On 11 June 2025, Colombian President Gustavo Petro issued Decree 639, calling a national popular consultation on a package of long-stalled social reforms. The decree came after the Senate had explicitly rejected his formal request to hold such a vote – approval that is constitutionally required under Article 104 of the Constitution.

In doing so, Petro positioned himself as a guardian of constitutional order, even while violating one of its core procedural requirements and unilaterally assuming a function reserved for the judiciary. This double encroachment reveals something deeper and more dangerous: an increasingly Schmittian conception of democratic power, in which the president, claiming to represent a unified people, overrides institutional checks in the name of higher constitutional fidelity.

A sovereign beyond constitutional constraints

President Petro’s recent actions are shaped by a conception of power that echoes the constitutional theory of Carl Schmitt: the idea that the sovereign can rise above legal constraints in moments of exception, and that the president is responsible for discerning its will, has been invoked during his administration.

After the Senate denied his request to hold a consultation, Petro insisted that this alleged “spurious” decision could not prevent the sovereign from deciding. Petro’s decree did not merely ignore the Senate; it declared that the way in which the Senate had denied the request was itself unconstitutional, citing several procedural irregularities that, in his view, voided the chamber’s decision. On that basis, the president claimed that, by virtue of the mandate granted to him by the constituent power, he had a duty to protect the Constitution.

In doing so, Petro asserted not just political disagreement but legal superiority. In his telling, the institutional blockade is illegitimate, and the president is duty-bound to remove it in order to restore the constitutional order. This controversial role of the president as a guardian of the Constitution through the disapplication of a Senate vote marks a new phase. It suggests that the executive now claims a quasi-constitutional review power, further consolidating authority not only over the legislature but over constitutional interpretation itself.

This vision expands even further when one looks at the language Petro has used to justify his stance. He often invokes “the people” as a homogeneous, virtuous subject – those committed to his transformative agenda. Critics and dissenters, by contrast, are described not as legitimate participants in democratic debate, but as enemies of reform and, by extension, enemies of the people. Opponents have been publicly labeled as mafiosos, Nazis, vampires or rats. Citizens who protest have been similarly denounced, and the President has categorized them as victimarios – a term that denotes perpetrators of harm. In several of these instances, the judiciary has ordered Petro to issue corrections to these statements.

In Petro’s view, a true representative of the people must heed and follow their voice, and that voice, he argues, takes precedence over institutional considerations. Petro allegedly not only has appealed directly to the people, but also has somewhat identified himself as the interpreter of their will. This framing – of a unified popular will as interpreted by the president versus its internal enemies – corresponds to Schmitt’s own friend-enemy distinction. It collapses pluralism and legitimizes rule by executive decision, not law. It casts institutional disagreement as betrayal and turns constitutional friction into existential conflict. And the President, in this view, would be in charge of interpreting the will of the people and guarding it against formal legality.

The Colombian legal framework

To understand the gravity of the situation, some context is necessary. Colombia’s 1991 Constitution embraces a participatory democratic model that integrates both representative and direct democracy. Citizens elect representatives to deliberate and legislate on their behalf, but they may also participate directly in certain decisions through mechanisms such as referenda, constituent assemblies, and popular consultations. These instruments were designed not to replace representative institutions, but to complement and refine them, especially in contexts where traditional representation may fall short of capturing the complexity of social demands.

Importantly, direct democracy in Colombia is not unbound. It operates within a constitutional framework that subjects it to clear rules and procedural safeguards, precisely to ensure its legitimacy and prevent plebiscitary or populist misuse. Mechanisms like popular consultations must be authorized by the Senate under Article 104 of the Constitution. This authorization is not merely a formal requirement, but rather allows for democratic deliberation over the framing, scope, and timing of such initiatives. Legislative approval helps ensure that direct citizen participation is channeled institutionally, rather than used as a tool to bypass representative democracy altogether.

President Petro initially followed this path when he submitted a formal request to the Senate, which was debated and ultimately denied on 14 May. In response, he then bypassed this decision and issued a decree, asserting that procedural flaws in the Senate’s vote rendered its outcome unconstitutional.

Under Colombian constitutional law, both judges and public officials may exercise what is known as excepción de inconstitucionalidad: the power to disapply sub-constitutional norms when they clearly conflict with the Constitution, but only with inter partes effects. This decentralized model of review, reminiscent of the U.S. system, applies only when the contradiction is manifest. But here, no such contradiction is apparent. The requirement of Senate approval in Article 104 is clear, and the legislative process was followed. More importantly, there is near-unanimous consensus among constitutional scholars from a variety of perspectives as well as among NGOs, that the President cannot unilaterally summon a popular consultation or decide on the validity of the Senate’s decisions (see here, here, here, here, and here).

Amidst this conflict, Petro strikingly declared that he was willing to repeal the decree only if Congress passed a law containing the points he sought to pursue through the consultation. Congress complied, and on 24 June 2025 he repealed the decree. This made the executive’s compliance with the Constitution conditional on legislative acquiescence to presidential priorities – an approach that placed political will above constitutional obligation.

Judicial firewalls

Some days before the decree was repealed, the National Civil Registry (Colombia’s electoral authority in charge of organizing elections and popular consultations) had already announced that it would not move forward with organizing the vote for the popular consultation until the courts rule on the legality of the presidential decree. The Registrar General emphasized that determining the constitutionality of the decree (especially in hard cases such as this one) is a matter for the judiciary, not the electoral authorities. This decision dealt a significant blow to the government’s strategy. In response, the president asserted that the decision was seditious.

With the Registry stepping aside, the responsibility shifted fully to the courts. On 18 June 2025 (prior to the decree’s repeal), the Council of State suspended the effects of the decree while it reaches a final decision on its validity. Petro publicly declared that the ruling was disrespectful to his rights as president, rights that, he claimed, stem from the mandate given by the majority of citizens who voted for him. The Constitutional Court, on its part, may also become involved, particularly if it revisits its prior precedent that allows review only after the consultation has taken place. Collectively, these judicial institutions form a network of constitutional guardians that may prevent the implementation of a decree that bypasses a core procedural safeguard.

Democratic erosion and the prospect of a constituent assembly

This standoff reflects an enduring tension in constitutional theory. It is a clash between two visions: one in which legal form, procedure, and institutional balance generate legitimacy, and another in which the political will of the people – embodied in a single leader – claims the power to override such constraints. The first is a Kelsenian ideal of legality (see here, pp. 197 and 221-224), the second is Schmittian sovereignty. While both logics may coexist, moments of crisis tend to push constitutional actors toward the latter, particularly in Latin America where hyper-presidentialism remains a pervasive feature of political systems (see here).

Although the government succeeded in enacting the law that contained the points originally meant for public consultation, Petro’s Minister of Justice, Eduardo Montealegre, continues to champion the Schmittian approach arguing that Colombia’s institutional “blockade” justifies convening a constituent assembly, once again, without congressional approval. He suggests that institutional obstruction warrants radical change. Petro, on his part, has endorsed this view and proposed that the people decide – through a popular vote held alongside the next general elections, presumably in 2026 – whether to initiate the process.

Nevertheless, this reasoning not only stretches constitutional rules; it also disregards explicit constitutional mandates once more. Article 376 of the Constitution states that a constituent assembly can only be convened with prior approval from Congress. To ignore this requirement is not transformative: it is legally insubordinate.

This sequence of actions does not amount to a coup or dictatorship. But it does illustrate what scholars call democratic erosion: the slow but persistent undermining of institutional checks, constitutional norms, and the legitimacy of opposition.

Unwritten conventions and executive power

In presidential systems like Colombia’s, where the executive already wields substantial authority, informal constitutional conventions play a vital role. These are unwritten norms of institutional restraint, such as deference to legislative decisions, procedural loyalty, and political tolerance.

Petro’s strategy threatens to dismantle these conventions. By treating the Senate’s decision not merely as wrong but legally void, he signals that institutional disagreement will not be tolerated. His claim that he must protect the Constitution by disregarding a constitutional procedure effectively redefines constitutionalism as alignment with presidential goals. This logic also underpins his decision to call for a popular vote on whether to convene a constituent assembly (again, without congressional approval), despite the clear requirement of Article 376 to the contrary.

In the long run, this thinking expands executive authority – within an already hyper-presidential regime that the Constitutional Court has strived to tame in the past – at the expense of democratic pluralism and legal predictability.

What hangs in the balance

Colombia is not facing immediate authoritarian collapse. Its courts remain operational, elections are competitive, and Congress continues to function. But the country is confronting a serious institutional rupture – one that tests the integrity of its constitutional framework.

President Petro’s move is a repudiation of the Constitution’s core, that is, a claim that legality must yield to presidentially defined legitimacy. And it is a warning sign that an already powerful presidency may be sliding toward discretionary sovereign rule.

Whether this moment accelerates or contains Colombia’s democratic backsliding will depend on how electoral authorities, judges, and civil society respond. At stake is not only the future of Petro’s agenda, but the future of constitutionalism in one of Latin America’s most vibrant constitutional democracies.

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