UPDATE: An Introduction to Colombian Governmental Institutions and Primary Legal Sources
By Antonio Ramírez
Update by Hernando Otero
Hernando Otero is an international arbitration and mediation attorney with experience as counsel of record and as an international arbitrator in proceedings pursuant to multilateral and bilateral trade and investment treaties (FTAs and BITs) and commercial agreements. He is an Adjunct Associate Professor of arbitration and mediation at the Washington College of Law in Washington D.C. and a mediator with the District of Columbia Superior Court. He has served as an arbitrator before the World Bank’s International Center for Settlement of Investment Disputes (ICSID) and has been appointed as an international arbitrator by the International Chamber of Commerce’s (ICC) Court of Arbitration. He has appeared as counsel in proceedings under the ICSID Convention, the ICSID Additional Facility and the UNCITRAL Arbitration Rules. He is on the London Court International Arbitration (LCIA) and the Financial Industry Regulatory Authority’s (FINRA) lists of neutrals, and on the Hong Kong International Arbitration Centre’s (HKIAC) Panel of Arbitrators. He is also on the Bogota Chamber of Commerce Arbitration and Conciliation Center’s (CACCCB) closed list of international arbitrators for proceedings seated in Colombia and on its high-amount closed list for local arbitration proceedings. He is licensed to practice law in the state of New York, the District of Columbia, and in Colombia.
Published April 2019
Table of Contents
- 1. Introduction
- 2. Colombia’s Political Organization
- 3. Primary Sources of Colombian Law
- 4. Bibliography of Sources on Colombian Law in English
There are multiple sources that provide an overview of the country and are a very useful starting points, including the following:
- US State Department’s Investment Climate Statements for 2018.
- US State Department’s Country Report on Human Rights Practices.
- The World Bank’s Doing Business Report.
- OECD’s Government at a Glance: Latin America and the Caribbean 2017, report.
The Republic of Colombia is organized as a unitary republic that has administratively decentralized a number of governmental functions and recognizes limited autonomy to subnational governments to administer their own affairs (See Const., arts. 1, 113, 286, 322,). The country is mainly divided into 32 departments and a capital district, Bogotá D.C. Colombia’s central government is made up by the three traditional branches of government and “other organs” that are independent (see below section I.D.).
According to the Constitution the legislative branch (See Const., arts. 112, 132, 138, 171, 176) in Colombia is composed of a national congress that includes both a Senate (Senado) and a House of Representatives (Cámara de Representantes). The Senate is composed of members elected every 4 years through a direct nation-wide vote, 2 members elected by indigenous community electoral districts, and by the candidate that comes in second in the presidential election.
House of Representatives members are also elected for 4-year periods based on electoral districts; 2 for each of 32 departments and the capital city Bogotá and additional members based on population. Additional members are also elected from special electoral districts for indigenous (1), Afro-Colombian (2), and expatriate communities (1). Finally, the vice-presidential candidate of the candidate that comes in second in the presidential election also holds a seat.
In November 2016, Colombia entered into a peace accord with the country’s largest rebel group (Revolutionary Armed Forces of Colombia or FARC) that paves the insurgents’ return to politics. As a result, during the 2018-2022 and 2022-2026 legislatures, the group is entitled to five seats in the Senate and five in the House of representatives.
The 2018-2022 Congress has 108 Senators and 171 representatives. The President’s party is far from holding a majority in either chamber.
Congress meets for two periods during each session: July 20th through November 16th, followed by March 16th-June 20th. The President together with one or more ministers may call special session of Congress. According to the Constitution, Congress’ main functions are to issue national legislation and to exercise political control over the government and the administration (Const., art. 114).
In addition to members of congress, legislative bills (Const., arts. 150-170 and Laws 3, 5 of 1992 as amended) may be initiated by the national government (in some instances exclusively), 30% of departmental deputies or municipal councilors and by public petitions (signed by a number equivalent to 5% of registered voters). The (1) Constitutional Court, (2) Supreme Court, (3) Council of State, (4) Superior Council of Justice Administration, (5) the National Electoral Council, (6) the Attorney General, (7) the National Comptroller, (8) the Inspector General, and (9) the National Ombudsman may also submit bills related to their functions.
Most bills are submitted to the Secretariat of either chamber. Once received, a bill is first published in the Congressional Gazette (Gaceta del Congreso) and then assigned to one of seven standing committees by subject matter. The president of each committee assigns one or more members to act as bill sponsors and present a report to the full committee (also published in the Congressional Gazette). The bill is then debated, potentially amended, voted on and if approved, will be submitted to the plenary of each chamber. The bill is assigned one or more sponsors in the plenary session where again it will be debated. Although there is room for amendments, 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 process in the other chamber. Inconsistencies between texts of a same bill approved by each chamber may be resolved by joint committees and be resubmitted again to each plenary for a vote. In some instances, the standing committees of each chamber may be called upon by the President of the Republic to debate a bill jointly for reasons of urgency.
Once approved by Congress, the bill is submitted to the President who may object to it for reasons of convenience or constitutionality. Objections by reasons of constitutionality are submitted to the Constitutional Court. If both chambers (by simple majority votes) override the President’s objections for reasons of convenience, or if the Court dismisses objections for reasons of constitutionality, the President is required to sanction and promulgate the bill as law. Promulgation of a law takes place by its publication in the Official Gazette (Diario Oficial) and its entry into force takes place at that time or on the date indicated in the statute.
The supreme set of norms is provided by the Constitution. Congress in turn approves statutes (leyes) with varying hierarchy that in all cases must conform to the Constitution. Once enacted, citizens can challenge their constitutionality before the Constitutional Court (Corte Constitucional). The Court’s decisions are definitive and mandatory.
Most statutes are ordinary laws (leyes ordinarias). There are instances (foreign war, internal disturbance or social, economic or environmental emergency) in which the President is temporarily empowered by the Constitution or by Congress to issue decrees with the force of law that are equal to ordinary laws (Decretos Ley o Decretos Legislativos). International treaties duly ratified by Congress also have the status of law. The Constitution expressly provides that international human rights treaties prevail over in the internal legal order (Const., art. 93).
The Constitution grants the President regulatory power to issue decrees (Decretos), resolutions (Resoluciones), directives (Directivas) and orders (Ordenes) that must conform to existing laws (Const., art. 189-11). That power (normally manifested in the form of decrees and resolutions) is exercised through government ministries and agencies. Departmental assemblies and municipal councils also exercise regulatory power within their jurisdictions through Ordinances (Ordenanzas) and Agreements (Acuerdos) respectively that must conform to national norms. Once enacted, national, departmental and municipal administrative norms and conduct can be challenged vis-à-vis their legality before the administrative tribunals, which have the power to annul them (see below).
The President of Colombia is the head of the executive branch (Const., arts. 188-197). The President is elected, together with the Vice-President, by a nationwide, universal, direct, and majority (50% + 1) vote every 4 years (a second round of voting is mandated if a single candidate fails initially to attain a majority). The president may not be reelected. In 2018, a new president was elected.
Pursuant to the Constitution, the president who is also the Head of State and commander-in-chief of the armed forces is called to perform a considerable number of governmental functions. In order to do so, he directs both the central and decentralized levels of the public administration.
The central level of the executive branch currently includes among others organs, the Presidency, the Vice Presidency, 16 ministries and administrative agencies. Ministers and agency heads are appointed by the President and are tasked with setting sectoral policy. The presidency maintains a reliable and useful website. The full list of ministries is the following:
- Ministry of the Interior (Ministerio del Interior)
- Ministry of Foreign Affairs (Ministerio de Relaciones Exteriores)
- Ministry of Finance and Public Credit (Ministerio de Hacienda y Crédito Público).
- Ministry of Justice and Law (Ministerio de Justicia y del Derecho)
- Ministry of National Defense (Ministerio de Defensa Nacional)
- Ministry of Agriculture and Rural Development (Ministerio de Agricultura y Desarrollo Rural)
- Ministry of Health and Social Security (Ministerio de Salud y Protección Social)
- Ministry of Labor (Ministerio del Trabajo)
- Ministry of Mines and Energy (Ministerio de Minas y Energía)
- Ministry of Commerce, Industry, and Tourism (Ministerio de Comercio, Industria y Turismo)
- Ministry of National Education (Ministerio de Educación Nacional)
- Ministry of the Environment and Sustainable Development (Ministerio de Ambiente y Desarrollo Sostenible)
- Ministry of Housing, City and Territory (Ministerio de Vivienda, Ciudad y Territorio)
- Ministry of Information Technologies and Communications (Ministerio de Tecnologías de la Información y las Comunicaciones).
- Ministry of Transportation (Ministerio de Transporte)
- Ministry of Culture (Ministerio de Cultura)
The decentralized level of government encompasses autonomous state agencies and state-owned or controlled enterprises that have been delegated governmental functions in some instances. Particularly with the enactment of the current Constitution in 1991(arts. 1, 209-211), the government has gradually withdrawn from its historical role of service provider by privatizing or liquidating state entities and assets. In others, it has chosen to maintain its regulatory role while unbundling historical State monopolies, opening sectoral markets and competing with private operators through state-owned or controlled enterprises. Some of the more notable decentralized and autonomous government agencies exercising regulatory authority are:
- National Hydrocarbon Agency (Agencia Nacional de Hidrocarburos)
- National Mining Agency (Agencia Nacional de Minería)
- National Agency of Infrastructure (Agencia Nacional de Infraestructura)
- Electricity and Natural Gas Regulatory Commission (Comisión de Regulación de Energía y Gas)
- Potable Water and Basic Sanitation Regulatory Commission (Comisión de Regulación de Agua Potable y Saneamiento Básico
- Telecommunications Regulatory Commission (Comisión de Regulación de Telecomunicaciones)
- Superintendency for Public Utilities (Superintendencia de Servicios Públicos Domiciliarios)
- Financial Superintendency (Superintendencia Financiera)
- Superintendency for Health (Superintendencia Nacional de Salud)
- Superintendency for Companies (Superintendencia de Sociedades)
- Tax and Customs Directorate (Dirección de Aduanas e Impuestos Nacionales – DIAN)
- Superintendency for Industry and Commerce (Superintendencia de Industria y Comercio)
At a subnational level, departments and municipalities are governed by democratically elected governors and majors respectively. Departmental assemblies (deputies) and municipal councils (councilors) issue general and binding rules in their respective jurisdictions but are considered part of the executive branch (See Law 489 of 1998, art. 39).
Colombia’s judicial branch is made up of the State’s high courts — the Constitutional Court (Corte Constitutional), the Supreme Court (Corte Suprema de Justicia), the Council of State (Consejo de Estado), the Superior Council of Justice Administration (Consejo Superior de la Judicatura), the Attorney General’s Office (Fiscalía General de la Nación) and the lower administrative and civil courts.
The Constitutional Court (Corte Constitutional) reviews the constitutionality of enacted laws when challenged before the court by any citizen (ie. no specific cause of action is required). The Court also chooses to ultimately and definitively review lower court decisions resulting from a constitutionally sanctioned legal recourse to protect a person’s constitutional rights (Acción de Tutela). Finally, the Court is also responsible for reviewing the constitutionality of international treaties as a condition for their ratification. The Court’s website has helpful decision indices and search tools in Spanish (see “relatoría”).
The Supreme Court of Justice (Corte Suprema de Justicia) is the highest court for civil (including commercial), criminal and labor disputes. The Court has the power to quash appeal decisions by the Superior Tribunals (Tribunales Superiores) in each judicial district (in turn each judicial district includes municipal courts and circuit courts with jurisdiction based on subject-matter and amount in dispute). The Court is also responsible for the recognition of foreign judgments and arbitral awards (a process known as exequatur). The Court’s website has useful decision search tool in Spanish (see “consulta jurisprudencial”).
The Council of State (Consejo de Estado) is the highest court for disputes arising from administrative conduct or omissions (including those of the Inspector General and Comptroller General). It has the power to annul government decrees, administrative regulations and order the State to pay damages to aggrieved contractual parties. The Court also reviews the appeals decisions of Administrative Tribunals (Tribunales Administrativos).
The Attorney General’s Office (Fiscalía General de la Nación) is an independent institution that investigates and prosecutes criminal conduct both of private individuals and public officials (with some exceptions for high public officials). Together with the Inspector General and the Comptroller General, the Attorney General is frequently called upon to opine on public matters and warn of potential illegal conduct. See Const., arts. 249-253 and other governing norms on its website: “Normativa.”
As a result of the November 2016 peace accord with the rebel group FARC, a transitional justice system was established for crimes committed during the armed conflict before December 1, 2016: Special Jurisdiction for Peace (or JEP) The JEP is expected to operate for a period not to exceed 20 years (A primer on the system provided by the government can be found at Yale law.
The Constitution has granted autonomy to a number of “other organs” that do not belong to the three traditional three branches including the following:
The National Comptroller’s Office (Contraloría General de la República): exercises fiscal control over government accounts and expenditures. The Comptroller General warns of possible detriment to the treasury, audits government entities, and investigates and determines fiscal liability both of private citizens and public officials. Its findings can be annulled by the administrative courts. See Const., arts. 267-8 and other applicable norms on its website: “Información al Ciudadano” - “Normatividad”. A number of subnational comptroller offices (departments and municipalities) control the expenditures of locally generated revenues.
The Office of the Inspector General (Procuraduría General de la Nación): safeguards the administration’s compliance with the Constitution and applicable laws. The Inspector General frequently warns of possible violations, intervenes in judicial process and investigates and determines disciplinary liability by public officials. Liability findings take different forms including the suspension or dismissal of the officials, but the decisions may be annulled by the administrative courts. See Const. art. 277 and other applicable norms on its website: “Info Institucional-Normatividad.” A number of municipal ombudsmen (personeros municipales) exercise local jurisdiction. Together with the National Ombudsman Office (Defensoría del Pueblo), and the local ombudsmen, the Inspector General endeavors to promote and protect human rights.
Central Bank (Banco de la República): is responsible for setting the monetary policy and a number of other functions detailed in a helpful webpage available in English
The authoritative source of Colombian legislation is the National Printing Office’s (Imprenta Nacional) Official Gazette (Diario Oficial), published since 1864. The Senate and the Presidency (see “Normativa”) provide free online legislation databases. The Senate’s website is particularly useful indicating which provisions have been derogated, modified, etc. and relevant jurisprudence. Ministry and agency websites are normally the best source for sectoral or topical regulations (see “Normas” or “Normatividad”). The Ministry of Justice also provides an online searchable database.
Colombia’s legal system is heavily influenced by French, Spanish and Italian legal systems and therefore has a number of “Codes” (Códigos) that bring together a number of provisions for a particular subject matter or area of law. These codes have been enacted by law and therefore have the status of “ordinary laws” (see above). The principal codifications include the following:
- Civil Code (Código Civil, 1887, as amended): The scope and coverage of the Civil Code is broad. It governs contracts, torts, property, obligations, capacity of persons, marriage, divorce, paternity, guardianship, and succession.
- Commercial Code (Código de Comercio, Decree 410 of 1971, as amended): It regulates commercial transactions and entities, negotiable instruments, and bankruptcy. For all matters not resolved by the Commercial Code, the provisions of the Civil Code apply.
- Criminal or Penal Code (Código Penal, Law 599 of 2000, as amended): It establishes criminal offenses punishable by law.
- Code of Criminal Procedure (Código de ProcedimientoPenal, Law 906 of 2004, as amended): It defines the procedures that are to be followed by the Attorney General’s Office and the criminal courts.
- General Code of Procedure (Código General del Proceso, Law 1564 of 2012, as amended): It defines the procedures required to litigate before the civil courts.
The Ministry of Commerce, Industry, and Tourism provides information on commercial and investment agreements to which the country is a party on its website.
The judicial branch’s website has free online databases of judicial decisions. See (“Servicios” – “Consulta de Jurisprudencia - Altas Cortes” and “Consulta de Jurisprudencia - Tribunales Administrativos y Tribunales Superiores.” Each high court website (see above) provides a free online database of its decisions.
The following list of online publications provide an introduction to the legal regime in some areas of international interest.
- The US Commercial Service has a Country Commercial Guide
- The government’s investment promotion agency, ProColombia, and EY have prepared the Legal Guide to Doing Business in Colombia
- PWC publishes Doing Business in Colombia
- Procolombia maintains a website on how to invest in the country
- The OECD has reports on: Colombia’s accession an implementation of the OECD Anti -Bribery Convention, Corporate Governance, The Insurance System, Private Pensions, Competition Law
- The Brookings Institution provides a list of laws and policies on internal displacement
- A report on the infrastructure legal regime authored by the Infrastructure Journal is available from the World Bank
- The Colombian Securities Exchange published a 2016 Colombian Market Profile and Foreign Investor’s Guide
- The World Intellectual Property Organization (WIPO) outlines the country’s intellectual property regime
The following is a list of English language treatises available in US libraries. Though some may be outdated, they provide a useful starting point for topical research.
- Peña, Daniel, Intellectual Property Law in Colombia, Wolters Kluwer Law & Business, 2018.
- Reyes, Francisco, The Colombian simplified corporation a comparative and functional perspective, Editorial Temis 2018.
- Omar E. García-Bolívar, Hernando Otero, eds. “Colombia”, in Recognition and Enforcement of International Commercial Arbitral Awards in Latin America: Law, Practice and Leading Cases, Martinus Nijhoff Publishers, 2014.
- Rincón, Daniel, Energy Law in Colombia, Kluwer Law International 2014.
- “Colombia” in Nations of the world, 2014: a political, economic & business handbook, Grey House Publishing 2014.
- Hudson, Rex A., "Colombia: A Country Study." Library of Congress, 2010.
- Jonathan C. Hamilton, Omar E. García-Bolívar, Hernando Otero, eds. “Colombia”, in Latin American Investment Protections: Comparative Perspectives on Laws, Treaties, and Disputes for Investors, States and Counsel, Martinus Nijhoff Publishers, 2012.