Castro's Common Sense EP 013
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Episode 013  ·  Political Analysis  ·  Colombia

Colombia's JEP: Is It Legal, Legitimate, and Should It Exist?

October 2, 2016: What the Ballot Boxes Actually Said

In Colombia's political debate over the JEP, few dates are invoked as often as October 2, 2016. That day, Colombians went to the polls to weigh in on the peace accord signed with the FARC. The result was historic in its narrowness, and its interpretation continues to fuel intense political dispute.

6,431,376 NO Votes 50.21% of total
6,377,482 YES Votes 49.78% of total
53,894 Vote Margin Final difference
62.6% Abstention Of electoral roll

The NO won. Castro is clear on this: in a democracy, a single vote can decide an election, and the 53,894-vote margin was real and legitimate under the established rules. To deny it would be to deny the validity of the democratic process itself.

But it is equally necessary to clarify exactly what was voted on. The plebiscite question was about the peace accord as a whole — not specifically about the JEP or any of its individual mechanisms in isolation. Colombians did not vote "JEP permanently banned" as if it were a specific constitutional article.

The October 2 vote recorded a decision on a text at a specific moment in time. It did not record the full reasoning of each voter. Some voted NO for reasons entirely unrelated to the JEP specifically. After the result, the government renegotiated the accord, and what followed was a sequence of constitutional events:

October 2, 2016
Plebiscite: the NO wins with 50.21% of votes. The original accord is rejected. The government announces it will renegotiate with the FARC.
November 24, 2016
A new renegotiated accord is signed with the FARC, incorporating adjustments. This new accord is not submitted to a second plebiscite.
November 29–30, 2016
The Colombian Congress ratifies the new peace accord through a special legislative procedure, exercising its constitutional powers.
2017
Legislative Act 01 of 2017 creates the JEP and incorporates transitional justice directly into the Constitution. The Constitutional Court upholds it in ruling C-674 of 2017.

"The NO won. And that is clear. In a democracy, a single vote can decide an election."

— George Castro, Castro's Common Sense EP013

"Spurious": Two Different Accusations in One Word

The word "spurious" has become one of the central terms in the debate over the JEP. Those who attack it describe it as a spurious institution, using the word to question its validity at the root. But Castro identifies that this term conceals two completely different accusations that must not be confused.

The first accusation is legal: that the JEP was created without legal authority, that it is unconstitutional, that it has no foundation in the current legal order. This claim is incorrect. The JEP was incorporated into the Constitution through Legislative Act 01 of 2017, reviewed by the Constitutional Court in ruling C-674 of 2017, and upheld by the body with ultimate constitutional authority. Its legality is not debatable in legal terms.

The second accusation is political: that the JEP was created without genuine popular will behind it, that it was born of a process that ignored the 2016 plebiscite result. This is a legitimate political debate. That the new accord was not submitted to a second plebiscite is a fact. That Congress acted with the constitutional powers it held is also a fact. Whether that path was sufficiently democratic is a reasonable, open question.

Four Established Facts About the JEP's Origins
  • 1 The accord submitted to plebiscite on October 2, 2016 was rejected by the Colombians who voted.
  • 2 The NO won legitimately under the democratic rules established for that participation mechanism.
  • 3 What was voted on was the full accord, not an isolated, specific question about the JEP or any other mechanism.
  • 4 The plebiscite was a political participation mechanism, not a direct constitutional reform submitted to citizens by referendum.

"Colombians did not vote 'JEP permanently banned.'"

— George Castro, Castro's Common Sense EP013

Legality vs. Legitimacy: Why They're Not the Same Thing

The central analytical contribution of Castro in this episode is separating three concepts that are routinely conflated in Colombian public debate about the JEP. These are distinct questions with distinct answers, and confusing them produces poor analysis and unproductive debates.

Concept 1
Legality
Does it exist within the legal order?
YES — Established fact
The JEP was created by Legislative Act 01 of 2017, approved by Congress and incorporated directly into the Constitution. The Constitutional Court reviewed and upheld it in ruling C-674. Its constitutional existence is an indisputable legal fact.
Concept 2
Legitimacy of Origin
Did its creation respect popular will?
DEBATABLE — Political question
The original accord was rejected in the plebiscite. The new accord was ratified by Congress without a second popular consultation. Whether that path was sufficiently democratic is a legitimate political question with reasonable arguments on both sides.
Concept 3
Performance Legitimacy
Have results justified the trust and resources?
OPEN — Contemporary question
Has the JEP produced results that justify more than 3 trillion pesos invested since 2018? Has it advanced truth, justice, and reparation? This question demands serious accountability — not automatic defense or attack.

Constitutional legality does not equal immunity from criticism. An institution can be fully legal while facing political questions about its origins or performance. Equally, the fact that an institution is criticizable does not automatically make it illegal or indefensible.

Defending the rule of law does not mean defending all institutions forever exactly as they were created. But reforming them requires doing so through the very channels that the rule of law provides.

"Legality is one thing, legitimacy is another, and popular will is something else entirely."

— George Castro, Castro's Common Sense EP013

The Current Fight: Reform or Dismantling?

With the conceptual questions separated, Castro focuses on the concrete debate Colombia faces right now: are the measures being taken against the JEP a legitimate reform or a dismantlement dressed up as one? The difference matters because it defines whether the rule of law is being exercised or destroyed.

JEP — Alejandro Ramelli
  • 170-billion-peso cut threatens operational viability
  • The cuts could leave the jurisdiction in a state of paralysis
  • Accumulated measures point toward institutional impossibility
  • This is not austerity: it is dismantlement through the budget
Government — De la Espriella
  • It is fiscal austerity applied across all state entities
  • The JEP has received more than 3 trillion pesos since 2018
  • There must be accountability for results produced
  • This is not political retaliation: it is fiscal responsibility

On top of the budget pressure comes Senator Enrique Gómez's legislative proposal to cap the JEP's duration at 10 years maximum, with no possibility of extension. Álvaro Uribe has stated openly: "The JEP should never have been approved."

For Castro, the criterion is not to defend or attack the JEP in the abstract, but to identify whether what is happening corresponds to principled reform or political persecution. He proposes three concrete questions:

The Three Questions That Distinguish Reform from a Political Hunt
  1. 1 Are they demanding results or preventing the JEP from producing them? Demanding accountability is legitimate. Cutting resources in ways that make functioning impossible is something else.
  2. 2 Are they proposing concrete reform or operational impossibility? Reforming rules, timelines, or structures is part of any living institution. Creating conditions that make operation impossible under any rules is dismantlement.
  3. 3 Are they respecting rule-of-law procedures for institutional change? Modifying an institution through constitutional channels is reform. Seeking to neutralize it through extralegal pressure or facts on the ground is something else.

"That balance is precisely what distinguishes reform from revenge."

— George Castro, Castro's Common Sense EP013

The Three Questions Colombia Needs to Answer

Castro closes the episode by noting that the debate over the JEP reveals a deeper tension in Colombian democracy: what happens when popular will, the political process, and the Constitution appear not to say exactly the same thing.

Colombia faces three questions that admit no simple answers: whether the JEP is legal (yes, in constitutional terms), whether it is legitimate in its origin (a genuine political debate), and whether it is legitimate in its practice (a question only results can answer).

The JEP's constitutional legality does not make it immune to criticism. But it also does not make it the object of a dismantlement that sets aside the very rules invoked to question it. Defending the rule of law does not mean defending all institutions forever exactly as they were created. But reforming them demands principle, not revenge.

How Colombia answers these questions — and how clearly it distinguishes between them — will define not just the future of the JEP, but the quality of its own democracy.

"What happens when popular will, politics, and the Constitution don't seem to say exactly the same thing?"

— George Castro, Castro's Common Sense EP013
About this Channel

George Castro is a Colombian-American political analyst, entrepreneur, and one of the most influential figures in the Colombian community in the United States. For decades, he has played a prominent role in civic, business, and community life, bringing together political, diplomatic, institutional, and community leaders from Colombia and the United States while remaining actively involved in issues that matter to Colombians both inside and outside the country.

As the creator of @CastrosCommonSense, Castro brings that experience to a platform for direct and independent analysis of politics, the economy, and the major issues affecting Colombia. His approach seeks to move beyond slogans and partisan loyalties to provide context, judgment, and common sense to Colombians wherever they live.

Frequently Asked Questions

The October 2, 2016 plebiscite asked Colombians whether they supported the peace accord signed with the FARC in its entirety. It was not a question specifically about the JEP or any particular mechanism. The NO won with 6,431,376 votes (50.21%) against 6,377,482 YES votes (49.78%), a margin of just 53,894 votes, with 62.6% abstention.
Yes. The JEP was created through Legislative Act 01 of 2017, approved by the Colombian Congress and incorporated directly into the Constitution. The Constitutional Court subsequently reviewed and upheld it in ruling C-674 of 2017. Its constitutional legality is an established fact, regardless of the political debate surrounding the institution.
The word "spurious" is used to attack the JEP in two distinct ways that are often conflated: first, that it was created illegally or without constitutional authority; second, that it was created without the backing of popular will. Castro clarifies that the first argument is incorrect — the JEP is legally valid — while the second is a legitimate political debate about its legitimacy of origin, given that the original accord was rejected in the plebiscite.
Legality means that an institution exists within the current legal framework: it was created with the required formalities, approved by those with authority to do so, and reviewed constitutionally. Political legitimacy — of origin or in practice — is different: it asks whether the institution enjoys the moral or democratic backing of society. An institution can be fully legal while facing questions about its legitimacy, and that distinction is fundamental to serious analysis.
The transitional justice sector faces a cut of 170 billion pesos in the 2027 budget, a figure that exceeds the 100 billion initially reported. JEP president Alejandro Ramelli has warned that these cuts could leave the jurisdiction operationally paralyzed. President Abelardo de la Espriella's government argues it is fiscal austerity and accountability, noting the JEP has received more than 3 trillion pesos since 2018.
Castro proposes three questions to distinguish reform from political persecution: first, are they demanding results or preventing the JEP from producing them? Second, are they proposing concrete reform or operational impossibility? Third, are they respecting rule-of-law procedures or seeking dismantlement through extralegal means? Legitimate reform demands accountability and institutional improvements; a political hunt seeks paralysis with no possibility of response.