After several months of questioning and two days of debates on the dynamics through which the new legislature will be governed, the Court declared Article 12 of Legislative Decree 491 of 2020 unconstitutional, through which President Iván Duque authorized the three branches of public power to deliberate and make decisions virtually, within the framework of the Health Emergency due to Covid-19.
The decree that was the focus of the discussion states in one of its articles “non-face-to-face meetings of collegial bodies of the branches of public power. Notwithstanding the provisions contained in current regulations, collegial bodies, corporations, chambers, boards, or councils, of all branches of public power and at all territorial levels, may hold non-face-to-face sessions when, by any means, their members can deliberate and decide through simultaneous or successive communication.
With that in mind, the Court's legal debate focused on whether this legislative decree could amend Law 5 of Congress (organic) and the Constitution, which establish the rules and functions of the legislature, and whether political control debates and discussions of bills through virtual platforms meet constitutional conditions and make room for minorities and the opposition.
After an intense debate among congressmen, legal experts knowledgeable in the matter, and the general public, we explain the scope of the measure:
What are the effects of the decision?
Despite widespread concern about the fate of bills passed in virtual sessions, the Court clarified that decisions made under Decree 491 are not invalidated by the decision to declare Article 14 unconstitutional. The argument is that, at that time, congressmen presumed the legality of the norm.
The sentence will only take effect in the future, or in other words, Congress will have to regulate itself, if its will is to continue meeting remotely.
In principle, it is not true that Congress is prohibited from meeting virtually; the issue is how such a modality is regulated (again, the same body must establish its own regulations). That is why the high courts have modified their internal regulations and their acts are not invalid.
What are the public opinion stances?
For some recognized lawyers, such as Iván Cancino or Francisco Bernate, the decision should also have effects on everything approved virtually. Cancino stated that the unconstitutionality of a rule only for the future makes no sense.
The outgoing Speaker of the House, Carlos Cuenca, said that the Court had not taken into account that they met autonomously thanks to a resolution issued by the presiding boards. The President of the Senate, Lidio García, said that he accepted the decision and that the Court had ratified the legality of the virtual sessions.
What will happen on July 20th?
The scenario offers no clarity, and the only information known about the decision is the press release from the Constitutional Court and some statements by President Alberto Rojas. The only certainty is that Congress must convene, virtually or in person, to inaugurate the legislative session that begins this July 20th and elect the presiding officers of its boards. Subsequently, the legislature must vote on the slates of candidates to elect the Attorney General (in the Senate), the Ombudsman (in the Chamber), and a Constitutional Court Justice.
Faced with the national legislative landscape, and taking into account that several representatives and senators have tested positive for Covid-19, expectations remain high regarding the return to in-person sessions and its implication for the health stability of parliament, or the continuation of virtual sessions. If the latter scenario is maintained, doubts continue about How would secret ballots be implemented in the upcoming elections?