The regulation for the election of the 16 representatives to the Chamber by the Special Transitory Circumscriptions of Peace, which was regulated by the previous government via decree, COULD fall. The Constitutional Court plans to make a decision today on a lawsuit against this administrative act, since for the plaintiff and even the Attorney General’s Office, it should have been done by means of a statutory law.
On October 5, 2021, Decree 1207 was issued, whereby provisions were adopted for the election of representatives to the Chamber for the 16 Special Transitory Circumscriptions for Peace for the periods 2022-2026 and 2026-2030. This administrative act has the signature of the then president Iván Duque and all the ministers.
The then President Duque indicated on that occasion that “I announce that the decree has been signed through which these seats are regulated for the victims, with all the safeguards, with all the protections and so that they can have their presence in the Congress of Colombia and assert their rights”.
These constituencies were created to comply with point 2.3.6. of the 2016 Peace Agreement signed by the then FARC guerrilla with the government of Juan Manuel Santos, in this regard to give representation in Congress to the victims of the 16 most affected territories in the country by the armed conflict.
In accordance with the regulation established in Decree 1207, the 16 representatives of the victims were elected in the March 2022 elections, who occupy a seat in the current Congress.
In the legislative elections of the year 2026, the 16 Special Transitory Circumscriptions for Peace will be elected for the second and last time, however, it depends on the decision made by the Constitutional Court if at that time the process will be developed based on Decree 1207 of 2021 or, if it is overthrown by the High Court because it is considered unenforceable, by a statutory law that the national government promotes in the coming months or by parliamentary initiative.
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The representation of the victims in Congress should have been elected in the 2018 elections, however, this did not happen because in 2017 the plenary session of the Senate sank the conciliation (after 8 debates) of the draft legislative act that created 16 seats in the Chamber, considering that the 50 votes in favor did not achieve a majority.
However, in May 2021, the Constitutional Court revived this project, since in a vote of 5 to 3 it considered that with 50 votes in favor it was approved in the plenary session of the Senate, because three senators could not be counted for the quorum who for the time were suspended.
From that moment on, a race against time began so that the 16 peace constituencies could be elected in the parliamentary elections in March 2022.
Despite the pressure of time, it was not until August 2, 2021 that the presidents of the Senate and the Chamber signed the respective constitutional reform. On the 21st of that month, then President Duque ordered the Minister of the Interior to promulgate the 16 peace seats, which became effective four days later, when Legislative Act 02 entered into force.
From that moment on, the government of that time had 7 months before the legislative elections to promote a statutory bill that would regulate the election of the victims’ representatives; However, the problem was that registration for those elections closed on December 13, 2021.
For this reason, the Duque administration decided to issue a decree regulating the entire process, the same administrative act that today is reeling in the Constitutional Court.
It is striking that the Petro government, which has been so critical of the previous administration and its decisions, defended the legality of Decree 1207 of October 2021.
This was the case in a communication sent by the Ministry of Justice on January 18 to magistrate José Fernando Reyes, substantiator of the lawsuit against the aforementioned Decree, in which he requests that it be declared enforceable.
The Ministry of Justice points out in said communication that “the Decree revised on this occasion enjoys the material force of law, since it is a norm that directly develops Legislative Act 02 of 2021, which assigned the national Government the task of regulation thereof”.
In addition, it adds that “article 2 of Legislative Act 01 of 2016 empowered the President of the Republic to issue decrees with the force of law that facilitate and ensure the implementation and regulatory development of what was agreed in the Final Peace Agreement with the FARC ”.
Concept of the Attorney
The Attorney General of the Nation, Margarita Cabello Blanco, pointed out that the regulation of the peace seats must be done through a statutory law and, in this way, have prior control by the Constitutional Court.
This was indicated by the head of the Public Prosecutor’s Office in a concept rendered before that Court, in which she warned that the regulation of electoral matters is reserved by statutory law and, therefore, is subject to prior constitutionality control.
The foregoing, to prevent the branches of public power, whose holders arise from the popular vote, from using their regulatory powers in order to eliminate or unduly restrict the political rights of citizens.
For this reason, he maintained that the Congress of the Republic must issue a new law that regulates the peace seats for the elections scheduled for the year 2026, since the decree law adopted on October 5, 2021 by the National Government to regulate said elections It is unconstitutional, for not having been subject to prior control.
The attorney recalled that, according to constitutional jurisprudence, the prior control of decrees of a statutory nature, which by mandate of a legislative act can be issued by the National Government to regulate elections, is of the utmost importance, since it serves as a containment mechanism for avoid that “it can alter for its own benefit the norms that regulate the electoral function to ignore the rights of minorities.”
He specified that the effects of the unconstitutionality of Decree 1207 of 2021 should apply to the future, since “during the validity of the norm, the election of representatives to the Chamber for the 16 Special Transitory Districts for Peace for the period 2022-2026 was brought forward. , whose results must be safeguarded by virtue of the principle of legal certainty”.