By: David Vásquez Hurtado, Carlos Mejía Suarez and Carlos Gardeazabal Bravo
On April 28th, 2021, major protests began in Colombia. Demonstrators occupied public spaces deploying multiple strategies to that their voices reached all sectors of society. American news outlets in the coming weeks presented this situation as an outburst against fiscal reforms, which for some represented a threat to a supposedly strong democracy, even voicing unsubstantiated worries by officials about the involvement of foreign actors such as the Venezuelan government. The rush to explain the widespread and intense discontent among the population connected it to a supposed infiltration of violent actors, a fictitious internal enemy. In fact, we propose that state agents’ highly repressive and violent response to this protest is at the heart of a long-standing governmental practice of close-off venues for political intervention in Colombia. This political closure, in favor of over-policing the polity, can be understood by tracing the legal framework of the state of exception as a practice first rooted in legal measures and then continued as an institutional culture in the country. For us, it is clear that the protests in recent years in Colombia (2019-21) were a powerful counter-narrative against the prevalent frame of the state of exception.
Referring to the impact of the COVID-19 pandemic, the administration of Iván Duque proposed a fiscal reform that supposedly aimed at supporting social programs. This assertion was questioned by economists like Salomón Kalmanowitz, who argued that the reform would highly impact the already struggling middle class. If we follow this analysis, the Colombian society was about to take yet another step in the already mounting gap between the richest, which according to the World Bank places the country second in the highest level of inequality in the continent. We must, therefore, understand the social outburst as a resistance to the reduction of bare life to which Duque’s government seemed to appeal through its measures. As such, it was also a resistance against the elimination of human life that is not perceived as a crime. The financial precarization and the absolute subjection of the population by means of fiscal and police measures go hand in hand and therefore operate as an articulation between the population’s outburst and the government’s response.
Despite the fact that the 1991 constitution sought to put an end to the so-called permanent “state of siege,” regulating it and restricting its extension over time, the Colombian state continued to act as if it had never ended. During the 20th century and what has transpired in the 21st, Colombia has experienced prolonged periods under the state of exception, producing well-documented systematic human rights violations. Evidence of this is the continuous human rights violations reported over the last 30 years. Disappearances, extrajudicial executions, and torture, among others, were collected by the recently published Final Report of the Colombian Truth Commission.
An undeclared but operative state of exception continued to reduce the civilian population to the condition of bare life, in which any person can be deprived of their rights. The social mobilizations that took place between May and June 2021 exposed this condition more clearly, as Colombians were able to see the human rights violations as they happened in the streets through social media and alternative news outlets. As a result, the civilian population resisted being reduced to bare life: they refused the “terrorist” or “vandal” labels used to criminalize social protest. This refusal fragmented the identities assigned by the regime, and thus legitimized social mobilization as a form of citizenship and civilian participation in the country’s political life. Colombian’s resistance against the never-ending state of exception constitutes an example of what Rancière would call a “dissensus against the denial of the rights.” Jacques Rancière argues in his radical critique of Giorgio Agamben’s ideas, that the theory of the state of exception cannot end up being “the ontological destiny of the human animal ” (309). The 2019-21 protests show how marginalized political subjects, who were reduced to bare life, became subjects of rights. The emancipatory quality of the protests was a unique moment in Colombian history because it challenged the oppression, changed the official narrative, empowered marginalized people, and produced a new landscape of political possibilities.
Historical roots of the state of exception (state of siege) in Colombian constitutions
The history of the “state of exception” figure in the 1886 Colombian constitution and its limitation in the 1991 constitution allows us to understand the roots of repressive practices on the part of Colombian political institutions. The 1886 constitution governed Colombia from 1886 to 1990. During this period, several violent events occurred that justified the application of a state of exception (State of Siege) for long periods. This special state was a set of extraordinary measures or decrees of a provisional legislative nature that, within said limits, were dictated by the president and were mandatory as long as all Ministers signed them. Once the State of Siege was declared, the president could govern by decree (Executive Action), in all matters related to the situation in the country and without the need to present bills before Congress. The Government will declare public order restored after the disturbance or external danger has ceased, and it will pass a reasoned exposition of its provisions to the Congress. Any authorities shall be responsible for the abuses they may have committed to exercising extraordinary powers.
Under the ominous Article 121 of the 1886 Colombian constitution, the ﬁgure of the state of exception was used unreasonably to control political violence, and the opposition groups were most aﬀected by seeing their fundamental rights diminished. During the 1970s and early 1980s, the armed forces and state security agencies obtained prerogatives typical of a military regime, which exempted them from the political costs of the direct exercise of power. By the end of the 1970s, around a third of the crimes of the Penal Code were the competence of martial courts. Between 1949 and 1991, the Republic of Colombia was under a state of siege for more than 30 years; in fact, between 1970 and 1991, 21 years in total, the country remained in a state of emergency for 206 months; that is, for 17 years. According to the Committee for Solidarity with Political Prisoners Foundation (CSPP), between 1973 and 1984 there were 73,768 human rights violations. There were also 40,554 cases of arbitrary arrests, 4,635 of them between 1979-1982, during the validity of the “Statute of Security”, one of the most atrocious state of emergency decrees in the history of Colombia. During that same period, 446 cases of torture were reported out of a total of 756 cases reported between 1973-1984. In addition, 729 Colombian citizens were subjected to court martial (military trials) 91% of these also occurred between 1979 and 1982. On the other hand, between 1973-1984, 129 people were forcibly disappeared, 126 of which were between 1979- 1984.
The indefinite extension of the state of siege normalized the violation of human rights in Colombia. Public opinion trusted the authorities and considered it was about fighting the guerrillas at any cost. The prolonged internal conflict in Colombia for more than five decades turned it into a country governed through legislative decrees, without political control of the Congress and in which the military forces administered a large part of the national territory. In this way, a regime that should be of exception and transitory duration in practice became a typical element of the exercise of political power: the exception became the rule. The executive branch practically encouraged the armed forces to commit acts of repression against any act of protest, uprising, or rebellion. A report of the Inter-American Commission on Human Rights (IACHR) on the human rights situation in Colombia from 1981 states that the conditions derived from the state of siege, in force almost uninterruptedly for several decades, have translated into an endemic situation that has aﬀected, to some extent, the full enjoyment of the freedoms and rights of citizens, because, among other aspects, the trial of civilians by military courts has been allowed. (Comisión).
The promulgation of the 1991 constitution changed the requirements for declaring a state of exception. Everything related to this topic was consecrated in the sixth chapter. Article 213 refers to the declaration of the state of exception, previously known as the state of siege. There are several differences between what was stipulated in the Constitution of 1886 and that of 1991 regarding the declaration of a state of exception. The first is the condition that the situation that justifies the declaration of this state “cannot be averted through the use of the ordinary powers of the Police authorities”; The second is that the state of exception can only be declared for a term of 90 days “extendable for up to two equal periods, the second of which requires the prior and favorable opinion of the Senate of the Republic” this means that the new Constitution limited the absolute power that the president had and gave more power to the Colombian Congress to exercise political control over the extension of the states of emergency. In addition, the 1991 constitution determined in that same article that “Within the three days following the declaration or extension of the State of Commotion, Congress will meet in its own right, with the fullness of its constitutional and legal powers. The president will immediately send a reasoned report on the reasons for the declaration.” Such provisions gave Congress much more power to monitor and control the declaration of states of emergency. On the other hand, article 213 also determined that “In no case may civilians be investigated or tried by military criminal justice.” This implied a significant reduction in the military forces’ power in Colombia compared with the states of siege before 1991, as they could no longer arrest or try Colombian civilians indefinitely.
In addition, article 214 determined that during states of exception, “Human rights and fundamental freedoms may not be suspended. In any case, the rules of international humanitarian law will be respected,” which entailed a substantial limitation to the power of the executive branch during states of emergency. Colombia has ratified a large number of international treaties on human rights, and the legal system recognizes these treaties as an integral part of the Constitution itself within the concept of the Constitutional bloc (bloque de Constitucionalidad). Despite the limitations created by the 1991 constitution to states of exception, the prolongation of the armed conflict to the present day (even after the peace accords with the FARC) and the lack of commitment of the military forces to the protection of human rights means that an undeclared state of exception continues, de facto, operating in Colombia. A consequence of such lack of commitment can be seen in the so-called false positives scandal, that took place between 2002 and 2008, in which at least 6,402 people were murdered by the army and falsely declared combat kills.
This undeclared state of exception resulted from the long-standing abuse of this figure enshrined in the previous Constitution and the continuation of Colombia’s armed conflict. One could even speak of a “culture of the state of exception” that would have the status of an unwritten norm that is obeyed by all, and that determines the actions of national, local, military and judicial authorities. This culture of the state of exception has prevented the actual application of the 1991 constitution, especially regarding human rights. That is to say, in alignment with Agamben’s ideas, the state of exception became the permanent and valid norm. An example of such culture can be seen in how four days after the election of Álvaro Uribe as president in 2002, the head of state decreed a State of Internal Commotion in order to put a stop to the rise of the leftist guerrillas. The measure was decreed for 90 days, as the law states, and was extended twice with the legislature’s approval. As recently as 2022, presidential candidate Rodolfo Hernández (who lost against Gustavo Petro in the runoffs) mentioned in his campaign a plan to declare internal commotion from the start of his government, justifying it as a crusade against corruption. Such reasoning would have clearly constituted an abuse of the law, since corruption can hardly be understood as one of the disturbances described by the Constitution.
The new state of things: Police or politics?
If the state of emergency or commotion has historically been in Colombia a measure to manage population and reduce specific sectors to bare life, the recent demonstrations in a way brought to a widespread level the dissatisfaction with such reduction. They became the embodiment of a call for an enriched political subject capable of undoing state repression. When considered from the idea of dissensus, the resistance presented by subalterns or marginalized political subjects discloses performative and emancipatory qualities. Each person who went out to protest from 2019 to 2021 knew in advance the risk of exposing their body to the political violence of the state, the violence legalized by the state of exception. The consequence was a systematic violation of human rights. Faced with the strategy of repression to maintain the status quo, the protest served for those who do not count to make that precariousness visible. When that state of exception created to avert any social outbreak failed and was delegitimized, the fundamental assumptions of the so-called democratic security were blown up, and citizens were empowered. Social protest was a public space that made evident a critical mass of vulnerable subjectivities, vulnerable by the measures taken by the state itself. Given his conception of democracy as a space of dissensus, Rancière argues that considering the citizen as the only political subject who can legitimately demand claims on rights against the state implies the depoliticization of such struggles. As he aﬃrms in “Who Is the Subject of the Rights of Man?”: “These rights are theirs when they can do something with them to construct a dissensus against the denial of the rights they suﬀer” (305 – 306). The subject of the Rights of Man consists of the process of subjectivation through which we become subjects of rights.
The state of exception reduces the participation of citizen subjects to reinforce a regime of order. The state of exception imposes a retaining wall on the tides of social transformation in Colombia to favor pre-established partitions. Maintaining those partitions benefits those who consider themselves citizens in the most static sense of the word. It is worth remembering how Rancière distinguishes police and politics in Dissensus, stating that, in essence, the police is characterized by a vision of society where each group has a way of doing things, places where these actions are carried out, and ways of being that correspond to these actions and places. The police maintain this partition of society without admitting gaps or supplements. Thus, the vision of police society is radically different from that of a political society. The latter, for Rancière, is characterized by disturbing the established partition of the groups by supplementing it with those who inhabit those gaps or supplements that the police do not admit. Politics is an intervention in what is seen and felt in the social assembly and what can be said about it. Protests in Colombia have connected the established assemblages of its social groups with disruptive ways of feeling and seeing related to those who challenge the status quo. Those whose place in the social, political, cultural, ethnic, and economic order of Colombia intervene and disturb how society operates in order to bring about the possibility that their rights may no longer be denied by states of emergency. The 2019-2021 social outburst faced the criminalization of protest and dissent embedded in Colombian military, political, and judicial traditions and intended to revert it. By doing so, it became one of the most vital political forces that might have crystallized in the election of the first leftist government in Colombia’s recent history.
David Vásquez Hurtado, Fort Lewis College.
Carlos Mejía Suarez, Gustavus Adolphus College.
Carlos Gardeazabal Bravo, University of Dayton. 
Agamben, Giorgio. State of Exception. Trans. Kevin Attell. University of Chicago Press, 2005.
Archila Neira, Mauricio. Idas y venidas, vueltas y revueltas: protestas sociales en Colombia 1958 – 1990. Instituto Colombiano de Antropología e Historia, ICANH — Centro de Investigación y Educación Popular, CINEP, 2004. Translated as Social Protests in Colombia: A History, 1958-1990. Lexington Books, 2019.
Comisión Interamericana de Derechos Humanos. “ Informe sobre la situación de los Derechos humanos Humanos en la República de Colombia. ” OEA/Ser.L/V/II.5. 3 doc. 22, June 30, 1981. www.cidh.org/countryrep/colombia81sp/indice.htm.
Colombian Constitution of 1886. Art 121. https://www.funcionpublica.gov.co/eva/gestornormativo/norma.php?i=7153
Colombian Constitution of 1991. Art. 213 and 214. http://www.secretariasenado.gov.co/constitucion-politica
Fundación Comité de Solidaridad con los Presos Políticos (CSPP), May 2021. https://www.comitedesolidaridad.com/
García Villegas, Mauricio. “ Constitucionalismo perverso. Normalidad y anormalidad constitucional en Colombia: 1957 – 1997. ” El caleidoscopio de las justicias en Colombia. Análisis socio-jurídico, edited by Boaventura de Sousa Santos and Mauricio García Villegas. Siglo del Hombre, 2001, pp. 317 – 370.
García Villegas, Mauricio. “Un país de estados de excepción. ” El Espectador, October 10, 2008. www.elespectador.com/politica/un-pais-de-estados-de-excepcion-article-43317/.
Rancière, Jacques. 2010. Dissensus. On politics and aesthetics. Trans. S. Corcoran. New York: Continuum.
Rancière, Jacques. 2004. “Who is the subject of the rights of man?” South Atlantic Quarterly,103: 297–310.
Peñas Felizzola, Aura Helena. “Criminalización de la protesta social en Colombia (1919 – 1936). ” Querétaro 1917 & Weimar 1919: el centenario del constitucionalismo de la democracia social, edited by Bernd Marquardt, David Llinás, and Carlos Pérez. Grupo Editorial Ibáñez, 2019, pp. 339 – 390.
 This text is a product of our work at Colombia Syllabus/Primera línea académica, a crowdsourced digital repository. Co-edited by scholars and activists from different countries, it collects material on the country’s human rights crisis derived from Iván Duque’s government response to the 2021 protests.
 The state of siege according to the article 121 of the 1886 constitution: “In cases of foreign war, or internal commotion, the President may, after hearing the Council of State and with the signature of all the Ministers, declare public order disturbed and the entire Republic in a state of siege. part of her. By means of such a declaration, the President will be invested with the powers conferred by the laws, and, failing that, with those granted by the Law of Nations, to defend the rights of the Nation or repress the uprising.”
 See Mauricio García Villegas ’ “Un país de estados de excepción.”
 According to the article 213 of the 1991 Constitution, “In the event of a serious disturbance of public order that imminently threatens institutional stability, State security, or citizen coexistence, and that cannot be averted through the use of the ordinary powers of the Police authorities , the President of the Republic, with the signature of all the ministers, may declare a State of Internal Commotion, throughout the Republic or part of it, for a term not exceeding ninety days, extendable for up to two equal periods, the second of which requires prior and favorable opinion of the Senate of the Republic.”