DECISION C-699/2016 (December 13). FAST TRACK

In this ruling, the Colombian Constitutional Court established the special legislative procedure to expedite the implementation of the final agreement to end the armed conflict and construct a stable and lasting peace. The Court held that this procedure does not replace the Colombian Constitution. Likewise, the Court specified the criteria according to which the “popular endorsement” should take place.The Court noted that while the constitutional law does not give an explicit and narrow definition of what is to be understood by popular endorsement, after an interpretation that takes into account all the relevant constitutional elements, the popular endorsement that puts Legislative Act No. 1 of 2016 into effect must be (i) a process (ii) with direct citizen participation, (iii)  whose results must be respected, interpreted and developed in good faith, within a search of greater consensus, (iv) this process can be completed by means of a free and deliberative decision taken by a body with democratic authority, (v) without prejudice to further spaces of citizen participation that ensure a “stable and lasting” peace.

In accordance with the aforementioned, there may be popular endorsement with a previous citizen participation, and if this happens people are given the power to order the readjustment of the issues submitted for their consideration. Nonetheless, following the expressions of citizens, it is legitimate that the process may continue and be concluded under the powers granted to one or more regular authorities. When an  authority of this kind (for instance, the Congress) decides, in accordance with the aforementioned principles, that the final agreement followed a process of popular endorsement, then the Legislative Act No. 1 of 2016 will come into force, without prejudice to subsequent constitutional control which will take place when the legislative acts are reviewed by the Constitutional Court. The fact that the decision set out principles to determine the entry into force of the Legislative Act, but it does not establish whether they are verified or not, is due to the fact that to exercise control powers on the aforementioned reform act only two things are required, namely that it has been enacted and that it has any chance of coming into force, but it is not necessary that it is in force.

Regarding to the plaintiff´s claim that the fast track procedure replaced the Colombian Constitution, the Court held that:

1. In the exercise of its power to make reforms, Congress may delegate legislative functions, but within certain limits. These limits were complied with, and here there was no replacement of the principle of the separation of powers.

2. The Article 2 of Legislative Act No. 1 of 2016, confers powers on the President while preserving the general framework of the legislative  functions, and this, then, does not imply a transfer of them. The legislator can claim for dealing with an issue regulated beforehand by decrees having the force of law, since the constitutional reform does not prevent him from doing so. And even the legislator can later amend or revoke the decrees with force of law issued by the Colombian President in this context.

3.The statutory authorisation is limited in time, since it can be exercised for a term of 180 days, and is based on transitional rules introduced in the Constitution. The authorisation covers a narrow scope of the legislative function, namely the content of the Final Agreement to end the armed conflict. Besides, the authorisation may not include the issuance of legislative acts, statutory laws, organic laws, codes, laws that require qualified or absolute majorities for their approval, nor may it be used for imposing taxes, or rules with legal reservations.

4. Finally, the inter-organ controls which preserve the balance between the branches of government, are not abolished because the decrees have an automatic and subsequent constitutional control, and Congress maintains political and legislative control over the Government and the Colombian President (Colombian Constitution, Articles 114, 174 and 178).