The Constitutional Court made a constitutional study of Law 619 of October 20 of 2000, by means of which Law 141 of 1994, which rules issues related with assessment and payment of royalties, was modified, and distribution criteria and other rules were established.

Colombian Constitution carefully analyses the formation process of the Law, which provides that a project may become Law if it refers to only one subject, that it be filed by a legally designated person and that it should fulfil the pertinent procedures submitted before Congress, to wit:

(i) That it be officially published before the initiation of procedures in the respective commission;

(ii) That it be approved in first debate by the corresponding permanent commission of each Chamber;

(iii) That it be approved in second debate at the plenary session of the respective corporation; and

(iv) That it be sanctioned by the President of the Republic.

The project filed and approved by the Chamber of Representatives, made up of 3 articles and specifically regulating the distribution of royalties in the Colombian State of Sucre, was modified by the Senate, that filed a 23 article project creating a new national royalties regime and modifying the distribution system for the mining and hydrocarbon sectors in Colombia.

Further to the Senate's modification of this project, it was approved by a Conciliation Commission, an organ entrusted with resolving disagreements between the Chambers, throughout the formation process of Law. Subsequently, the project prepared by the mentioned Commission was approved by the plenary session of both chambers.

It is important to note that the Constitution establishes that (i) the Commissions and the plenary session of the Chambers may introduce modifications to a project, and that (ii) disagreements between each of the projects approved by the chambers do not compel the chambers to redo the entire process, taking into account that a Commission may prepare a unified project which may be then approved by the plenary session of both chambers.

Notwithstanding this possibility, the entire project must refer to the same subject and therefore, there is a limit to the competence of the Commission. The Commissions may not introduce subjects not approved by the Chambers or modify articles which may be the object of disagreement between the Chambers.

Regarding the issuance of Law 619, the Court considered that the final project did not receive the four necessary debates in compliance with the Constitution and that the possibility of amending this vice by using the Commission did not exist taking into account that there is no subject unity between the project filed before the Chamber of Representatives and the one filed at the Senate.

As for the pertinent study, the Constitutional Court made special emphasis on the following two consequences that may arise from the principle of instrumentality, by means of which procedural forms do not have a value by themselves but must be interpreted according to a substantive purpose:

(i) That substantial law must prevail over procedural forms; and

(ii) That procedural forms are not irrelevant or may be ignored taking into account that they protect substantive values as well.

Therefore, the flexibility given by the Constitution to the formation process of law does not imply that certain procedural vices may not lead to declaring the law with that vice as unconstitutional. Any breach of a rule related to the formation process of a law has as a consequence the invalidity of the law and its declaration as unconstitutional.

The possibilities of compensation provided by the legal system must be interpreted and exercised in a reasonable way, that is, without denaturalising the notion of legislative procedural vices.

The Court establishes that procedural vices in the formation of law may only be compensated when at least the structural steps of that process are fulfilled, and in this sense, the lack of debate of the project in the Chamber of Representatives is a non corrective vice because its compensation would involve re-doing a fundamental step in the formation process of Law.

Furthermore, there is another non remedial error, that is, that the final version approved by the Senate was never officially filed before Congress, nor did it count with its corresponding "motivation exposition".

Further to concluding that Law 619 of 2000 contained a procedural vice not subject to compensation, the Court studied the effects of the immediate elimination of the Law and the possibility of issuing a postponed unconstitutional judgement.

This type of judgements are those by means of which a constitutional judge verifies that the Law object of control is unconstitutional, but decides not to eliminate it immediately out of the legal system because this removal would create a worst situation, from viewpoint of constitutional principles and values.

These judgments give the legislator a prudential term to correct the alleged unconstitutionality and are justified on the basis that the Constitutional Court protects the integrity of the National Constitution and therefore shall always verify which is the worst scenario for the constitution and act in accordance with that particular scenario.

The Court concluded that the immediate elimination of the accused Law has an important unconstitutional impact because it would leave the new association contracts, without legal regulations, essential to the development of the oil politics of the Colombian State. In this sense, the declaration that Law 619 of 2000 is unconstitutional, negatively affects oil exploration, taking into account the legal insecurity it generates.

To the contrary, maintaining this Law in the legal system is not so harmful, taking into account that even though the court has verified a vice in the formation of the Law, the court has not verified that the material content of the Law causes damage to any of the constitutional clauses.

As a consequence of this study, the Constitutional Court issued a postponed unconstitutional judgement until June 20 of 2002, by means of which it declared that the total Law 619 of 2000 may continue to be temporarily incorporated to the legal system. If, after June 20 of 2002, the legislator has not issued a new Law regulating the issues covered by Law 619, the legal system will be left without regulation regarding these matters with the possible consequences explained above.

 

This report was prepared and is copyrighted in 2001 by PARRA, RODRÍGUEZ & CAVELIER, a law firm with offices in Bogotá, Colombia. The general information herein contained does not constitute legal advice. Transcriptions and quotes are permitted citing the source.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.