An Introduction to Colombian Governmental Institutions and Primary Legal Sources
by Antonio Ramirez
Antonio Ramirez received his law degrees from the Universidad Católica Andres Bello (Venezuela) and Duke University Law School, and a library science degree from St. John´s University (U.S.A.). He currently works as a reference librarian at the St. John´s University Law School Library. Previous working experience includes years of service at the Attorney General Office in Venezuela, New York University Law School Library, and Columbia University Law School Library. He also works as freelance translator of legal materials.
Published May 2007
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Table of Contents
The Republic of Colombia is a unitary republic comprising 32 departments, and one capital district. Since Colombia adopts the representative, republican, and democratic form of government, it is governed by representatives of the people, who are elected through direct vote. The country embraces a system made up of governmental powers (mainly an Executive Power, a Legislative Power, and a Judicial Power), and also has a written Constitution.
The Constitution is the source and origin of all Colombian laws and it overrides them all. There have been relatively few constitutions since the country finally became an independent nation in 1830. The first constitutions (promulgated in 1832, 1853, and 1858) recognized a degree of local autonomy, but after the civil war of 1885, the 1886 charter firmly established the unitary form of government. This constitution underwent major amendments in 1910, 1936, 1945, and 1968. Finally, in 1991 a new charter was promulgated; it has also been amended virtually every year until 2005.
The 1991 Constitution is divided into thirteen sequential titles (subdivided into chapters and articles) devoted to the political organization of the country and the formal acknowledgment of liberties and freedoms. Full recognition is given to basic principles, such as the preeminence of human rights, national sovereignty, division of powers, and the representative system. The Constitution also has transitory provisions.
Brief descriptions of the three branches of the government:
The Executive power dominates the other branches of government and is vested mainly in the President, the Vice-President, the Ministers, and the directors of administrative agencies.
Under the 1991 Constitution, the President is elected by a majority (more than 50%) vote with direct and universal suffrage (a second round takes place if no presidential candidate obtains a majority). The President (both head of government and chief of state) is in charge of the general administration of the country and the protection of the National State interests, and is also the Commander-in-Chief of all the Armed Forces. The President is also empowered to direct foreign relations of the State, to declare a state of emergency and suspend liberties, and to convene extraordinary sessions of Congress. The term of office is 4 years, and the President may be re-elected to a single consecutive term.
The President appoints the Ministers and directors of administrative agencies. In the administrative area, the President is officially empowered to organize public credit, recognize national debt and arrange its service, and regulate international exchange and foreign commerce, customs duties, tariffs, and charges. Exercise of these powers, however, is subordinate to laws passed by Congress.
The Vice-President is elected along with the president by popular vote for a four-year term (eligible for a second term). No specific function is constitutionally assigned to the Vice-President who is, nonetheless, empowered to succeed to the Presidency on the death, incapacity, resignation or removal of the President.
Ministers are in charge of Ministries (devoted to domestic affairs and justice, foreign affairs, defense, finance, education, energy, commerce and industry, culture, environment, communications, transportation, agriculture, and social welfare). Ministers endorse and authenticate, by virtue of their signatures, certain presidential actions that would not be effective otherwise. As head of a ministry and a member of the cabinet, a minister holds a position that is simultaneously administrative and political. The most important function of the Ministers and directors of administrative agencies are to set national policy in all areas of governmental activity.
An important task of the President and Ministers is to issue regulations (reglamentos) to specific laws. The approval of these regulations requires that the President and one or more Ministers act jointly. Individually, the President may issue decrees (decretos) on any governmental activity and the Ministers may issue resolutions (resoluciones) regarding specific topics of their competence. Whether it is a regulation, a decree or a resolution, the instrument must be published (along with the most important documentation from the executive branch) in the official journal (Diario Oficial) before it becomes binding.
Legislative power is vested in a bicameral Congress composed of a Senate (Senado) and a House of Representatives (Camara de Representantes). Senators and representatives are elected by direct popular vote for four years. Legislative sessions begin annually on Independence Day (July 20). A special session may be called in by the Executive.
For election purposes, the country is divided into districts and each district elects its members roughly proportional to their population. Each department is considered an electoral district and elects at least two representatives. Others are added to each district on the basis of population numbers. Up to five additional house seats will be reserved for ethnic groups, political minorities, and Colombians residing abroad. Currently, there are 166 seats in the House.
There are a constitutionally established number of 100 seats in the Senate and 2 more have been added in representation of indigenous communities. Each senator represents the entire country (rather than just one department).
Besides its legislative tasks, the House has budgetary responsibilities; it is also empowered to elect the General Ombudsman (Defensor del Pueblo) or to indict the President and other high officers, and to handle complaints submitted by the Prosecutor General (Fiscal General) and individual citizens against high officers. The Senate has exclusive powers vis-à-vis military promotions, presidential licenses, declaration of war, appointments of members of the Constitutional Court and the Attorney General, and eventual trials of the President and other high officers.
The law-making process is comprised of seven steps: initiative, debate (by each chamber of Congress), voting, passing, sanction, enactment, and publication.
Legislation on any subject can be initiated by: (1) the National Executive Power through the ministers, (2) members of Congress, and (3) a number at least equivalent to 15% of councilors or 5% of all permanently registered voters signing a public petition.
Legislation on matters related to their respective functions may be initiated by: (1) the Constitutional Court, (2) the Supreme Court, (3) the Council of State, (4) the Superior Judicial Council, (5) the National Electoral Council, (6) the Attorney General, (7) the Comptroller General, (8) the Prosecutor General, and (9) the Defender of the People.
Bills are submitted to the office of the secretary general of either chamber or to members of either chamber meeting in plenary session. A number is assigned to them before submission to a technical, material, and formal analysis by a standing committee of the chamber where the bill was introduced. Bills are distributed among the committees according to subject matter. Each chamber counts with 7 standing committees specializing in different fields: internal affairs, foreign affairs, finance, agriculture and environment, communications, labor, and education and culture. Bills are sent at this point to the government printing office for publication in the congressional gazette (Gaceta del Congreso).
Members of the committee in charge of the bill will then submit a report (also published in the congressional gazette) to the full committee. If the bill survives debates within the committee, it will be sent for a general or article by article discussion in a plenary session of the chamber. Although there is room for modifications, the chamber may decide to send the bill back to the committee whenever its text becomes significantly different from the one originally submitted.
Once the bill is approved by one chamber, it will undergo the same treatment by the pertinent standing committee and plenary sessions of the other chamber.
The President has a number of days (which varies on the basis of the length of the statute) to sanction or promulgate any bill approved by both chambers, propose amendments to it or ask for a reconsideration of any of its provisions. The President may ask Congress to reconsider any statute (or parts of it) found objectionable. If both chambers (by simple majority votes) override the president’s objections, the bill becomes law. The only exception occurs when the President’s objection is based upon a charge of unconstitutionality; in that case, upon Congress’ request, the Constitutional Court has six days to make a ruling. If the court rejects the President’s charge, the law is enacted.
The publication in the official journal (Diario Oficial), together with the enforcement order (“cúmplase”) issued by the National Executive, is the last step in the process. The laws become mandatory as of the date of their publication in the Diario Oficial, or at a date indicated in the respective text.
A special procedure is required for constitutional reforms. The Colombian Constitution is considered a “rigid” one because of the strict conditions imposed to modify it. The purpose of a constitutional reform is to effect a partial revision of the Constitution and a replacement of one or more of its provisions, without modifying the fundamental principles and structure of the constitutional text.
The initiative for a constitutional reform may proceed from one of the following: 1) the executive, 2) ten members of Congress, 3) a number equivalent to 20% of councilors, or 4) registered voters through a request of at least 5% of the total number registered with the electoral council.
Constitutional reform bills must be processed in two ordinary and consecutive terms. The final bill approval requires a majority vote in both chambers. Once approved, the bill may be submitted to a popular vote in order to determine if a constitutional assembly will be organized. A positive vote of a third of registered voters will be sufficient to call the convention. The assembly members will be elected by direct vote in a separate election. If approved by Congress, any constitutional reform bill related to fundamental rights and freedoms will be submitted to a referendum upon request of a number equivalent to 5% of all registered voters and adopted whenever the majority vote is affirmative, provided the actual number of cast votes represents at least 25% of all registered voters.
The hierarchy of Colombian norms is fairly typical of civil law jurisdictions. The supreme set of norms is the Constitution. Under this scheme, Congress should pass the laws or statutes (leyes) with an internal hierarchy: Most statutes are ordinary acts or ordinary laws (leyes ordinarias). These are common laws, in the essential meaning of the word, originating from Congress, in exercise of its primary legislating function. They deal with all subjects, except those which will be specifically dealt with by other categories of laws. Approval requires the vote of a simple majority, and sanction by the President of the Republic. Of equal hierarchy are the enabling laws (leyes habilitantes) from which decrees with the rank and force of law (decretos con fuerza de ley or “d.f.l.”) or delegated laws emerge. At a higher level are organic acts or charter or organic laws (leyes orgánicas) and statutory laws.
Enabling laws (leyes habilitantes) are those enacted by an absolute majority of the membership of both chambers to establish the guidelines, purposes and framework for matters that are being delegated to the President, so that decrees with the rank and force of law may be issued. Congress may thus delegate the power to set norms with the status of law upon the President’s request when public necessity or convenience advises it for a period of up to six months. These decrees are issued by the President by means of that delegation of competence from Congress. The President (the delegate) would not normally have competence to sanction that law, but has acquired the power to do so. Most of these decrees deal with economic or fiscal regulation, support and control of enterprises, scarcity of natural resources, and politically related issues; the decrees may not be used to enact codes or organic laws, or to levy taxes. At all times and on its own initiative, the Congress may amend the decrees issued by the Executive while using its extraordinary powers.
Organic laws are those regulating the exercise of legislative activity to establish the internal rules of Congress and of each chamber, concerning the preparation, approval, and execution of the Budgetary Revenues and Appropriations Law, the execution of the general development plan and the regulations concerning the assignment of regulatory responsibilities to the territorial entities. The enactment of organic laws will require an absolute majority vote in both chambers.
Statutory laws are enacted by Congress to regulate the following subject areas: (1) fundamental rights and duties of individuals and the procedures and actions for their protection; (2) administration of justice; (3) organization and regulations of parties and political movements, guarantees for the opposition, and electoral functions; (4) institutions and machinery of citizens' participation; and (5) states of exception. The approval, amendment, or repeal of statutory laws also requires an absolute majority vote in both chambers and must be completed within a single legislative term. The procedure will include the Constitutional Court’s review of the viability of the bill. Any citizen may intervene in defense or opposition to the bill.
The Colombian court system is headed by four roughly coequal, supreme judicial organs:
The lower court system consists of: (1) ordinary courts with jurisdiction over civil, family, labor, land, commercial and criminal cases; (2) administrative courts with jurisdiction over administrative matters; (3) courts with peace jurisdiction (over minor criminal and civil matters); and (4) authorities of indigenous territories with jurisdiction on indigenous communities.
The ordinary courts include trial courts with jurisdiction in civil, criminal, labor, family, land among other specialized areas; and superior district courts, which decide appeals from judges of judicial districts and circuit judges, and have original jurisdiction over special matters in which the Government and the departments are parties.
The departmental administrative courts hear cases regarding departmental ordinances, municipal resolutions, decisions of departmental and municipal executives; tax matters; etc.
Four entities have a crucial role to play vis-à-vis adherence to the rule of law by governmental officials at all levels and, for that purpose, are charged with preventing, investigating, and punishing administrative irregularities.
The Office of the Prosecutor General (Fiscalia General de la Nacion) is an autonomous and hierarchical organization. Although it belongs to the judicial branch, the 1991 Constitution confers upon it an independent role so that it can better perform its functions. It is headed by the Prosecutor General of the Republic (“Fiscal General”), who is charged mainly with prosecuting crimes and representing the people’s interests in those cases in which no initiative on the part of a party is required to start or continue such prosecution. The Prosecutor General is designated for a four-year term by the Supreme Court which selects one of the three candidates presented by the President
The Office of the Attorney General (Procuraduria General de la Nacion) is appointed by the Senate from a list of candidates selected by the President and the highest courts, the Attorney General acts as guardian of constitutional rights and liberties, democratic principles, public interests, and the rule of law in general. The Attorney General shall also file any appropriate action to hold liable public officials who have incurred civil, labor, military, criminal, administrative or disciplinary liability in the course of their official duties.
The Office of the Defender of the People (Defensoria del Pueblo) is an independent body whose mission is to defend and protect human rights and other liberties and interests protected under the Constitution and the laws, in the face of deeds, acts or omissions of the administration. The Defender of the People is appointed for a four-year term by Congress which selects one of the three candidates presented by the President.
The Office of the Comptroller General (Contraloria General de la Republica) is headed by a Comptroller General appointed for a four-year period at the beginning of each presidential term by Congress, which selects one of the three candidates presented by the highest courts. This officer shall be in charge of supervising the management and auditing of revenues, expenses, public and national property and transactions of the centralized and decentralized public entities, whatever its forms of organization may be, as well as of other branches of government. It enjoys operating, administrative and functional autonomy. It does not co-administer the public sector; it assesses facts, acts, and documents only after the organizations to be audited have finished their accounting exercises. Its main task is the approval or rejection of the revenue and investment accounts of public funds, the opening of investigations into irregularities, and the application of measures and administrative penalties as appropriate. The Comptroller General shall call on the Prosecutor General to file the legal actions that may apply.
Colombia's legal system has a legislative origin, grounded on the "written law" as opposed to the "common" or "judicial" law, which is the basis for American, English and Canadian legal systems. Being Colombia a civil law jurisdiction, its legal system has its roots in Roman Law and is heavily influenced by the French (Napoleonic Code) system and the Italian and Spanish legal traditions, which established written codification of its laws. As systematic sets of rules pertaining to specific subject-matters, Codes thus emerged not long after the country became an independent nation. The first civil and penal codes appeared in 1873. 1887 was the year of enactment of the first commercial, judicial (procedure), and mining codes.
As their models changed, all these codes underwent reforms throughout the twentieth century. Unfortunately, they have not always benefited from the developments occurring in Europe. A major revision of the Civil Code is still intensely needed. The Commercial Code is also deficient insofar as its drafting, for the most part, has not embraced new ideas concerning business entities and entrepreneurial activity. Code modernization has been more successful vis-à-vis procedure and criminal law. The changes have been more significant and responsive to social needs in those areas, as recent code amendments attest.
Nowadays, the principal Colombian codifications are the following:
· Civil Code (1873, as amended); The scope and coverage of the Civil Code are extremely broad. It governs contracts, torts, property, obligations, capacity of persons, marriage, divorce, paternity, guardianship, secured transactions, and succession.
· Commercial Code (1971); It regulates commercial transactions and entities, negotiable instruments, and bankruptcy.
· Criminal Code or Penal Code (2000); It establishes criminal offenses punishable by law.
· Code of Criminal Procedure (2004); It defines the procedures that are to be followed before the criminal courts.
· Code of Civil Procedure (1970); It defines the procedures required to litigate before the civil courts.
Of particular importance to business is the Commercial Code. For all matters not resolved by the Commercial Code, the provisions of the Civil Code shall be applied.
Colombian codification has expanded beyond the traditional areas (civil, criminal, commercial, and procedure) to cover a wide range of subjects (child protection, national police, administrative procedure, etc.) A complete list of and internet access to the Colombian codes is available online.
As a rule, codes are organized into books, titles, chapters, articles, and sections. Titles are subdivided into chapters, which are sequential within their respective title only. Chapters are further subdivided into articles, which are sequential throughout the code. Each article in the code gets a unique number. All one needs to find a particular article is its number, and not the book, title and chapter numbers.
The quintessential source of Colombian legislation (in the broadest sense of the word) is the Diario Oficial, an official journal published since 1864. It is a publication of the National Printing Office (Imprenta Nacional), which makes it also available in CD format. Regular issues are released daily (except Saturdays, Sundays, and holidays). Laws are identified according to a numbering system beginning every year from one.
Official chronological compilations of historical value are, among others, the following:
· Laws enacted by the Constitutional Congress of the Republic of Colombia (Las leyes dadas por el Congreso Constitutional de la Republica de Colombia), which collects enacted in the 1820’s.
· Laws enacted by the Constitutional Convention of the State of Nueva Granada (Leyes dadas por la Convencion Constituyente del Estado de la Nueva Granada), which contains the texts of laws enacted from the late1820’s to 1837;
· Laws and decrees issued by the Constitutional Congress of Nueva Granada (Leyes i decretos expedidos por el Congreso Constitucional de la Nueva Granada), which contains laws enacted from 1837 to 1860;
· Official Acts of the Provisional government of the United States of Colombia (Actos Oficiales del Gobierno Provisorio de los Estados Unidos de Colombia), which collects laws enacted in 1861 and 1862.
Other Web sites providing access to (general or special) legislation are:
A good number of Colombian codes and laws have been translated into English. Most of them are available in print. A defunct serial (entitled Legal Bulletin; Bogotá, Colombia: Ediciones Juan Caro & Asociados), consisting of 37 volumes published between 1963 and 1999, specialized in translations of legal materials into English.
A partial list follows:
A few items are available on line for free:
· An unofficial translation of the Constitution is available through the Web site of Constitution Finder/University of Richmond
· Copyright law (1982)
A few words about the value of jurisprudence in Colombia are in order.
In Colombia, codification has not allowed case law to reach the same recognition it has within the Common Law system. An act or statute that contradicts a judgment may render it useless, and that legal provision is considered mandatory, as long as judges do not believe that it violates the Constitution,. The role of case law is thus minimized by the tradition of codification and regulation and limited to fill in legislative blanks.
Although the three Colombian highest courts are considered the supreme interpreters of the Constitution and laws arising thereof, their decisions are not mandatory for similar cases. Even when judging similar cases, lower courts, by virtue of their autonomy, may set aside the highest courts’ doctrine, without infringing the Constitution. That dismissal, however, shall not be arbitrary or groundless because although judges only decide the specific cases assigned to them, they must provide new arguments justifying the disagreement with the highest courts’ decisions in analogous instances.
Vis-à-vis the reporting system, since 1887 all the Supreme Court’s decisions have been officially published in the Gaceta Judicial, and since 1915 those of the Council of State are published in the Anales del Consejo de Estado. The Constitutional Court has its own monthly gazette entitled Gaceta de la Corte Constitucional, which collects its rulings since it started operating in 1992; there is also a semestral compilation entitled Gaceta Constitucional. A privately published monthly serial entitled Foro Colombiano specializes in the highest courts’ case law.
There is no comprehensive (official or unofficial) regular publication of lower court opinions. Another privately published monthly serial, Derecho Colombiano, features selections of lower court decisions. Some departments have their own judicial reviews (revistas judiciales), which include the most important decisions of their courts.
The official Web sites of the Colombian judiciary and the Senate (check under jurisprudencia) provide access to the highest courts’ opinions (including most decisions from the 90s and some from the 80s, the 70s, and even the 60s).
This commercial Web site offers access to the highest court opinions to paying subscribers.
As stated above, the publication in the Diario Oficial is a prerequisite to the enforcement of any regulatory instrument in Colombia. The most important decrees and regulations on different subjects are also available in specialized commercial publications.
Of course, the internet is quickly becoming the medium of choice for the dissemination of these materials. The web site of the Presidency features a presidential decree and directive database (including decrees and regulations issued from January 1990 on and directives from 1998 on).
Since Congress regulates all areas of public administration, ministries and other agencies lack rulemaking power. As stated above, however, Ministries do issue resolutions on the matters of their competence. Each homepage of a Ministry site offers links to bodies of its own structure and to others which deal with the same subject. A good number of these sites offers access to statutes, regulations, and resolutions in their respective specialties. The following is a list of those ministries currently offering access to those items:
Although this brief guide has been devoted mainly to primary sources of legal information, it will conclude with a short list of titles representative of the literature on Colombian law in English. Although some of them are apparently outdated, they are still worth consulting because of the quality of the analysis and their value as providers of an overview of the legal system (even today).
Among the articles and notes on Colombian law published in American law reviews and journals in recent years, the following are worthy of mention: