index of land concentration before the 1990s, all available sources place the coefficient of rural property concentration above 0.8 from 1960 to 1990.¹³⁴ Furthermore, between 1960 and 1984, while large owners (that is, with properties larger than 500 hectares) increased the area of their domains, the number of small owners (with less than 20 hectares) decreased by little, but it did tend to have less surface area than the total property registered in Colombia.¹³⁵ This is the setting in which the Constituent Assembly took place.

b. Reimagining property in the Constitution of 1991

In general, most of the drafters’ proposals supported the need to maintain the social function of private property and add the expression “ecological function” to it. In this way, the proposals sought to highlight not only the obligation of the owner to produce but also to respect the environment. Thus, for example, from liberals, Antonio Galán (brother of the murdered leader Luis Carlos Galán) proposed the right to land access, and the State’s duty to stimulate access to and exploitation of the land. In addition, he was in favor not only of maintaining the two types of expropriation provided in the Constitution of 1886 but also of administrative expropriation to expedite the agrarian and urban reforms without judicial review (only to dispute the amount of the compensation).¹³⁶ In the Conservative Party, drafters Juan Gómez and Hernando Yepes proposed to preserve the social function of private property. In addition, they only approved the expropriation with compensation in all cases in which a law or the government used it for reasons of public utility, social interest, or state of exception. Ultimately, Gómez and Yepes proposed community property based on solidarity and the non-seizure and inalienability of the properties of indigenous communities.¹³⁷ From the most right-wing dissenters of the Conservative Party, the MSN, drafters Raimundo Emiliani and Cornelio Reyes sought to eliminate the social function of private property. The reason was that, for them, the social function of property made no sense because all rights ultimately have a social function, which is why this is a characteristic that could not be predicated on property alone; in their opinion, that expression was the result of the socialist influence of the time (that is, 1936). Instead, they put forward the figure of abuse of the right when the owner did not fulfill the social function of property.¹³⁸ However, Emiliani and Reyes maintained their support for judicial expropriation and prior compensation, and expropriation without compensation has been planned since 1936. Finally, from the UP, drafters Aida Avella and Alfredo Vásquez presented a project that maintained the social function of property and expropriation even without compensation.¹³⁹ In addition, they proposed an obligation of the State “to carry out an annual inventory of lands to determine the urban and rural productive properties.”¹⁴⁰ Their idea was for the State to apply the extinction of ownership over unproductive properties and also expropriation with compensation over productive properties, if required. At last, Avella and Vásquez proposed that Congress should limit the extension of land that an owner could have; however, indigenous reservations could not be expropriated.¹⁴¹

The indigenous constituents also submitted similar projects. Drafter Francisco Rojas presented a project in which he defended the social function of property, community and solidarity property, and an agrarian and housing reform through administrative expropriation (not only judicial as the Constitution of 1886 prescribed) and extinction of ownership for non-compliance with the function of property. To avoid the concentration of land, Rojas even proposed that the State should suppress those private monopolies that did so, and that any property should be subject to expropriation (except ethnic territories). Finally, Rojas’s proposal contained two new rights: the right to housing with public services, and the right to access agrarian property in conditions that facilitate productivity. The State should guarantee integrated rural development and redistribution through development plans.¹⁴² As for Alfonso Peña, the drafter representing the indigenous guerrilla MAQL, he introduced a reform project, although he could not vote. He defended the continuity of the social function of the property but reinterpreted it through the need to distribute property in harmony with development plans that also promote different forms of property. In addition, for Peña, the Constitution needed to establish mechanisms to fulfill those ends. For this reason, his project preserved judicial expropriation, not necessarily with compensation, for the State to avoid paying additional expenses such as consequential damages and loss of earnings. Also, his project contemplated administrative expropriation for cases of agrarian reform and housing for the poorest. Ultimately, Peña promoted the extinction of ownership in both cases, as a sanction inherited from Law 200 of 1936, when the social function of the property was not fulfilled.¹⁴³

However, the project of a new constitution presented by the AD M-19 movement was characterized by not containing the classic formula of the social function of property. On the contrary, concerning property over land, the project presented only one article in which it proposed the non-seizure and imprescriptibility of the lands of the reservations of ethnic communities (that is, indigenous and Afro-Colombian) and the obligation of the State to promote incentives for them to fulfill their responsibility to protect resources and the environment.¹⁴⁴ However, it does not mean that none of its members supported, for example, the social function of property or agrarian reform. Thus, although it was not consistent with the proposal that he and his party offered, Carlos Ossa stated that the social function of property should be maintained and accompanied by administrative expropriation to give agility to the processes of agrarian and urban reforms, all in the framework of a Constitution that encourages the increase of wealth but the decrease of inequality.¹⁴⁵ In a tone more consistent with the reform project presented by his party, the constituent Abel Rodríguez stated that the objective of his party was for the Assembly to reach agreements so that the citizens themselves could fight to achieve agrarian and urban reform.¹⁴⁶

The social function of private property, expropriation, territories for ethnic communities, and agrarian reform were debated by the First Commission on rights, the Second Commission on territorial planning, and the Fifth Commission on economic affairs. In other words, those were cross-cutting issues that a single Commission could not study. The pronouncements on these four aspects were numerous within the Commissions and during the Assembly’s first plenary session. Thus, for example, in the First Committee, drafters such as Aída Avella (UP) and María Mercedes Carranza (AD M-19) proposed a bill of rights that included the establishment of the social function of property and judicial expropriation with compensation, and administrative expropriation without compensation. The only opponent was Raimundo Emiliani, who maintained his proposal to eliminate the social function of private property. Emiliani presented a draft article that, paradoxically, was more similar to the final wording of the article approved by the Assembly as will be explained later.¹⁴⁷ However, the bill of rights liberal Diego Uribe (PL) presented as the First Committee’s proposal to the plenary of the Assembly, did not contain the regulation of property rights, nor did it mention ethnic territories.¹⁴⁸ Another example of the variety of proposals are those of indigenous drafter Francisco Rojas (ONIC) -in the First Commission-, and other by sociologist Orlando Fals Borda (AD M-19) and Lorenzo Muelas (AICO) -in the Second Commission-. They defended the creation of an entire chapter to regulate indigenous and ethnic issues, including communal ownership of territories;¹⁴⁹ still, neither initiative was successful. Meanwhile, in the Fifth Commission, drafters such as Angelino Garzón (AD M-19), Mariano Ospina (PC), and Iván Marulanda (PL) proposed on behalf of the Commission several agrarian rights that were intended to be the guide of the agrarian reform with initiatives like, for instance, the prioritization of the integral development of the productive activities, access to land ownership, and respect for indigenous communities in their territories.¹⁵⁰ Those constituents also proposed transitory articles like the one that required that, within 120 days following the entry into force of the Constitution, the government should implement measures to stimulate integral development or the article that required the State to spend at least 8% of its annual budget for the agricultural sector.¹⁵¹

During the first plenary session of the Assembly, the variety of positions on these issues came to the fore. Therefore, an Ad Hoc Commission was formed to reconcile and unify the different proposals presented, integrated by the commissions and the drafters in the first debate. Thus, on the issues of property, expropriation, and agrarian reform, the Accidental Commission was formed with a conservative majority by Carlos Ossa (AD M-19), Raimundo Emiliani (MSN, and who might have influenced the final wording), Rodrigo Lloreda (PC), Guillermo Perry (PL), and Mariano Ospina (PC).¹⁵² Once this process was carried out, the Assembly voted part by part on the general article that defines the property. The proposal had an identical wording to the one that was finally approved; in fact, each of the paragraphs was approved with large majorities and without debate, except for two minor expressions. Eventually, this article as a whole was approved by 59 affirmative votes and 2 denials; there the Assembly established: the social and ecological function of property, judicial expropriation with compensation, administrative expropriation with subsequent judicial control including over the price paid, expropriation without compensation for equity reasons as defined by the legislator, and the indication that the reasons for any expropriation could not be disputed before a judge.¹⁵³ In the same terms, the plenary approved the non-seizure, inalienability, and imprescriptibility, among others, of the lands of ethnic groups and the indigenous reservations.¹⁵⁴ Also, the first plenary session approved the current Articles 64 to 66 with almost no debate, except for Article 64 on whether it should contain the verb “guarantee” or “promote” progressive access to land.¹⁵⁵ Thus, in Article 64, with 55 votes in favor and 3 against, the Assembly agreed on the State’s duty to promote progressive access to land ownership with all the guarantees for its production and improvement of the peasant’s quality of life.¹⁵⁶ Also, Article 65 approved with 48 votes and no objections the obligation of the State to protect food production and promote the integral development of production, for example, through research and technology.¹⁵⁷ Ultimately, in Article 66, the Assembly approved with 54 votes the possibility of benefits for agricultural credit.¹⁵⁸ The second plenary session of the Assembly confirmed everything as described. In fact, in the final approval of the general article on the property (that is, current Article 58) with 40 affirmative votes, the vote was nominal with three negative votes (drafters Juan Gómez (PC), Mariano Ospina (PC), and Cornelio Reyes (MSN)) and 17 abstentions (among them, Hernando Yepes (PC), and Carlos Rodado (PC)).¹⁵⁹

Nevertheless, there were two relevant issues without consensus. The Assembly did not reach an agreement on the issue of recognition of the territories traditionally inhabited by Afro-descendant communities because their geographical delimitation was not clear. Thus, the Second Commission proposed the recognition of black communities’ land rights along the Pacific coast. However, this geographical delimitation disregarded the fact that there are other black communities rooted in community territories in other parts of the country. Finally, the Assembly approved the current transitory article 55 that obliged Congress to pass a law in two years and after a wider discussion to recognize the right to collective property of those Afro-descendant communities.¹⁶⁰ Secondly, during the first plenary session, drafters Abel Rodríguez (AD M-19) and others promoted a new article according to which, following the social function of property, Congress should set a limit on the extension of land property. Yet, this article was only voted on by 22 drafters, with 10 negative votes, and 7 abstentions; thus, it was denied.¹⁶¹

In short, the Assembly conceived the right to property with a social and ecological function, promoted the guidelines for land reform, aimed to allocate land to ethnic communities, and accepted the continuation of expropriation as a matter of economic equality. These topics are closely related to the economic structure and the intervention of the State to regulate it as the next subchapter presents.

C. State and Economy

The relationship between the State and the economy was one of the great topics in the Assembly. This relationship was analyzed not only through social rights as economic obligations by the State towards citizens, but also as the need of the State to intervene in the management of the economy to meet all the social goals. In general, this subchapter shows the consensus on State intervention in the economy as a guarantee of freedom (e.g., freedom of business), but also equality on its substantive side, that is, economic equality.

State intervention in the economy was not an invention of the Constitution of 1991. It was enshrined for the first time in 1936 in the framework of the so-called Revolución en Marcha (Revolution on the Move) of President Alfonso López Pumarejo, the first social democratic program in Colombia. The reform established the intervention of the State “in the exploitation of industries or public and private companies, to rationalize the production, distribution, and consumption of wealth, or to give the worker the just protection to which he is entitled.”¹⁶² However, in 1968, President Carlos Lleras Restrepo led a constitutional reform to provide the State not only with the power to regulate companies to optimize their processes and protect the worker, but also to give the State a role as a planner or director of the economy.

Article 32 of the Constitution of 1886 established the freedom of business and private initiative, and, within that right, it enshrined the general direction of the economy by the State. Moreover, it described the intervention of the State in all economic processes from production to consumption, to “rationalize and plan the economy to achieve integral development.”¹⁶³ Eventually, the reform established that the State should “give full employment to human and natural resources within a policy of income and salaries, according to which the economic development has as main objective social justice and the harmonic and integrated improvement for the community and the proletarian classes.”¹⁶⁴ In this article, we can see the influence of the economic policy designed by the United States for Latin America, the Alliance for Progress.¹⁶⁵ This policy was aimed at promoting economic development in the region to lessen the chances of pro-communist uprisings. Development was understood as the growth of a country’s internal economy through mechanisms such as industrialization by import substitution or loans to guarantee macroeconomic stability and social investment. The State, and particularly the president, would guarantee growth through strategic interventions in the economy.¹⁶⁶ Thus, the American development agenda for Latin America was enshrined in the Constitution of 1886 and indeed, survived in the Constitution of 1991 with some modifications, despite the change in American economic policy towards Latin America and the world from the 1970s.

During the debates of the Constituent Assembly in 1991, most drafters advocated for State intervention in the economy. Although the essence of Article 32 survived in the new Constitution, many drafters promoted additional features, some of them more radical than others. Thus, trends can be classified into two groups. The first group included those drafters who sought to preserve the article according to its original wording explained above and those who wished to add some adjustments to complement it. The second group proposed a wording text with essentially different characteristics of State intervention, sometimes more radical, sometimes more lax. Next, I will describe each group.

Firstly, most of the projects sent to the Fifth Commission on Economic Affairs contained the same wording as Article 32 on State intervention or added other aspects. In general, the new proposals aimed to modify the style of the article and add intervention policies that would reconcile neoliberalism and a strong role for the State. For example, the reform project presented by the Liberal government changed the expression “income and wage policy” to “policy of economic stability,” which is relevant since the first expression sought that the intervention took into account the income of the population as an instrument to guarantee development and well-being, while the latter preferred macroeconomic stability as the policy to achieve such ends, a fundamental idea of neoliberalism.¹⁶⁷ Other liberals, such as Jesús Pérez, proposed adding policies such as the fight against inflation and regional improvement, ¹⁶⁸ or Antonio Galán and Ernesto Rojas proposed the management of savings, the exploitation of natural resources, the promotion of full employment, the fulfillment of the development plans, all to achieve an equitable distribution of wealth and income in the regions and at the personal level.¹⁶⁹ Similarly, the liberal Eduardo Espinosa proposed to prevent the concentration of wealth in the hands of one person and correct the inequalities that arise from production to consumption.¹⁷⁰ For him, an economic development model was necessary that would eliminate the unequal concentration of wealth, which could be done, for example, through real competition. Antonio Navarro and the other drafters of the AD M-19 presented a project that maintained the structure of Article 32 but added other policies of State intervention. Those policies were: ensuring minimum conditions of competition, productivity, and efficiency, protecting the rights of workers, consumers, and users, and seeking the development of the regions. In addition, the party’s proposal added an article where private monopolies and oligopolies would be prohibited, with due compensation for the existing ones.¹⁷¹ At last, those constituents who tacitly accepted Article 32 without modifications can also be included here, such as the constituents of the MSN Raimundo Emiliani and Cornelio Reyes who, in their extensive project to reform the Constitution, did not even mention Article 32.¹⁷²

Secondly, a minority of drafters presented projects that, although inspired by Article 32, had different policies from those mentioned above. Like conservative Rodrigo Lloreda, conservatives Juan Gómez and Hernando Londoño expressly proposed a market economy as an economic regime within which freedom of business, freedom of competition, and democracy were guaranteed, with State intervention only when individuals or the situation demanded it. Also, such intervention would serve to guarantee the provision of basic public services and be subject to evaluation by the public so that they could participate in the exercise of the intervention. Additionally, the project foresaw that the intervention by the executive branch would not only cover monetary, credit, and fiscal policy, but also have egalitarian social development, increased productivity, internationalization, and the control of monopolies to prevent the concentration of property. Finally, the project expressly declared that ecological balance prevailed over economic development.¹⁷³

The project presented by the Patriotic Union Party, although it preserved part of Article 32, emphasized three different intervention policies. First, fundamental economic decision-making would be coordinated with unions; second, the State could nationalize any type of company; in the end, the intervention should preserve the environment. It is worth highlighting the coincidence of two policies of this left-wing party with the Conservative Party, but above all the explicit proposal to provide the State with the power to nationalize companies.¹⁷⁴ This proposal was already existing in the initiatives presented by the Patriotic Union in its founding program where, besides, it explained the need to nationalize extractive companies of natural resources or banks, not only as a matter of sovereignty against foreign capital but also for redistributive purposes of economic benefits.¹⁷⁵ Additionally, in other articles, the Patriotic Union proposed intervention measures such as “economic democracy,” according to which, in companies, no one could have more than 30% of the total capital, and also no foreign investor could have more than 49% of any company’s shares.¹⁷⁶

After presenting the proposals, the Fifth Commission, with the participation of two of the few economists in the Assembly, Iván Marulanda (PL - Nueva Colombia) and Guillermo Perry (PL), presented a unified draft article with a similar structure to that of Article 32, a draft that was approved by the plenary of the Assembly with a vast majority. The Commission structured the article in two paragraphs. The first contained new general intervention policies, such as the power to intervene in the exploitation of natural resources and land use, the equitable distribution of opportunities, the benefits of development (which replaced the expressions “integral development” and “social justice” because these were considered outdated), and the preservation of the environment. The second paragraph (which the Codifying Commission divided later) determined the specific objectives of the intervention, such as providing “full” employment to materialize the social right to work, ensuring public services to satisfy basic needs, promoting productivity, and regional development. Policies such as agreements with unions on economic decisions or economic stability were left out, because, in the opinion of the majority in the Codifying Commission, they overloaded the Constitution.¹⁷⁷

Although the article was approved by all the attendees (61 constituents), drafter Aida Avella (UP) presented only one additional proposal.¹⁷⁸ She insisted on including the power to nationalize companies, whether Colombian or foreign, as one of the distinctive elements of her initial proposal before the Commission.¹⁷⁹ We can interpret Aida Avella’s request, even though the article on public services also contemplated that the State could reserve the provision of public services (an article that continues in the Constitution today), as a wish that the State had that specific power not only in public services (an article that continues in the Constitution today) but also in key sectors of the national economy, such as oil companies or banks. The political agenda of the UP listed that policy, wich was also shared by the FARC-EP.¹⁸⁰ In the end, this proposal obtained 20 affirmative votes, 14 negative votes, and 11 abstentions, and, since it did not obtain an absolute majority, it was denied.

This subchapter shows that the Assembly did agree on State intervention in the economy as a tool for fighting economic inequality. One of those policies that the Assembly debated to distribute wealth was territorial social expenditure. Next, I will explain it in depth.

D. Territorial Funding

Inequality in territorial entities’ funding was one of the objectives to be fought by the Constituent Assembly. However, the discussion was not new in 1991. Contrary to the liberal Constitution of 1863, wich enshrined the federal regime in Colombia with total sovereignty of the states to capture and administer its funds, the conservative Constitution of 1886 centralized the State and made any local spending depend on the will of the President through their appointees: mayors for the municipalities, governors for the departments (the former states). From 1905, the most unpopulated territories of the departments were transformed into “national territories” called intendencias or comisarías and subjected to a more direct administration by the president; among them were territories such as Chocó, Amazonas, or Guajira. Nevertheless, at the end of the 1960s, in a context in which international organizations such as the Economic Commission for Latin America and the Caribbean - ECLAC recommended that Latin American countries promote not only planning through State intervention in the economy but also decentralization as an instrument for development, President Carlos Lleras Restrepo promoted the rules that would mark the beginning of the distribution of national income to territorial entities to meet social needs.

After Legislative Act 1 of 1968, wich amended the Constitution, Law 46 of 1971 was issued, which established the so-called situado fiscal.¹⁸¹ The reform assigned a percentage of the State’s ordinary income to the departments, intendencias, comisarías, and the district of Bogotá to fund their services. Ordinary income was that current income (tax and non-tax) not intended for a specific expense. Law 46 of 1971 defined the percentage of ordinary income as situado fiscal and stipulated that it should only satisfy public services of primary education and public healthcare in those territorial entities. According to this act, the situado fiscal started at 13% in 1973 and increased by 15% in 1974, although it could increase up to 25% after that date. Of the total fiscal budget, 74% would go to primary education and 26% to healthcare, unless the government allocated otherwise in the respective annual budget. In turn, the situado fiscal was divided into 30% for all territorial entities and the other 70% according to their population. These norms achieved that the allocation of resources to the departments was rationalized, standardized and ensured at least two basic services in their municipalities: primary education and healthcare.

During the following years and until 1990, the income allocated to these two services increased, as did the demand for services. Law 12 of 1986, in addition to extending municipalities’ participation in the V.A.T. from 30% in 1985 (according to Law 33 of 1968) up to 50% in 1993, demanded that said V.A.T. share should be used for education in a proportion of 30% or 50%, depending on the number of inhabitants in the municipality.¹⁸² Besides, Law 10 of 1990, the primary legal framework for healthcare, established that, as of 1991, the situado fiscal share for healthcare would be equal to 4% of current income (higher than ordinary income) with the possibility of an increase, provided the situado fiscal did not exceed the 25% of the ordinary income of the Nation.¹⁸³ Thus, by 1991, the territorial entities had already gained a greater share of the Nation’s income to finance the two basic services. Notwithstanding, the Assembly concentrated on addressing the problems that this division had not yet solved.

The discussion on the funding distribution to the territorial entities was extensive. As the conservative lawyer and economist Juan Camilo Restrepo, who later became Minister of Finance, described it in 1991, the general framework of the debate on funding distribution in the territories in the Assembly could be summarized as the conflict between two ideas: decentralization and fiscal sovereignty.¹⁸⁴ Thus, the struggle consisted of whether the decentralization of resources that began in the 1970s should be intensified and the territories should be given greater autonomy to collect revenue, or if, on the contrary, the Constitution should support fiscal sovereignty to grant full powers to the territories to collect their taxes. The Assembly opted for the first option. Furthermore, in many proposals and speeches, the drafters showed a consensus that a better distribution of revenue among the territorial entities was essential to overcoming economic inequality.

The most relevant policies discussed here were the situado fiscal to departments, the participation of the municipalities, bonuses for natural resources exploitation, and social spending. Thus, for example, from the liberals, the constitutional law professor from Cartagena, Jesús Pérez (PL) presented a reform proposal in which he insisted that the population should not be the criterion for distributing situado fiscal and municipalities’ shares. ¹⁸⁵ The reason was that there were regions that, despite having a higher proportion of their population living in poverty, received less funding as they had fewer inhabitants compared to the national total. Therefore, the drafter proposed to make the distribution according to the number of people with unsatisfied basic needs (U.B.N.) in a territory, that is, needs for education, healthcare, and sewerage, among others. Similarly, the project of the 19 constituents from the AD M-19 sought a raise in situado fiscal from 15% of ordinary income to 25% of the Nation’s current income, and the allocation of 20% of that share for the less developed departments. From the conservative party, drafters Juan Gómez and Hernando Londoño proposed a new model based on fiscal capacity, unsatisfied basic needs, flexibility, complementarity, and a fiscal and administrative effort by territories.¹⁸⁶ In other words, their proposal sought a distribution system that would allocate more resources to the territories with less capacity to generate revenues but more poor people. In addition, it did not establish specific percentages because it delegated the transfers’ regulation to an act, which should complement what the territories would gain through their efforts and an efficient administration. On the other part, the Patriotic Union presented a project where, although it did not establish specific percentages or items, it did oblige the State to prioritize social expenditures and give territorial entities the power to define their fiscal regime.¹⁸⁷ Also, this initiative proposed that municipalities have more generous participation in the distribution of bonuses from the exploitation of non-renewable natural resources, that is, the so-called regalías.

Many voices in the Assembly condemned the conditions of inequality in many regions at that time. In the first report that included all the proposals on public funding presented by the drafters, conservative constituent Carlos Rodado (PC), Jesús Pérez (PL), and the constituent from the AD M-19 Helena Herrán, in the Fifth Commission, summarized the consensus on the need to strengthen territorial entities funding. In their concept, the gap between rich and poor regions was due to an unequal distribution of the productive apparatus and a concentration of wealth in specific regions, among other structural factors.¹⁸⁸ However, they stated that the revenues allocation carried out by the State maintained inequalities because the central level reserved the highest percentage of revenues while assigning more responsibilities in matters of public services to territorial entities. They also justified the distribution according to unsatisfied basic needs as a principle, accompanied by an incentive to the territorial entities that were efficient in managing funds and gaining more through local taxation. For the constituents, that implied it was not necessary to create new taxes and to give territorial entities the power to create more taxes through fiscal sovereignty. Also, that principle encouraged the territorial entities to be diligent and not get used to living on the revenues granted by the central level. Hence, the three constituents proposed to the Fifth Commission concrete tools to redistribute resources, such as a new configuration of the situado fiscal, direct transfers from the Nation to the municipalities, the creation of a National Bonuses Fund, and the inclusion of a chapter on public social expenditure in the Annual Budget Act.¹⁸⁹

Nevertheless, not only the constituents of the Fifth Commission for Economic Affairs debated this issue. For example, in the Second Commission on land use planning, the liberal medical doctor and former vice minister of healthcare, Eduardo Espinosa (PL), justified the creation of regions (union of departments) as an instrument to redistribute income in a more balanced way among departments with a similar history, culture, or geography.¹⁹⁰ Similarly, the liberal and Columbia-trained business administrator, Eduardo Verano (PL), favored regionalization as a mechanism to redistribute the wealth generated in large cities that did not reach peripheral areas.¹⁹¹ Finally, former M-19 guerrillero Héctor Pineda also defended regionalization as a process to integrate neglected territories into the domestic market which, in his opinion, constituted a form of “compensation” to the formerly sovereign states abolished by the Constitution of 1886, which had limits very similar to the geographic and socioeconomic regions that the Assembly discussed.¹⁹²

The debates in the Fifth Commission changed the first draft initially proposed by drafters Rodado, Pérez, and Herrán. However, the new set of articles maintained its essence and was approved by large majorities in the first plenary session of the Assembly.¹⁹³ After a review made by the Codification Commission that was partially objected to by several drafters, the Assembly also approved the articles in the second plenary.

Firstly, with 54 votes, it approved a regulation on situado fiscal for departments to fund preschool, primary and secondary education, and healthcare services in their municipalities. Although the norm did not include a specific percentage of current income, it did order that at least 85% of that percentage would be for all departments according to the number of users and services provided, and their fiscal and administrative effort. This distribution could be changed by Congress every five years after evaluating its performance.¹⁹⁴ These policies became Article 356 (amended today).¹⁹⁵ Secondly, the Assembly approved a new article that established the obligation of the State to transfer a minimum percentage of the current income to the municipalities, which would increase annually from 14% in 1993 to 22% in 2002.¹⁹⁶ Of that percentage, 60% would be allocated according to the population with U.B.N., a share that Congress could modify after five years; furthermore, the drafters agreed on the possibility that municipalities were eventually assigned new responsibilities for social investment. Thus, with 52 affirmative votes, Article 357 (amended today) was approved.¹⁹⁷ In another rule approved by the Assembly (Article 361 of the current Constitution, amended today), the constituents prescribed the distribution of bonuses to the territorial entities and created the National Bonuses Fund, according to the terms of a law issued by Congress. The proposal was adopted in the first debate and, later, confirmed in the second plenary with 49 affirmative votes.¹⁹⁸ Ultimately, there was a greater consensus in the Assembly to oblige the State to include a chapter on social expenditure in the Annual Budget Act. That expense would have priority over any other allocation, except in cases of war or for reasons of national security (a relevant exception due to the Colombian context).¹⁹⁹ This proposal was enshrined in Article 350 of the Constitution and was adopted without any opposition in the first debate and with 49 affirmative votes in the second debate.²⁰⁰

Thus, the subchapter shows that the Assembly was concerned about the revenues allocated to territories to fight economic inequality. However, the State needed the funds to accomplish a fair distribution. The last subchapter presents the consensus and disagreements on taxation in the Assembly.

E. Taxes

The first televised presidential debate in the history of Colombia was on February 11, 1986. The candidates who participated were Álvaro Gómez, from the Conservative Party, and Luis Carlos Galán, from Nuevo Liberalismo (New Liberalism), a leftist dissidence of the Partido Liberal Colombiano.²⁰¹ Taxes were one of the six points discussed that day; specifically, the question for the two candidates was how each one would manage to balance the promises of their electoral programs without raising taxes. On the one hand, Gómez affirmed that the taxes were very high; according to him, they were oriented to punish the saver and maintain a State full of inefficient bureaucracy. He proposed to reduce the size of the State and rationalize expenditures to increase efficiency. In addition, he assured that the reduction of taxes would decrease evasion, since it was easier for everyone to pay low taxes, which would guarantee growth both in the income collected and in private investment. On the other hand, Luis Carlos Galán supported a tax reform that would simplify the collection of taxes and their distribution, but which, at the same time, would guarantee that those with greater wealth would contribute more money to the finances of the State. For him, this model states that the modern State of the last fifty years assumed the responsibility of eliminating the class struggle through the redistribution of wealth, not as a favor from the political elite, but as a State policy. The description of this debate is relevant here because it illustrates two things. Firstly, it shows the general discussion about the tax regime in force before the Constitution of 1991. And, secondly, the debate reveals the two main antagonistic visions that would meet five years later in the Assembly to create a new pact on taxation. I consider each of the two in turn.

a. Taxes in the Constitution of 1886

The Constitution of 1886 mentioned taxes in a few articles. Originally, the Constitution referred to the power of Congress to establish taxes (although it implicitly allowed the president to do so through states of exception) and the date of entry into force of the collection of contributions or indirect taxes, which was six months.²⁰² During the one hundred years of existence of that regime, a few changes were added. Even so, that did not stop Congress and the executive branch from introducing taxes such as the sales tax (V.A.T.), the income tax, or the wealth tax; the latter was in place for 54 years and is still highly controversial. Below, I present a brief historical review focusing on those three taxes to contextualize the debates in the Assembly in 1991.

At the end of the nineteenth century, almost 80% of the State’s revenues came from customs taxes.²⁰³ However, at the beginning of the twentieth century, Congress created the first two modern taxes: Law 26 of 1904 created the tax on the consumption of luxury goods,²⁰⁴ and Law 56 of 1918 established the income tax,²⁰⁵ reinforced by Law 64 of 1927.²⁰⁶ In the 1930s, two events increased the number of taxes: on the one hand, the 1929 world crash reduced foreign trade and, therefore, the customs tax; on the other hand, the arrival of Alfonso López with his social democratic government plan. Thus, Law 81 of 1931 increased the income tax,²⁰⁷ Law 78 of 1935 created complementary taxes on wealth and excess profits,²⁰⁸ and Law 63 of 1936 established the tax on occasional gains (inheritances and donations).²⁰⁹ Faced with the decrease in foreign trade during the Second World War, Congress increased the income tax with Laws 45 of 1942 and 35 of 1944.²¹⁰ Nevertheless, it was during the dictatorship of General Gustavo Rojas Pinilla that greater equity was sought through Decrees 2317 and 2615 of 1953,²¹¹ which increased income and wealth taxes and established double taxation of companies and dividends of shareholders. Thus, in 1955, income and wealth taxes constituted 53% of the State’s tax revenue.²¹²

Another important milestone was Law 81 of 1960.²¹³ This Law was influenced by a commission of experts from ECLAC and Harvard University, and, in general terms, it reduced direct taxes such as income, wealth, and excess profits. The purpose of this modification was, on the one hand, to eliminate tax burdens on small and median incomes, but, on the other hand, to encourage the productive sector and private investment for the benefit of the country’s industrialization. However, this led to a decrease in income that ended up with the issuance of Law 21 of 1963,²¹⁴ which gave the conservative president Guillermo León Valencia the power to increase direct taxes and create an indirect tax called “sales tax” through Decree 3288 of 1963, which would later become the value-added tax, V.A.T.²¹⁵

Despite certain stability in tax collection, in the mid-1970s the country suffered high inflation and the liberal president Alfonso López Michelsen issued the Decree of Economic Emergency 1970 of 1974 that served to issue decrees that reformed the tax structure.²¹⁶ Thus, López Michelsen reduced most of the incentives of Law 81 of 1960 and implemented the presumptive revenue of wealth, to increase tax collection, reduce evasion, and combat inflation. Notwithstanding, the reforms were unsuccessful, and the system was dismantled in 1977 through the reduction of direct taxes, and the declaration of amnesty for tax evasion, among other measures that reduced the State’s income again. Thus, by 1980, income and complementary taxes such as wealth tax reached 30% of the State’s tax income compared to 20% of the sales tax.²¹⁷

The reforms of the 1980s sought to counteract the decline in income. They expanded the sales tax and transformed it into the V.A.T. (Law 9 of 1983 and Decree Law 3541 of 1983, which established its rate at 10%),²¹⁸ decreased the percentages of direct taxes through incentives, and ended double taxation. Also, under the protection of Law 14 of 1983,²¹⁹ the taxes of the territorial entities were strengthened, such as land taxes. Finally, in 1989, according to Law 84 of 1988, the President issued Decree 1321 of 1989 that eliminated the wealth tax,²²⁰ a tax that, according to some calculations, was around 20% of total income tax on average since 1936 and ended up being 5.45% in 1991.²²¹ The motivation was the need to “harmonize” the tax burden of taxpayers who already paid, for example, property tax for their real estate before the territorial entities, that is, to eliminate double taxation. That decision was framed in a context in which the governments of Virgilio Barco, first, and César Gaviria, later, promoted the economic opening of the State to a free international market economy.

This historical account suggests at least two things. The first is that, at the time of the presidential debate between Gómez and Galán, the trend of the moment was to reduce taxes that could be considered “anti-private investment burdens”; in other words, the governments endorsed Álvaro Gómez’s position. The second issue is that the discussions on economic inequality in the Constituent Assembly took place in a context in which direct policies to reduce inequality, such as the wealth tax, were being dismantled. This context could explain the weak consensus in the Assembly on the constitutional structure of the tax system, as I will show below.

b. A new Tax Structure in 1991

There were several proposals on the tax system in the Assembly. For instance, drafter Jesús Pérez (PL) proposed the prohibition of tax law retroactivity, the progressivity of land tax, and the Congress’s power to propose any modification to the laws on personal exemptions to income tax, on its initiative and without the government’s intervention, which had the initiative in budgetary matters according to the Constitution of 1886.²²² In this last aspect, the journalist Alberto Zalamea (MSN) agreed.²²³ The AD M-19 proposed some principles for the taxation system according to which Congress would be obliged to approve tax laws to promote equity, efficiency in collecting taxes, and development.²²⁴ In the Conservative Party, constituents Juan Gómez and Hernando Londoño proposed that Congress and collegiate bodies of the territorial entities could create taxes, and suggested wealth taxes as a general principle of public finances.²²⁵ Additionally, the leader of La Séptima Papeleta movement, Fernando Carrillo, in his constitutional reform project inspired, according to him, by the Nuevo Liberalismo movement of Luis Carlos Galán and the discussions within the student movement,²²⁶ proposed the duty of the inhabitants to pay taxes according to their economic capacity. In addition, he proposed distributive justice, equality, and progressiveness should be the principles of the tax system and that public revenues should be allocated and spent according to the principles of equity, economy, and efficiency.²²⁷ Finally, in the draft constitution of the UP party, in Articles 46 (on the guidelines of the national development plan) and 49 (on the annual budget law), Aida Avella and Alfredo Vásquez (UP) sought to tax mainly land, capital gains, and real estate. They also proposed direct and indirect taxes should not exceed 25% of the State’s tax revenues, otherwise, the State would be obliged to collect more direct taxes on assets, e.g., land. Furthermore, the UP project proposed the obligation that the annual budget law should privilege social expenditure and direct taxation.²²⁸

The reports prepared by the constituents Carlos Rodado (PC), Jesús Pérez (PL), and Helena Herrán (PL), within the Fifth Commission, which summarized all the previous projects,²²⁹ depicted the Assembly’s general conception as if it believed that it was not necessary to create more taxes but to improve the allocation of those already in force. In other words, according to the reports, the discussion did not criticize enough the increase of indirect taxes in the total share of fiscal revenue during that period and its effects on economic inequality. Moreover, the debates in the Fifth Commission had the joint participation of the Second Commission. The reason is that the discussion on taxes focused on granting greater participation to territorial entities in the collection of the most dynamic taxes, especially V.A.T., to guarantee territories greater fiscal autonomy to collect new taxes under the law (for example, through liquor taxes) and to protect the exclusive ownership of those revenues by territorial entities. However, concerning the general regulation of the tax system, the commission’s proposal to the plenary consisted of only one article that declared the non-retroactivity of taxes, which was already implicit in the Constitution of 1886.²³⁰ During the first plenary session, the constituent Fernando Carillo (elected through the La Séptima Papeleta movement) proposed an addition to the article initially presented by the Fifth Commission. His proposal consisted of insisting on the need to determine the three basic principles that should guide tax policy; those were equity, efficiency, and progressivity.²³¹ These principles reflected his initial proposal presented to the Fifth Commission. Although the Gazette did not address his explanatory memorandum, I can explain the meaning of those principles as follows, according to their context. Equity referred to equality in the collection of taxes, more specifically to the fact that there were no excesses when gathering or exempting; efficiency was related to good management of resources both in their management and in their destination; progressivity was especially linked to the expectation that whoever had more assets would pay more as well.²³² Ultimately, the first plenary adopted this proposal with 60 affirmative votes and without further discussion.²³³ Additionally, the Assembly approved with 41 votes in favor and 26 against the current transitory Article 43 that obliged Congress (and, failing that, the President) to issue a tax reform in 18 months so that the State could comply with the new (social) obligations derived from the new Constitution. The most representative protest was that of the conservative constituent Rodrigo Lloreda (PC), who stated that the transitory article broke up the general agreement reached by the Assembly that only Congress could impose taxes and carry out the tax system.²³⁴

During the second plenary session, barely two days after the Assembly’s session period ended, the ex-guerrillero drafter Darío Mejía (EPL), supported by others such as Aida Avella (UP), Francisco Rojas (ONIC), and Iván Marulanda (PL - Nueva Colombia), proposed to modify the article that described the tax system. The constituent requested the inclusion of this text: “The law will gradually increase direct taxation in relation to indirect taxation as a criterion of social justice.”²³⁵ The text was not approved, as it only obtained 31 affirmative votes. On the other hand, the version of the article approved by the first plenary session got 56 affirmative votes and no denials or abstention votes; thus, it was approved unanimously and is the current Article 363 of the Constitution. Unfortunately, neither the Gazette nor the transcripts offer data on which people voted for the modification proposed by Mejía. What can be learned from the transcripts is Mejía’s motivation only. For him, this proposal had the objective of forcing the State to progressively increase the portion of direct taxes on the richest, because, for him, the Colombian people were paying too many taxes.²³⁶ The proposal followed what several constituents initially put forward, namely, making explicit the obligation for the State to promote the predominance of direct taxation as an instrument to combat economic inequality.

In summary, many constituents proposed to provide the State with guidelines to develop a tax policy to fight economic inequality, although under different terms. However, even if there was a sector that, until the last minute, intended the Assembly to adopt the express establishment of the priority of direct taxes, the Assembly did not approve it. Thus, the general agreement on the tax system can be found in Article 363 and in the four basic principles that govern it: equity, efficiency, progressivity, and non-retroactivity. Of course, there are other tax principles implicit throughout the constitution (for example, the principle of legality). Nevertheless, the tax pillar agreed upon by the Assembly did not emphasize explicit mechanisms for taxation to overcome economic inequality. This is paradoxical, first, because several constituents from different political backgrounds were aware of the importance of direct taxation as an explicit principle in the constitution, and second, because, despite that, the majority ended up voting for the simplest and most general regulation.

Thus, the next chapter argues that, along with other gaps in the constitution’s regulation, the Assembly did not design a well-structured and coherent plan with concrete mechanisms to fight against economic inequality, despite having all the power and proposals to do so.