The public consultation announced by the government is unconstitutional.

The call for a national popular consultation initiated by the government without prior favorable opinion from the Senate of the Republic (i) is unconstitutional, (ii) constitutes usurpation of jurisdictional functions to decide on the validity of the decision adopted by the Senate, and (iii) constitutes the crimes of abuse of power and unlawful exercise of public office by the president and the ministers who sign the call.

It is unconstitutional

National popular consultations initiated by the government always require, without any exception, a prior and favorable opinion from the Senate of the Republic regarding the advisability of their call.

In fact, according to Article 104 of the Constitution, the president of the Republic can only call a popular consultation on decisions of national importance upon fulfilling two irreplaceable requirements: (i) the signature of all ministers, and (ii) prior favorable opinion from the Senate of the Republic.

The statutory legislator, when regulating the institutions and mechanisms of citizen participation, establishes that calling and carrying out a national popular consultation requires prior opinion from the Senate, and that this body must pronounce on the advisability of the call within one month of the presentation of the request by the president with the signature of all ministers.

When examining the constitutionality of this provision, the Court stated in Judgment C-150 of 2015 that “The intervention of the Senate of the Republic in the case of national popular consultations is expressly provided for in Article 104 of the Constitution,” and that the normative content regarding the term for pronouncing on the advisability of the call is fully compatible with the Constitution as it merely establishes, under the legislative freedom that Congress has in this matter, a term for the prior opinion of the legislative body.

Furthermore, on May 14, in a Plenary Session and through a nominal vote, the Senate of the Republic decided to deny the requested favorable opinion, with 49 votes against and 47 in favor, as stated in the certification of the voting issued by the Secretary General of that Corporation. In this case, consequently, there is an express decision from the Senate denying the requested opinion, which is why the announced call would not comply with the constitutional requirement to obtain prior favorable opinion from the Senate.

Since the Senate adopted the decision to deny the requested favorable opinion, it cannot be argued that the legal term has expired without its pronouncement. While this hypothesis enabling the president’s competence to call the popular consultation is highly debatable constitutionally, the fact is that it is not possible to assert its configuration as the Senate pronounced itself within the one-month period established in Law 1757 regarding the inadvisability of calling a national popular consultation.

Against this decision of the Senate, the exception of unconstitutionality does not proceed. Although it can be classified as an administrative act, this does not mean that such an exception applies, as it is only viable regarding acts with the characteristics of a general, impersonal, and abstract legal norm. Legally, this involves disregarding a law or any other legal norm incompatible with the Constitution, and therefore it is not applicable to administrative acts that do not contain normative provisions or contents.

Even assuming for the sake of discussion that the exception of unconstitutionality can be applied, this control mechanism would only be appropriate if there is such an obvious antagonism between the opinion and the Constitution that it is evident prima facie, “making any legal elaboration seeking to establish or demonstrate that unnecessary.” The Court has clarified that the referred contradiction is the “essential element for the unapplication to be appropriate, as, if there is none, the official called to apply the law cannot argue the unconstitutionality of the norm to evade its compliance.”

In this case, there is no obvious contradiction, appreciable prima facie, between the decision of the Senate and the Constitution. The alleged unconstitutionality that the Government claims does not relate to the content of the decision but the procedure of its adoption, particularly with legal provisions regulating the duration of the vote, the process of an appeal against the decision to close the voting, and the controversies regarding a senator’s voting intention.

The Government makes a argumentative effort to demonstrate that such alleged procedural irregularities are contrary to the principle of reasonableness, the constitutional due process, and the Congress’s competencies. However, the alleged irregularities do not present an obvious antagonism between the decision’s content and the Constitution, firstly, because a unfavorable opinion is one of the constitutional options available to the Senate; secondly, because these matters are not regulated by the Constitution but by the Congress’s regulations; and thirdly, because demonstrating that these contradictions exist requires complex legal and evidentiary analysis, which excludes the requirement that the contradiction be obvious.

And even if the exception of unconstitutionality were applicable, the unapplication of the Senate’s decision denying the requested opinion does not lead to the decision ceasing to exist in the legal order nor does it transform the negative unapplied decision into a favorable opinion regarding the advisability of the consultation.

The exception of unconstitutionality -by not excluding the Senate’s decision from the legal order- does not establish the assumption of expiry of the term without pronouncement by that Corporation. The Government believes it can call the popular consultation if the Senate allows the period to expire without a pronouncement, but the exception of unconstitutionality does not configure this assumption.

The Minister of Justice has explained that the Government supports the thesis that the Senate’s decision did come into legal existence but is contrary to the Constitution, and therefore, the decree will not be based on the non-existence of the Congress’s act, which aligns with the State Council’s thesis presented when admitting the lawsuit against that decision. Thus, the application of the exception of unconstitutionality -as it does not configure any of the two assumptions provided in the legal order- does not enable the president of the Republic to call the announced popular consultation. This conduct of the Government is unconstitutional and illegal as it is adopted without competence to do so and, on the contrary, arrogating jurisdictional functions not granted to it by the Constitution or the law, exercising constitutional and administrative jurisdiction control over an administrative act that can only be performed by constitutional and contentious administrative judges, as applicable.

It constitutes usurpation of jurisdictional competencies

As explained at the beginning, the call for the consultation must necessarily be based on one of these two assumptions: (i) that the Senate issued a favorable opinion on the advisability of the call -despite the fact that this Corporation expressly decided to deny the requested opinion-, or (ii) that the Senate allowed the term to expire without pronouncement, despite the government’s public admission that the Senate’s decision came to legal life and that, therefore, the decree will not be based on the non-existence of the Congress act.

Assuming either of the two assumptions implies disregarding the Senate’s competence to decide on the advisability of the call for a popular consultation. Its decision cannot be modified by applying the exception of unconstitutionality; at most it may be unapplied but not modified.

On the other hand, the decision regarding the constitutional and legal validity of the decision adopted by the Senate corresponds to the judges. The government lacks the competence to annul that decision; also to establish that its unapplication leads to understanding that it issued the required favorable opinion. Even the eventual annulment of the decision by the competent judge would not lead to declaring that this Corporation issued a favorable opinion.

The eventual nullity of the decision due to the alleged procedural vices implies the expulsion from the legal order of the act issued by the Senate, but it does not result in modifying the vote in the sense of annulling some votes or counting uncast votes. That is, the nullity of the unfavorable opinion does not lead to understanding that the opinion is favorable. Only the competent judge may adopt the necessary remedies to restore the rights allegedly violated by the annulled action.

It would typify the crimes of abuse of power and unlawful exercise of public office by the president and the ministers who sign the call

Since none of the two assumptions enabling the president of the Republic to call the consultation are configured (favorable opinion or expiry of the term without pronouncement), the officials signing the call decree would be issuing a “resolution, ruling, or opinion clearly contrary to the law” and, at the same time, would be “exercising public functions other than those legally due to them.”

This is the case because the call for the popular consultation without prior and favorable opinion from the Senate regarding the advisability of the call would constitute an act clearly contrary to Articles 104 of the Constitution and 31.b and 32 of Law 1757 of 2015. Likewise, not enabling the president’s competence, officials signing the decree would be performing a function for which they lack competence.

The exception of unconstitutionality regarding the Senate’s decision does not enable the configuration of either of the two assumptions that enable the president of the Republic to call the announced popular consultation.