Key Benefits:
LAW 1722 OF 2014
(July 3)
Official Journal No. 49.802 of 1 March 2016
CONGRESS OF THE REPUBLIC
By means of which is approved the "Agreement of Partial Outreach of Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela", signed in Caracas, the Bolivarian Republic of Venezuela, on the 28th of November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I "Preferential tariff treatment". Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism".
THE CONGRESS OF THE REPUBLIC
Having regard to the text of the "Commercial Nature Agreement between the Republic of Colombia and the Bolivarian Republic of Venezuela", in Caracas, Venezuela, on 28 November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I "Preferential tariff treatment". Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism", which reads as follows:
(To be transcribed: A faithful and complete photocopy of the text in Spanish of the international instrument mentioned, certified by the Coordinator of the Internal Working Group of the Treaties of the Directorate of International Legal Affairs of the Foreign Relations Ministry, original document which is based on the file of that Ministry.)
2012 BILL NUMBER 145
by means of which the "Commercial Nature Outreach Agreement between the Republic of Colombia and the Bolivarian Republic of Venezuela", in Caracas, the Bolivarian Republic of Venezuela, is approved on 28 June. November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I "Preferential tariff treatment". Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism".
The Congress of the Republic
Having regard to the text of the "Commercial Nature Agreement between the Republic of Colombia and the Bolivarian Republic of Venezuela", in Caracas, Venezuela, on 28 November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I "Preferential tariff treatment". Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism", which reads as follows:
(To be transcribed: A faithful and complete photocopy of the text in Spanish of the international instrument mentioned, certified by the Coordinator of the Internal Working Group of the Treaties of the Directorate of International Legal Affairs of the Ministry of Foreign Affairs, original document which is based on the file of that Ministry.
AGREEMENT OF PARTIAL SCOPE OF COMMERCIAL NATURE BETWEEN THE REPUBLIC OF COLOMBIA AND THE BOLIVARIAN REPUBLIC OF VENEZUELA
The Government of the Republic of Colombia and the Government of the Bolivarian Republic of Venezuela, hereinafter referred to as "The Parties":
CONSIDERING that the Parties are signatories to the Treaty of Montevideo 1980 and that in Articles 7, 8, 9 and 10 of Section III, the procedures for the subscription of partial-scope agreements are established;
TAKING INTO ACCOUNT that as a result of the denunciation of the Andean Subregional Agreement (Cartagena Agreement) on April 22, 2006, the Bolivarian Republic of Venezuela is not a member of the Andean Community;
BEARING IN MIND the cessation of the rights and obligations of the Bolivarian Republic of Venezuela, resulting from the denunciation of the Cartagena Agreement, with the exception of the provisions of its Article 135 on the benefits received and granted In accordance with the Sub-region's Liberation Programme, the Parties undertook to maintain the tariff preferences in force from 22 April 2011, for a period of 90 days, to be extended for the period from 22 April 2011. negotiations of this Agreement, in the terms set out in Decree number 8.529 published in the Official Gazette of the Bolivarian Republic of Venezuela number 6,046 Extraordinary, dated 21 October 2011 and Decision No 746 of the Council of Foreign Ministers, extended to the Community Commission Andean, dated April 27, 2011;
CONVINCED that the rules to be agreed in this document should respect the Constitutions and laws of the Parties, as well as the commitments made by them in the various regional integration schemes of which both are parties and in the bilateral agreements entered into by each of the Parties;
RECOGNIZING that the historic trade exchange and its preferential treatment should be used as instruments of union of our peoples, in order to promote the socio-productive development, giving priority to the use of local inputs and protecting the development of our strategic sectors;
REAFFIRMING historical, cultural and economic ties between the Parties;
AGREE:
To conclude this Agreement on Commercial Partial Reach in accordance with the provisions of the Treaty of Montevideo 1980 and Resolution No. 2 of the Council of Foreign Ministers of the Latin American Free Trade Association (ALALC), which shall be governed by the following provisions:
OBJECT OF THE AGREEMENT.
ARTICLE 1. The Agreement aims to define the preferential treatment applicable to imports of products originating in the Parties, in order to promote economic and productive development of the both countries, through the strengthening of a fair, balanced and transparent bilateral trade exchange.
PREFERENTIAL TARIFF TREATMENT.
ARTICLE 2. The Parties agree to define the Preferential Tariff Treatment for imports of products originating in the Parties contained in Annex I, in the terms, scope and arrangements laid down therein.
This preferential tariff treatment will be defined on the basis of the Historical Trade that existed between the Parties, which includes all the subheadings in which commercial exchange was presented in the period 2006-2010.
For the definition of Preferential Tariff Treatment, existing sensitivities and special treatment needs in both countries will be taken into account.
The Parties may include or exclude tariff codes for the benefit of the Preferential Tariff Treatment, which will be done through the agreements reached by the Administrative Commission. Preferential Tariff Treatment should also define the cross-cutting disciplines related to market access.
SOURCE REGIME.
ARTICLE 3. The Source Regime in accordance with the terms set out in Annex II, which forms an integral part of this Agreement.
ARTICLE 4. The benefits derived from the tariff preferences granted to each other in this Agreement shall apply to goods that qualify as originating in the Parties, in accordance with with the criteria set out in Annex II.
STANDARDS OF MANDATORY COMPLIANCE, TECHNICAL REGULATIONS, CONFORMITY ASSESSMENT AND METROLOGY.
ARTICLE 5. The Parties agree to ensure conditions related to safety, protection of life and human, animal and plant health, protection of their environment, and the prevention of practices that may mislead users, without such measures constituting unnecessary restrictions on trade, in order to promote and facilitate a trade exchange of mutual benefit between the parties.
The above, in accordance with the criteria set out in Annex III, which forms an integral part of this Agreement.
HEALTH, ANIMAL HEALTH AND PHYTOSANITARY MEASURES.
ARTICLE 6. The Parties agree to safeguard and promote the health of persons, animals and plants, ensuring the quality and safety of food, products and by-products of animal and plant origin, in agreement with their respective national laws, as well as protocols and agreements signed with each other. They may also use, as a reference, the guidelines and/or recommendations developed by international bodies with competence in the field, such as the IPPC, the OIE and the Codex Alimentarius, avoiding the spread of pests. and diseases in trade between the Parties, taking into account the cooperation in mutually agreed terms and conditions. The Sanitary, Zoosanitary and Phytosanitary Measures agreed between the Parties shall be contained in Annex IV, which forms an integral part of this Agreement.
TRADE DEFENSE MEASURES.
ARTICLE 7. The Parties agree to the clauses referred to in Annex V to this Agreement in order to safeguard domestic production of any adverse effects of imports. under unfair and unfair trade practices, under the terms and conditions provided for.
ADMINISTRATION OF THE AGREEMENT.
ARTICLE 8. In order to achieve the best functioning of this Agreement, the Parties constitute an Administrative Commission, composed of the Ministries with competence in the field of Foreign Trade. of each of the Parties, hereinafter referred to as "The Commission". In special cases depending on the nature of the issues to be considered, the Commission may also incorporate the relevant ministries into the relevant area.
ARTICLE 9. The Commission shall meet semi-annually in an ordinary manner, and in an extraordinary manner at the place and mutually agreed dates, at the request of one of the Parties. Unless the Parties agree on a different date, the Commission shall hold its first meeting within thirty (30) days following the conclusion of this Agreement. All Commission decisions will be taken by mutual agreement.
Your functions will be as follows:
1. Assess and ensure compliance with the provisions of this Agreement;
2. Propose, revise and/or modify the inclusion or exclusion of products subject to special treatment provided for in this Agreement;
3. Make recommendations as appropriate to resolve any differences that may arise from the interpretation and application of this Agreement;
4. Review and/or amend the tariff preference levels granted by this Agreement;
5. Analyse, review and/or modify the specific requirements of origin, rules of origin and other rules set out in this Agreement;
6. Submit a periodic report on the evaluation and operation of this Agreement;
7. Establish its own operating rules; and
8. Any other attribution which the Parties deem necessary and which results from the application of this Agreement.
DISPUTE RESOLUTION.
ARTICLE 10. The doubts and disputes that may arise between the Parties on the occasion of the interpretation or execution of this Agreement shall be resolved by exhausting the consultations and mechanisms (a) specific measures to address such differences in accordance with the procedure laid down in Annex VI, which forms an integral part of this Agreement.
VALIDITY.
ARTICLE 11. This Agreement shall enter into force on the date of receipt of the last of the communications through which the Parties notify the Secretariat of the ALADI of their compliance with their obligations. internal legal provisions for this purpose, and shall have an indefinite effect.
COMPLAINT.
ARTICLE 12. The Party wishing to terminate this Agreement shall communicate its decision in writing to the other Party, with 90 calendar days in advance to the deposit of the respective instrument of Complaint to the General Secretariat of the ALADI.
From the formalization of the complaint, the rights and obligations arising from this Agreement shall automatically cease for the Parties, except as regards the treatments received and granted for the importation of goods. originating, which shall continue to be in force for the end of two years from the deposit of the respective instrument of denunciation, unless the Parties agree to a different period of time in the case of the complaint.
TRANSIENT PROVISIONS.
ARTICLE 13. However, as provided for in Chapter IX, Article 11, the Parties establish that this Agreement shall not enter into force until the annexes to which they refer are agreed. items 2, 3, 4, 5, 6, 7 , and 10, which are integral to this Agreement. The Parties undertake to agree on the abovementioned Annexes by 30 December 2011.
FINAL PROVISIONS.
ARTICLE 14. This Agreement may be amended by common agreement between the Parties. Amendments to this Agreement shall be formalised by the subscription of additional protocols, following the entry into force procedure set out in Article 13 of this Agreement.
Subscribed in the city of Caracas, at twenty-eight (28) days of November 2011, in two (2) original copies of equal, value and tenor, written in Spanish.
www.imprenta.gov.co>
THE UNDERSIGNED COORDINATOR OF THE INTERNAL WORKING GROUP OF TREATIES OF THE DIRECTORATE OF INTERNATIONAL LEGAL AFFAIRS OF THE MINISTRY OF FOREIGN RELATIONS OF THE REPUBLIC OF COLOMBIA
CERTIFIES:
That the reproduction of the text above is a faithful and complete copy of the Spanish language version of the "Commercial Nature Outreach Agreement between the Republic of Colombia and the Bolivarian Republic of Venezuela" signed in Caracas, Bolivarian Republic of Venezuela, on November 28, 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I 'preferential tariff treatment', Annex II 'Origin scheme', Annex III ' Technical Regulations, Conformity and Metrology Assessment, Annex IV "Health, Animal Health and Phytosanitary Measures", Annex V "Commercial Defence Measures and Agricultural Special Measure", Annex VI "Dispute Settlement Mechanism". in the files of the Internal Working Group of the International Legal Affairs Directorate of this Ministry.
Dada in Bogotá, D. C., at thirteen (13) days of the month of September of two thousand twelve (2012).
The Treaty Work Internal Group (e) Coordinator,
LUCIA SOLANO RAMIREZ,
Directorate of International Legal Affairs.
EXPLANATORY STATEMENT TO BILL NUMBER 145 OF 2012 SENATE.
by means of which the "Agreement of Partial Scope of Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela", signed in Caracas, Bolivarian Republic of Venezuela, is approved Venezuela, on November 28, 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012.
Honorable Senators and Representatives:
On behalf of the National Government, and in compliance with articles 150 numeral 16, 189 numeral 2 and 224 of the Political Constitution of Colombia, we present to the honorable Congress of the Republic the Bill, by means of which the " Agreement of Partial Scope of Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela ", signed in the city of Caracas, Venezuela, at twenty-eight (28) days of November of two thousand eleven (2011) and its six annexes with their respective appendices, signed in the city of Cartagena, Colombia, at fifteen (15) days of the month of April two thousand twelve (2012).
This document consists of four (04) parts. In the first, the legal, political and commercial context is presented. In the second, the main features of the agreement are set out. In the third, the analysis of compliance with the constitutional precepts is done, and the last part contains the conclusions.
Likewise, this document is annexed to the text of the agreement, which consists of twelve (12) chapters and their annexes with their respective appendices. The structure of the Agreement is as follows:
| AAP | ||||||
| Chapter | Title | Number | Title | Title | ||
| I | Object to the Agreement | - | - | |||
II | Treatment Tariff Preferential | I | Preferential River Treatment | A and B | Preferential Tariff Treatment | |
III | Source Regime | II | Source Regime | I | Source-specific requirements | |
| II | Certificate of Source | |||||
IV | Standards of Mandatory Compliance, Technical Regulations, Conformity Assessment and Metrology | III | Technical Regulations, Conformity Assessment and Metrology | - |
||
V | Sanitary, Animal Health and Phytosanitary Measures | IV | Sanitary, Zoosanitary and Fito-sanitary measures | - |
||
VI | Commercial Defense Measures | V | Trade Defense and Special Agricultural Measure Measures | 1 | Agricultural products that may be subject to the special agricultural measure by the Republic of Colombia | |
2 | Agricultural products which may be subject to application of a Special agricultural measure by the Bolivarian Republic of Venezuela | |||||
| VII | Agreement Administration | - | - | |||
VIII | Dispute Solution | VI | Dispute Settlement Mechanism | - |
||
| IX | Vigencia | - | - | |||
| Reporting | - | - | ||||
| XI | Transitions Provisions | - | - | |||
| XII | Final Provisions | - | - | |||
1.1. Legal
1.1.1. Constitutional powers of the Executive and the Legislative Branch in the field of international trade negotiations.
The celebration of international trade agreements is a complex act that requires the active participation of all three branches of public power. In a first instance, the number 2 of the article 189 assigns to the Executive in the head of the President of the Republic the direction of the international relations and the faculty to celebrate treaties or agreements with other States and entities of international law, which shall be subject to the approval of the Congress[1]. In addition, the number 25 of article 189 empowers the President of the Republic to modify the tariffs, tariffs and other provisions concerning the customs regime and to regulate the foreign trade. Finally, Article 224 of the Constitution authorizes the President to provisionally apply treaties of an economic and commercial nature, signed in the field of an international body.
In a second instance, the article 150 assigns to the Congress of the Republic the function of approving or improving the agreements that the Executive has concluded, as well as the issuance of the general rules on the basis of which the National Government must regulate foreign trade[2]. Finally, the Political Constitution also provides for the active participation of the judicial branch of public power. Article 10 of article 241 of the Political Constitution states that the Constitutional Court has to decide definitively on the exilibility of international and international treaties. the laws that approve them.
The analysis of the constitutional text shows that the functions of the branches of public power are clearly defined in terms of negotiation and the conclusion of international treaties. This is how the President directs international relations and celebrates international treaties; Congress approves or improves them by issuing laws; and the Constitutional Court exercises the prior control of the constitutionality of the law. law approving the Agreement as an international instrument.
1.1.2. Policy of internationalization of the economy in the National Development Plan
The document "Bases of the National Development Plan", as an integral part of Law 1450 of 2011-"National Development Plan"-sets out the general guidelines to be observed by the Government in the international relations, in particular with regard to international trade, with a view to ensuring the insertion of the Colombian economy into international markets.
In Chapter VII, the need to implement an internationalization strategy that allows to increase the participation of Colombia in the global market by stimulating the competitiveness of the national production, through: (1) a tariff policy to promote productive transformation, (2) the negotiation, implementation and administration of international agreements, (3) the promotion of investment, and (4) trade facilitation.
In relation to the strategic line of negotiation, implementation and administration of international agreements, the document "Bases of the National Development Plan", in Section B, Part 1, literal b), numeral 2[3], establishes the next:
" (...)
the area of relations with the countries of the region, it is necessary to work on the design and negotiation of a new legal framework that regulates relations with Venezuela from April 2011, when the tariff preferences in the framework of the CAN. In the same way, work will continue on the Strategic Agenda approved in February 2010 by the CAN, which establishes as a priority the continuation of the work to consolidate the free movement of goods, services and people; areas of work in the field of productive chains and the strengthening of small and medium-sized enterprises. Likewise, in the framework of the Aladi Colombia, it will continue in the process of deepening the search for areas of convergence in the region, as well as in the Area of Deep Integration, composed of Colombia, Chile, Mexico and Peru, in which progress is expected to be made. on issues of facilitating the movement of people, movement of capital, trade in services, market access and energy integration. " (Emphasis off text) Equally, Section B, Part 2, literal b), numeral 2[4], Sets the following:
" With Latin America and the Caribbean, economic, social, cultural, and political ties will be strengthened. In particular, the neighbouring countries will work to strengthen trust, direct dialogue, reciprocal cooperation, border development and political relations. The above, bearing in mind that the links with our neighbors are a priority. In this way, efforts will be redoubled to strengthen long-term relations in the framework of frank and respectful dialogue, giving priority to diplomatic channels, the principles of international law and preserving security. national ".
All of the above purposes must be considered as part of Colombia's national interest in the framework of the trade agreement negotiations. In compliance with the strategy of international relevance in the National Development Plan, it was negotiated and signed with the neighboring Bolivarian Republic of Venezuela the Partial Agreement of Commercial Nature that the Government submits in this opportunity for consideration by the honorable Congress of the Republic.
1.1.3. The Treaty of Montevideo of 1980
On February 18, 1960, the Treaty of the creation of the Latin American Free Trade Association (ALALC) was signed in Montevideo in order to promote the economic integration of Latin American countries, through the expansion of the size of the Latin American Free Trade Association (ALALC). of its markets and the expansion of its reciprocal trade. The initial agreement covered seven countries:
Argentina, Brazil, Chile, Mexico, Paraguay, Peru and Uruguay. Later, Colombia, Ecuador, Bolivia and Venezuela joined.
On 12 August 1980 the Treaty of Montevideo (TM80) was signed, which replaced the 1960 Treaty and established the Latin American Integration Association (Aladi). The Aladi aims in the long term to establish a common Latin American market.
Under that purpose, member countries established an area of economic preferences, comprised of the Regional Tariff Preference (PAR) mechanism, Regional Outreach Agreements, and Partial Outreach Agreements.
The Montevideo Treaty was signed by Argentina, Bolivia, Brazil, Colombia, Chile, Ecuador, Mexico, Paraguay, Peru, Uruguay and Venezuela. Recently, he joined the Republic of Cuba. For its part, Colombia approved the Treaty by Law 45 of 1981.
The Treaty of Montevideo provides that the Contracting Parties may enter into partial scope agreements in which all the member countries which are not participating in the process of creating the necessary conditions for deepening the process of regional integration through its progressive multilateralism.
Articles 7o, 8o, 9o and 10 of Section III of the TM80 set out the procedures for the subscription of partial-scope agreements. These agreements may be commercial, economic, agricultural, trade promotion or other modalities such as scientific and technological cooperation, tourism promotion and environmental preservation. In addition, in accordance with the provisions of the procedures of the partial-scope agreements, the trade agreements must be exclusively for the promotion of trade between the Member States and will be subject to the rules of procedure. specific to the effect.
The Agreement that is now being considered by the Congress is a Commercial Nature Outreach Agreement concluded in the framework of the Treaty of Montevideo 1980.
1.2. Politician
On May 26, 1969 Bolivia, Colombia, Chile, Ecuador and Peru, based on the Declaration of Bogotá (1966) and the Declaration of America (1967), signed the Cartagena Agreement, through which the Andean Community was established. Subsequently, Venezuela acceded to the Agreement in 1973 and Chile withdrew in 1975. Colombia incorporated into its internal legislation this Agreement by Law 8 of 1973.
The Cartagena Agreement aims to promote the balanced and harmonious development of the member countries in conditions of equity, through integration and economic and social cooperation; to accelerate their growth and the generation of occupation; facilitate their participation in the regional integration process, with a view to the gradual formation of a common Latin American market.
In this context, since 1992, a free trade area has been established in the Andean Community, strengthening bilateral trade relations between Colombia and Venezuela and increasing the presence of Colombian companies in Venezuela and Venezuela. vice versa. Full productive chains were even organized between the two countries.
On April 22, 2006, Venezuela formalized its decision to denounce the Cartagena Agreement and on August 9 of the same year it signed with the Member Countries of the Andean Community a Memorandum of Understanding, through which they agreed to give full In accordance with Article 135 of the Cartagena Agreement, the commercial advantages received and granted in accordance with the Andean Sub-Region Liberation Program for 5 years, pursuant to Article 135 of the Cartagena Agreement, were valid. April 22, 2011.
At the end of the year, bilateral trade flows continued to benefit from preferential access through unilateral concessions by Venezuela. Colombia, for its part, has maintained reciprocal trade preferences in accordance with Decision 746 of the Andean Community. Once the Partial Scope Agreement enters into force, preferential access will be reached by virtue of it.
Despite Venezuela's withdrawal from the Andean Community in 2006, the trade relationship had strengthened until 2009. Following the announcement of Colombia and the United States to negotiate a Cooperation Agreement on Defense, on August 5, 2009, President Chavez announced the "suspension of all imports from Colombia." He requested the withdrawal of his ambassador (which did not happen), asked his ministers to replace the imports from Colombia, and to study the possible cancellation of joint projects, such as the binational gas pipeline. He also announced the possibility of expropriating the Colombian capital companies established in that country and ending all trade agreements.
As of the second half of 2009, the Venezuelan government imposed the following restrictions on Colombia:
-- Non-renewal of import permissions
-- Failure to issue certificates (source, non-production, healthcare)
-- Non-payment authorization by CADIVI
-- Non-renewal of aeronautical permissions
-- Non-renewal of health permissions
-- Difficulties in border transit, including periodic closures
-- Requiring visas for non-tourists
-- Foreign travelers with discriminatory amounts
in the face of President Chavez's announcement to freeze and "bring to zero" trade relations with Colombia, in 2009 exports to Venezuela fell 34 percent compared with those recorded in 2008. Between 2009 and 2010, trade was reduced by 168%, from USD 4,578 million in 2009 to USD 1,708 million in 2010.
With the normalization of the bilateral relationship since 2010, the recovery of bilateral trade has become evident. In 2011 our exports (USD 1750 million) grew 23% compared to those presented in 2010 (USD 1423 million).
Therefore, it is imperative to have a legal framework regulating and providing certainty for bilateral trade, which will stimulate the development of the complementarities of the two economies and help the growth of bilateral trade exchange. The agreement is expected to recover a market that was fundamental for Colombian exporters. Our exports fell 71% since 2008. In that year, Venezuela was the second destination of our exports to the world, in 2011 it ranked seventh.
1.3. Commercial
Source: DIAN-DANE Database. He elaborated DIE-MCIT.
The trade balance between Colombia and Venezuela over the last six years has been a surplus for Colombia. In analyzing the behavior of the trade balance, there is a growing trend of trade from 2006 to 2008, as it has increased from USD 1.263 billion to USD 4,951 million, respectively. As of 2009, the trend was decreasing to only USD 1,131 million in 2010, representing a drop in trade of 77%.
1.3.1. Exports from Colombia to Venezuela
While it is true that Colombian exports to Venezuela in 2010 saw a sharp drop, with the normalisation of the trade relationship, starting in June 2011, they began to reflect a favorable trend in trade, is as at the end of 2011 the trade balance has presented a growth of 7.5% against the year before, passing from USD 1,131 million to USD 1,217 million.
The same trend was reflected in the period January-May 2012, where the trade balance had an approximate growth of 109% compared to the same period of 2011, from USD 335 million to USD 700 million. So in May 2012, bilateral trade exceeded more than 57% of the total realized in the previous year.
The main sectors that contributed to the growing trend of exports in 2011 and accounted for 41% of the total exported were: petroleum derivatives (USD 332 million), basic chemistry (USD 223 million), machinery and equipment (USD 170 million), confections (USD 156 million), paper (USD 143 million), and soaps, cosmetics, others (USD 112 million).
The main products exported between January and May 2012 and representing 53% of the total exported were: petroleum derivatives (19%), basic chemistry (12%), machinery and equipment (11%), confections (6%) and metallurgical (5%).
Source: DIAN-DANE Database. He elaborated DIE-MCIT.
1.3.2. Colombia imports from Venezuela
Imports to Colombia from Venezuela decreased from USD 1,438 million FOB in 2006 to USD 534 million FOB in 2011. The main sectors where imports of Venezuelan origin were registered in 2011 were: metallurgical (40%), basic chemistry (40%), petroleum products (9%) and machinery and equipment (4%).
For the period January to May 2012, imports recorded a FOB value of USD 276 million. Among the main products imported from Venezuela in this period are: basic chemistry (34%), metallurgical (33%), machinery and equipment (18%) and petroleum products (9%).
The above indicates that imports with Venezuela are being reactivated, as are exports, taking into account that in the first five months of 2012 it was already exceeded by about 52% imported in 2011.
1.3.3. Investment
Foreign direct investment in Colombia from Venezuela for 2011 was approximately USD 20 million, reflecting a decreasing trend of 52% since 2010 was USD 42 million.
The investment from Venezuela was concentrated mainly in the industrial sector, followed by the trade and transport sectors in a smaller proportion.
For the year 2011, Colombia's foreign direct investment in Venezuela was USD 7 million. Colombia's accumulated FDI in Venezuela for the period from 2003 to 2011 was approximately USD 28 million.
1.3.4. Tourism
In 2011, 16% of the number of Venezuelan visitors to Colombia is growing, in a notable trend of growth, after the decrease presented in 2010 of 21%.
Venezuelan tourists occupy 2nd place among the tourists who visit Colombia most.
In the last four years, Colombia has visited an annual average of 225 thousand Venezuelan tourists.
TOURISM
For its part, the number of Colombians visiting Venezuela increased in the last year by 13%, from 150,240 tourists in 2010 to 170,979 tourists in 2011. Venezuela is the 5th destination chosen by Colombian tourists. In the last four years, Venezuela has visited an annual average of 207 thousand Colombian tourists.
2. MAIN FEATURES OF THE PARTIAL SCOPE AGREEMENT.
2.1. Background
On 10 August 2010 in the framework of the meeting held by Presidents Juan Manuel Santos and Hugo Chavez Frias in Santa Marta with the objective of restoring diplomatic relations between the two countries, the "Commission for payment" was created. of the debt and the impetus of the trade relations "and the" Commission to work an agreement of economic complementation ".
On August 20, 2010, the first meeting of the Commissions was held, where the negotiation criteria were established and Colombia's interests were raised to establish a legal framework for the bilateral trade relationship.
At the Second Meeting of the Ministerial Commissions, held in Cucuta, on October 7, 2010, a draft Framework Working Document for Negotiations was presented to Venezuela, in order to receive its comments from that country. and observations.
On that occasion, the Parties undertook to conclude the negotiations of the Agreement in April 2011.
At the Presidents ' Meeting, held in Caracas on November 2, 2010, the Declaration of Miraflores established the Economic-Productive Binational Committee with the objective of advancing the Complementarity Agreement. Economic and Productive and to promote sectoral productive alliances. On this occasion, Venezuela made a commitment to speed up the formalities associated with Colombian exports and announced the authorization of certificates of origin for Venezuelan exports to Colombia.
It was also at the First Meeting of the Productive Economic Binational Committee, held in Caracas between 8 and 9 November 2010, that progress was made in the Framework Document for the Negotiation of the Bilateral Agreement, on the basis of the Work Plan Venezuela presented during the Presidents ' meeting on November 2.
Colombia delivered a draft text of the Economic and Productive Complementation Agreement, in the framework of the Meeting of the Minister of Commerce, Industry and Tourism of Colombia with the Economic Vice President and the Minister for Trade Venezuela of 16 February 2011. On this occasion, Venezuela gave a message of full restoration of bilateral trade.
Venezuela sent a counter-proposal to the Economic and Productive Complementation Agreement on March 24. In the visit to Colombia of the Venezuelan Foreign Minister, on March 27, 2011, Colombia presented the first observations on the proposal for the text of the agreement submitted by Venezuela and expressed our concern about the fall of the trade in the country. first quarter. Likewise, he explained the difficulties that were being presented in order to acquire permits and the acquisition of foreign currency in order to be able to export.
At the meeting with technical teams on the Economic and Productive Complementation Agreement of March 29, 2011, Colombia reiterated the need to include a predictable legal framework, which could be the WTO or the Aladi, as well as a investment so that the elements of economic complementarity will work. Colombia expressed its concern over the text proposed by Venezuela because it allowed the parties ' discretion as to unilateral actions in order to increase tariffs and restrict imports. Colombia committed itself to present a negotiating text that would collect the interests of the Parties no later than the second week of April.
At the Presidential Encounter of Cartagena de Indias of 9 April 2011, the extension for 90 days of the conditions applicable to bilateral trade provided for in Article 135 of the Cartagena Agreement was announced.
On June 7, 2011, Minister Sergio Diaz-Granados referred Colombia's proposal for table text for the negotiation of the Economic and Productive Complementation Agreement.
This text was prepared to collect in its entirety the proposals submitted by Venezuela on March 24.
However, no response was ever received from Venezuela. Only until 9 October 2011, at a bilateral meeting on the Trade Agreement, in Bogota, it was decided that a Partial Outreach Agreement would be negotiated in the framework of Aladi. Venezuela delivered a draft text of the agreement.
The First Round of Negotiations of the Partial Outreach Agreement was held between October 18 and 19, 2011, in the city of Caracas. On this occasion, progress was made in the discussion of the general text of the Agreement, as well as in the texts of the following disciplines: Technical Standards; Commercial Defense; Sanitary and Phytosanitary Norms and Rules of Origin.
At the meeting of Minister Sergio Díaz-Granados with Minister Menéndez, in Isla Margarita, on November 22, 2011, it was agreed that there would be preferences for the historic trade of the Parties. On this occasion, Venezuela announced that the preferences would be extended for three more months (until 12 January 2012).
At the Meeting of the Economic-Productive Binational Committee, held in Bogota, on October 24, it was agreed that the Partial Outreach Agreement would be signed in the framework of the Treaty of Montevideo 1980 and that preferences would be granted. tariff quotas applicable to imports of products originating in both countries corresponding to the historical trade. In this regard, it was agreed that a review of the commercial history would be carried out, where the greatest flow was concentrated.
At this meeting, there was no clear definition of the extent of the historic (from what year and volume). Likewise, it was agreed that products will be identified that despite not having had trade would enjoy tariff preferences.
In the Second Round of Negotiations of the Agreement, which was held from 26 to 27 November 2011, the general text of the Agreement was agreed and the negotiations of the Technical Standards Annex were finalized.
Venezuela presented a proposal of the concept of Historical Trade that incorporated 90% of the trade in preferential treatment in the period 2004-2010 to preferential treatment. For Colombia, the Historical Trade refers to maintaining a preferential tariff treatment for all the tariff subheadings that have been traded independently of the value (it does not take up to 90%, but it collects 100%).
At the Presidential meeting on November 28, it was agreed that the preferential treatment would be defined based on the Historical Trade that existed between the two countries, which included all the subheadings in which it was presented. commercial exchange in the period 2006-2010. It was also agreed that each country would take into account existing sensitivities and special treatment needs and that countries should define cross-cutting disciplines related to market access.
This was stated in the basis of the Partial Outreach Agreement signed by the Presidents of both countries on November 28, 2011. However, the annexes on preferential treatment, rules of origin, sanitary and phytosanitary rules, technical standards, trade defence and dispute settlement were still pending, which the text of the agreement should be agreed before 30 December 2011.
Only until 15 April 2012 and after three rounds of negotiations in December 2011 and January and February 2012, respectively, the annexes to the agreement establishing the disciplines that will apply to bilateral trade were signed: the Preferential tariff treatment (Annex I), the Origin Regime (Annex II); the Technical Standards (Annex III); the Health, Zoosanitary and Phytosanitary Measures (Annex IV); the Commercial Defense Measures (Annex V) and a Solution Mechanism Disputes (Annex VI).
2.2. Generalities
The agreement is important for Colombia considering that Venezuela is Colombia's natural trading partner, as they share a 2,219-kilometer long border.
Since 1992, there is a free trade area between the two countries, which allowed the strengthening of the trade relations between Colombia and Venezuela, the increase in the insertion of Colombian companies in Venezuela, and vice versa. organized full production chains between the two countries.
There are multiple complementarities of our economies. Venezuela is privileged in natural resources and Colombia in the production of goods with a higher degree of elaboration and added value. They are similar economies in size, which we have known to strengthen that natural market that offers us our border and which is developed day by day among the border populations.
Although our development models are different, the goal is the same, to improve the welfare levels of both peoples. Models are not incompatible or eliminate the complementarities we have.
The existence of a legal framework for bilateral trade stimulates the development of the complementarities of our economies that will impact on the growth and balance of our trade exchange.
2.3. Preamble and object
In the preamble, the recitals that led to the subscription of the agreement are established. In this regard, it is specified that both countries are signatories to the 1980 Treaty of Montevideo. The above, bearing in mind that the Commercial Nature Outreach Agreement was signed in accordance with the provisions of the Treaty of Montevideo 1980 and Resolution No. 2 of the Council of Foreign Ministers of the Latin American Free Trade Association (ALALC).
Likewise, it is considered the denunciation of Venezuela of the Agreement of Cartagena on April 22, 2006 and the cessation of its rights and obligations, arising from the denunciation of the agreement, with the exception of the provisions of its article 135 on the advantages received and granted in accordance with the Subregion Liberation Program, which were in force until April 22, 2011 and were unilaterally extended by Venezuela and Colombia through the Decision 746 of the CAN.
In the preamble it is established that the rules contained in the agreement must respect the constitutions and laws of both countries, as well as the commitments made by them in the different regional integration schemes of which both countries are parties and in the bilateral agreements they have concluded.
It is determined that the historical trade exchange and its preferential treatment should be used as instruments to promote socio-productive development, giving priority to the use of local inputs and protecting the development of its strategic sectors.
The agreement aims to define the preferential treatment applicable to imports of products originating in the two countries, in order to promote their economic and productive development, through the strengthening of an exchange fair, balanced and transparent bilateral trade.
2.4. Preferential tariff treatment
Chapter II of the Agreement establishes that the preferential tariff treatment will be defined for imports of products originating in Colombia and Venezuela contained in Annex I, in the terms, scope and modalities established in the same.
The preferential tariff treatment is defined based on the Historical Trade that existed between Colombia and Venezuela, which includes all the subheadings in which commercial exchange was presented in the period 2006-2010 (near of 4,921 lines for Colombia and 4,713 for Venezuela). With the above, 91% of historical trade (USD 4.072 million between imports and exports) is maintained at 100% preference, that is, it enters Venezuela with zero tariff.
For the definition of Preferential Tariff Treatment, the existing sensitivities and special treatment needs in both countries were taken into account.
In this sense, the agreement establishes a preferential access of 100% (zero tariff) of this historical trade, except for those products that defined as sensitive both countries, which will enjoy a margin of preference.
Likewise, this chapter states that Colombia and Venezuela may include or exclude tariff codes for the benefit of preferential Tariff Treatment, which will be done through the Administrative Commission.
Colombia maintains preferential access, that is, zero tariff, for approximately 4,810 subheadings in which trade was presented between 2006 and 2010.
In the Colombia and Venezuela Agreement, tariff preferences are granted on tariffs in force for imports from third countries. In the case of Colombia's sensitive products, the preference applies to the defined base tariff.
Venezuela's list of sensitive items includes 95 subheadings representing USD 368 million of Colombia's exports made in the period 2006-2010. For 93 subheadings, a fixed preference margin is maintained between 40% and 80%.
These 95 subheadings account for 9% of our exports and are broken down as follows:
-- Agricultural sector (14 subheadings representing USD 89 million of our average exports): bovine semen (USD 40 million), chocolate (USD 20 million), palm oil (USD 11 million), eggs (USD 9 million), milk drinks (USD) 6 million) and chicken (USD 3 million).
-- Industrial sector (81 subheadings representing USD 279 million): confections (USD 83 million), paper and printed (USD 64 million), tiles and ceramics (USD 45 million), electrical conductors (USD 26 million), clay and coal (USD 10) (million), glass products (USD 8 million), aluminium, iron and steel products (USD 7 million) and household appliances (USD 1).
In the agricultural sector, the maintenance of zero-tariff access to the Venezuelan market is highlighted for about 400 subheadings that represent USD 746 million of average annual exports. Some agricultural sectors with 100% preference are:
meats and their preparations (account for 48% of exports), sugar and confections (11%), live animals and their products (11%), food preparations (8%), plants (7%), dairy (5%), bakery products (5%), among others.
However, Colombia has a sensitive list of 111 agricultural lines with preferences between 0% and 33%.
To avoid barriers other than tariff barriers, the commitment to refrain from non-tariff restrictions on imports of goods was set out in Annex I to the Agreement on preferential tariff treatment. of the other country.
Agricultural and industrial products will always have to meet the technical, sanitary and phytosanitary requirements required by both countries.
Through the agreement of the Administrative Commission of the agreement or through the ad hoc groups that it considers relevant to create, it will be ensured that the technical standards between the two countries are met. The Committee for Health, Animal Health and Plant Health Measures (MSZF) will also be responsible for ensuring compliance with these standards.
Likewise, Colombia and Venezuela agreed that they will not adopt tariff charges that could affect bilateral trade and that there will be no discriminatory treatment. In this same sense, they agreed that they would not adopt non-tariff restrictions on imports of goods from the other Party.
2.5. Source rules
The agreement establishes the criteria for the qualification, certification, control and verification of the origin of the goods subject to preferential trade between the parties.
The source qualification criteria are:
-goods wholly or wholly produced in the territory of a Party;
-goods produced entirely on the territory of a party from materials that they have previously qualified as originating;
-goods made from non-originating materials provided that they comply with the general rule:
-- change of departure or
-- that the CIF value of non-originating materials does not exceed 50 percent FOB value of export of the commodity; or
-goods made from non-originating materials provided that they comply with the specific requirement of origin established.
For the certification of the origin of the goods, a certificate of origin format was established, which must be completed by the producer or exporter of the goods and validated by the competent authority of each party. Such certificate shall cover a single import operation of one or more goods and shall be valid for one year.
Source Specific Requirements were set for the products in the sectors listed below:
-For agricultural products the rule seeks to privilege the use of cane and regional sugar, as well as the oilseeds produced in the parts for further preparation.
-In the case of oil the rule allows the manufacture of petroleum derivatives even if they are not refined outside the territory of the parties.
-For fabrics, it is possible to incorporate non-originating inputs up to 60% in the first year. In order to increase the regional integration of inputs, the percentage is gradually reduced to 45% in the third year. Additionally, for these products the unlimited incorporation of non-third country elastomeric filaments and monofilaments and for the knitted fabrics further includes flexibilities in nylon.
-For the regulations, the rule allows the incorporation of non-originating inputs up to 60% in the first year, this percentage will be reduced by 5 points annually until they reach in the third year to 50%. It is permitted to include filaments and monofilaments of nylon, polyester and elastomers of third countries. A note was also included that invites the Commission to review from the third year the possibility of reducing the percentage of input from third-country inputs to 45%, without implying a halt to trade flows.
-For the steel sector, quotas were agreed, to qualify as a source of compliance with the general rule of origin, for items 7210 (9,500 ton), 7214 (2,400 ton), 7215 (2,400 ton), 7216 (1,000 ton) and 7217 (980 ton). Outside the quota and for the other items included in Chapter 72, it shall be necessary for them to make the cast iron, cast and cast iron or cast iron of the Parties.
-In the automotive sector a rule has been defined on the same terms of the CAN with one year in force. In addition, a commitment has been included to ensure that within the Administrative Commission of the Agreement the rule of origin will be defined that will govern once the period of temporality of the norm has been met.
As regards origin, the agreement provides for a transitional provision with which certificates of origin issued in accordance with Decision 416 of the Andean Community, which are in force at the time of the entry into force of the Agreement, maintain their validity for the period laid down in that Decision. The Parties may also issue certificates of origin in accordance with the same Decision for a transitional period of up to sixty (60) days from the entry into force of the agreement.
2.6. Technical regulations, conformity assessment and metrology
The aim of the Technical Regulations Annex is to ensure the safety and security of life and human, animal and plant health; to protect the environment and to prevent practices which may mislead the users, without such measures constituting unnecessary restrictions on trade, in order to promote and facilitate a mutually beneficial trade exchange on both sides.
The scope and scope of this Annex includes the development, preparation, adoption and implementation of technical regulations and conformity assessment procedures, including those relating to metrology, which may have an effect on the trade exchange between Colombia and Venezuela. This Annex shall not apply to Sanitary, Zoosanitary and Phytosanitary Measures, or to technical or purchasing specifications established by government institutions based on their specific requirements.
The Annex states that the National Competent Authorities of both countries, with the support of their corresponding technical entities, will foster cooperation and bi-national technical assistance to develop, promote and strengthen the level of technical-scientific, technological innovation, the infrastructure of their national quality systems and the training and training of human talent, including the exchange of experiences and social knowledge.
By means of the Agreement Administrator Commission or through the ad hoc groups that it considers relevant to create, the implementation of this Annex will be facilitated.
Also, technical consultations related to the objectives of the Annex will be carried out through these instances.
A mechanism for information exchange was established, which will allow them to notify directly the contact points of the other country: proposals for technical regulations and requirements for conformity assessment that may have a significant effect on bilateral trade and technical regulations and requirements for conformity assessment adopted to address urgent problems of safety, health, environmental protection or national security, which are presented or threatened present.
In the same way, the Annex determines that the relevant international technical standards, guidelines and recommendations, which are in force or whose adoption is imminent, will be taken into account as a basis for the elaboration of their technical regulations. and conformity assessment procedures.
2.7. Sanitary, animal and plant health measures
For the adoption and implementation of the Sanitary, Zoosanitary and Phytosanitary Measures, both countries will use their respective national laws, as well as protocols and agreements signed with each other. They may also use, as a reference, the standards, guidelines and recommendations developed by international bodies with competence in the field, such as the IPPC, the OIE and the Codex Alimentarius.
The Committee for Health, Animal Health and Phytosanitary Measures (MSZF) is set out in the Annex. The Committee shall meet no later than 30 days after the entry into force of the agreement.
In the same way, a consultation mechanism was established for when doubts or differences arise about the adoption, interpretation or application of a Health, Zoosanitary and Phytosanitary Measure.
2.8. Trade defence measures
Countries may adopt the measures provided for in this Annex in order to safeguard domestic production of any harmful effects of imports under unfair and unfair trade practices.
It was agreed not to apply to bilateral trade in originating products all forms of export subsidies.
Of the anti-dumping and countervailing measures. The anti-dumping and subsidy investigations shall be governed by the provisions and procedures laid down in the applicable national rules of the Parties applicable to the matter, and in accordance with the provisions of the provisions of the general of this Annex.
Of bilateral safeguards. The Parties may adopt and apply bilateral safeguard measures, subject to investigation, if imports of goods originating under preferential tariffs from the other Party have increased in absolute terms, or in relation to the domestic production, and under such conditions as to cause or threaten to cause damage to the domestic production of similar or directly competing goods.
Special agricultural measure. Each Party may apply a special agricultural measure to imports of originating agricultural products listed in its Appendix. A Party may apply the Special Agricultural Measure, where the total volume of imports of the product concerned, in the last 12 (12) calendar months is equal to or greater than 20% to the average annual volume of imports of that product. the product originating in the exporting Party, registered in the thirty-six (36) months preceding the last twelve (12) months, in which the indicator was activated. For the first three years of implementation of the agreement, the annual average will be as expected in Appendices 1 and 2.
In Appendix 1 are the agricultural products that may be subject to the Special Agricultural Measure by the Republic of Colombia, as well as the level of activation of the Measure, in tons. The products and activation level are as follows:
| Description | Activation Level (Tons) | |
| starch | 840 | |
| food preparations containing cocoa, not containing added sugar or other sweetening matter, in blocks or bars weighing more than 2 Kg, or in shape Liquid, pasty, powder, granules or similar forms, in containers or immediate packings of a content exceeding 2kg. | 2 | |
| chocolates and other food preparations containing cocoa, in blocks, tablets or bars, "fillers", not containing added sugar, or other sweeteners. | 3 | |
| chocolates and other food preparations containing cocoa, in blocks, tablets or bars, "fillers". | 275 | |
| chocolates and other food preparations containing cocoa, not containing added sugar, nor others. | 40 | |
| chocolates and other food preparations containing cocoa. | ||
| Ketchup and other tomato sauces | 250 | |
In Appendix 2, the agricultural products that may be subject to the Special Agricultural Measure by Venezuela, as well as the level of activation of the Measure, are found in tons. The products and their activation level are as follows:
2.9.
| Description | Activation Level (Tonnes) | |
| potatoes (potatoes) fresh or chilled | 20,000 | |
| Decaffeinated | 200 | |
| tinting or spraying | 420 | |
| starch | 2.110 | |
| (refining sugar) | 18,000 | |
| "Ketchup" and other tomato sauces | 730 | |
| Salsa Mayonnaise | 1,150 |
Dispute Resolution Mechanism
The purpose of this Annex is to establish the rules governing specific consultations and mechanisms intended to resolve disputes that may arise between the Parties, in the light of the interpretation or application of the agreement.
The stages of the dispute settlement mechanism are as follows:
-Direct Technical Queries
-Mediation of the Administrative Commission
-High Level Mediation
-Expert Group.
The stage of the Expert Group contains the basic elements of dispute resolution at the level of trade agreements, such as the possibility of submitting a case to consideration by a group of an arbitration nature for situations arising from the application of the disciplines provided for in this Treaty and eventually the suspension of trade concessions resulting from this instrument. In this sense, it offers the necessary guarantees to protect the commercial interests of Colombia.
Finally, this annex determines that, without prejudice to the provisions of the text of the Agreement, any Party may, by means of written communication addressed to the Secretary General of the Aladi, without prejudice to the text of the Agreement, state that it will apply it provisionally, until it complies with the formalities necessary for its incorporation into its domestic law.
The negotiation of the Partial Reach Agreement with Venezuela and its subsequent subscription were developed in accordance with the principles enshrined in the Colombian Political Constitution. From this perspective, the constitutional principles on which the negotiation and subsequent subscription of the agreement were founded will be analyzed.
3.1. Equity
The principle of equity has important references in international law.
The doctrine and case-law[5] consider that the principle of equity is part of the legal principles of international law and its observance is necessary to ensure that the application of this order is equitable[6].
Deepening the content of the concept of equity, it can be said that it refers to natural justice, as opposed to the letter of positive law[7], others refer to it as the set of principles that refer to what is fair and correct, and/or that allow to correct or supplement the law in its application or use in particular circumstances[8]. In the specific case of the treaties, it could then be argued that the same refers to the balance between the benefits of the wrapped parts, in terms of material justice.
The content and scope of the principle of equity in the framework of the negotiation and subscription of trade agreements has been the subject of analysis by the Constitutional Court on several occasions. The Constitutional Court has established that bilateral and multilateral treaties in which the benefits are only for one of the States parties cannot be conceived; or that certain concessions operate in favor of a State and to the detriment of another. On the contrary, under the principles of fairness and reciprocity, international trade agreements should allow for the mutual benefit of the Member States. This principle is understood as the principle of mutual advantages:
" Reciprocity must be understood in two ways, a strict one, which is explained as the demand for advantages in order to give concessions. In its broad sense, which can be described as "multilateralized reciprocity", it is accepted that all preference will be extended to all participants, thus creating a mutually beneficial relationship between each of the participants and the SGPC System. as a whole. (Number 1 of item 9or. SGPC Agreement) "[9].
On the other hand, while there are no concrete definitions of jurisprudential origin, it can be concluded that the notion of equity is very close to reciprocity, and in the particular context of the treaties it could be preached that they are complementary and inseparable. The above is evidenced by what was established by Judgment C-864 of 2006, M. P doctor Rodrigo Escobar Gil, in which the Constitutional Court refers to the principle of reciprocity as follows:
"In relation to the principle of reciprocity provided for in the same Superior precept, it is appropriate to note that the obligations assumed by the States Parties under this Agreement of Economic Complementation are mutual correspondence and do not bring an unfavorable or inequitable condition for any of them[10]. Precisely, the clear, unequivocal and timely determination of the conditions and requirements to qualify the origin of a product or service as "originating" or "precedent" of the Member States, as set out in article 12 and in Annex IV to the said Agreement, is an essential element for guaranteeing the said principle of reciprocity, since it prevents the granting of tariff preferences to goods from countries other than signatories that are not granting any commercial benefit ". (Subrays out of text).
In this regard, the Court has reiterated on multiple occasions that if a treaty guarantees mutual advantages for the parties, then it develops the principles of fairness and reciprocity:
" ... the Court considers that the treaty being reviewed imposes commitments on the basis of the powers and balanced benefits that both parties benefit from, which is in line with the mandate of the internationalisation of the Colombian foreign relations, on the basis of equity, reciprocity and national convenience contained in article 226 of the Constitution and with the article 9or which commands foreign relationships the State is based on national sovereignty, on respect for the self-determination of peoples and on the recognition of the principles of international law accepted by Colombia, which demonstrate several articles of the Agreement "[11].
... " This is a formula of international trade that, precisely, seeks to guarantee fairness and reciprocity in the granting of tariff benefits among the states that subscribe. trade liberalisation agreements, in particular in the light of the fact that those countries have concluded other agreements of the same character with third countries "[12].
In this regard, the Court has recognized that differences in the levels of development of the economies of the States parties to a free trade or economic integration treaty are materialized, for example, with different deadlines of relief in line with the levels of sensitivity and development of economic sectors within each country.
A weighted reading of the treaty in the light of what the Constitutional Court has stated on principle of equity, in the particular case, makes it possible to affirm that the AAP between Colombia and Venezuela fully complies with the principle of equity in the terms described in the Political Constitution of Colombia, since all the negotiated provisions are favorable and equitable for the two Parties.
3.2. Reciprocity
In accordance with this principle, trade agreements must contain conditions which allow for the mutual benefit of the Member States. No bilateral and multilateral trade agreements can be devised in which the benefits are for one of the Member States in return for little or nothing; or that certain concessions operate in favour of one State and to the detriment of another State. The Court has said:
" In regard to the content of the agreement, the Court concludes that the principles of reciprocity, equity and national convenience are not unknown in it. On the one hand, the commitments assumed are equivalent and do not, in any way, reflect a disproportionate treatment of any of the parties "[13]
Since its inception, the jurisprudence of the Constitutional Court has referred to the principle of reciprocity. In effect, in the 1992 Judgment C-564 , which studied the constitutionality of the Evidatory Law of the Treaty through which the Global System of Trade Preferences was adopted, the Constitutional Court indicated that in the case of negotiations for economic complementation agreements, this principle is understood as the principle of mutual advantage:
"Reciprocity must be understood in two ways, a strict one, which is explained as the demand for advantages in order to give concessions. In its broad acceptance, which can be described as "multilateralized reciprocity", it is accepted that all preference will be extended to all participants, thus creating a mutually beneficial relationship between each of the participants and the System SGPC as a whole. (Number 1 of item 9or. SGPC Agreement) "[14]. (Out-of-Text Subrays).
According to the criteria of the Constitutional Court mentioned above, in the international treaties that Colombia will hold, a system of mutual concessions and correspondences must be developed, thus ensuring that the obligations agreed upon are reciprocal and of imperative compliance for the parties. On the subject in the recent C-864 Statement of 2006, the Constitutional Court said the following:
" In relation to the principle of reciprocity provided for in the same Superior precept, it is important to note that the obligations assumed by the States Parties under this Agreement of Economic Complementation keep a mutual correspondence and do not bring an unfavorable or inequitable condition for any of them[15]. Precisely, the clear, unequivocal and timely determination of the conditions and requirements to qualify the origin of a product or service as "originating" or "precedent" of the Member States, as provided for in Article 12 and in the Annex IV of the said Agreement is an essential element in guaranteeing the said principle of reciprocity, since it prevents the granting of tariff preferences to goods from countries other than signatories which are not granting any benefit. commercial ".
The AAP between Colombia and Venezuela collects the principle of reciprocity as the Constitutional Court has developed, since the obligations assumed by both countries preserve a mutual correspondence and do not bring about a condition unfavourable or inequitable to either party. In particular, the agreement contains rules aimed at allowing effective access to the markets of the two countries. That is, the goods and services that are exported must comply with the condition of being "originating" or "sourced" from the other member country, according to the rules and procedures of origin negotiated with Detail and care, as reflected in Chapter Four of the Agreement containing the "Rules of Origin", in order to ensure that the different products and services that are exported are subject to tariff relief, as explained in detail later in this writing.
3.3. National Convenience Under the principle of national convenience enshrined in Articles 150 (numeral 16), 226 and 227 of the Political Constitution, the Government in the internationalization of the relations of the country must consult the interests of the Nation and the general interest. In compliance with this principle, the agreement under study is aimed at the search for prosperity and for the improvement of the living conditions of the inhabitants of the entire Colombian territory.
Additionally, trade agreements like the one discussed here are important pieces to achieve sustained economic growth in Colombia, which is necessary to reduce unemployment and poverty. This international instrument, together with the others that have been negotiated by Colombia and those that can be negotiated in the future, complements other economic policy decisions and helps to leverage the growth that the country is seeking through two paths: the first, by the expansion of trade and, second, by the attraction of foreign investment.
When referring to the principle of national convenience, the Constitutional Court in Judgment C-864 , 2006 (M.P. Dr. Rodrigo Escobar Gil), expressed the following:
" Similarly, it argues that the present international instrument abides by the principles of equity, reciprocity and national convenience, as set out in article 226 of the Constitution and which-in accordance with the settled case law of this Corporation-must inform the work of promoting international economic relations, which implies that the obligations established through these documents are reciprocal and that both the government and the Congress have concluded that the Nation will benefit from the agreement" (underscores out of text).
The Partial Outreach Agreement signed with Venezuela, in addition to complying with these general objectives and objectives, is highly desirable for the country as this agreement will facilitate the consolidation of a historic, long and growing tradition. trade between the two Latin American countries.
For the above considerations, the AAP between Colombia and Venezuela is in line with the constitutional principles of reciprocity, equity and national convenience.
3.4. Internationalisation of economic relations and integration with Latin America
Article 226 of the Political Constitution establishes in the head of the State the duty to promote economic, social and ecological relations. Likewise, article 227 of the Political Constitution establishes in the head of the State the duty to promote economic, social and political integration and, in particular, integration with the countries of Latin America and the Caribbean. The Constitutional Court has interpreted the scope of these two provisions in the following terms:
"Article 226 of the Constitution expressly commits the State in promoting" the internationalization of political, economic, social and ecological relations on the basis of equity, reciprocity and national convenience, "while 227 authorizes" economic, social and political integration with other nations "[16].
Later in the 2007 C-155 Statement[17], the Court ordered the following:
" The Political Constitution of 1991 was not alien to the integration of the Colombian State into the international order. Thus, the Preamble and articles 9or and 227 point out that economic, social, and political integration will be promoted with the other States, (...).
In the same sense, article 226 ibidem states that the State will promote the internationalization of political, economic, social and ecological relations. (...) ".
The previous jurisprudential references make it possible to conclude that the Political Constitution commits the State in promoting the internationalization of political and economic relations, as well as in the promotion of integration processes in the political, economic and social fields.
The Partial Reach Agreement with Venezuela is a development of the constitutional mandates of internationalization of social, economic and ecological relations and the economic, social and political integration of Colombia with other nations.
In this context, the AAP with Venezuela is an express manifestation of the constitutional mandate regarding the internationalization of political, economic and social relations with the other nations, in particular with the nations
3.5. Essential aims of the social rule of law
The AAP between Colombia and Venezuela is an international instrument suitable for making effective the essential aims of the Social State of Law as it contributes to promoting general prosperity (article 2or C.P.) and improving the quality of life of the population (article 366 C.P.).
From this perspective, general prosperity as an essential end of the rule of law, corresponds to the obligation of the State to promote the well-being of the entire population. In that sense, the Constitutional Court has stated the following:
" OurCharter interprets the obligation to make the improvement of the quality of life of the associates, a central purpose of the Colombian State. Thus, Preamble and Articles 1or and 2or higher, provide for the validity of a fair order in which the rights of persons are protected by the authorities and respected by the other citizens. In the same way, the Constitution places a special emphasis on the financial role of the State in the economy, through the law, so that, through different actions, a better quality of life is sought. Within these actions, it is important to emphasize the duty of regulating the quality of goods and services provided to the community, the rationalization of the economy and the fulfillment of the social objectives of the State, in particular the solution of the unmet needs of health, education, environmental sanitation and drinking water. If the improvement of the quality of life is one of the main goals of the Colombian State, then the protection and care of the ecological conditions are the essential pillar on which all the actions that to this effect must be placed implement "[18]. (Out-of-Text Subrays).
This essential end of the State is intimately linked to the objective that must guide the conclusion of international treaties of free trade and economic integration: to seek to improve the living conditions of all Colombia. Therefore, the Constitutional Court in Judgment C-178 of 1995 (M.P. Dr. Fabio Moron Diaz) that declared the exequability of the Free Trade Agreement with Mexico and Venezuela, recognized the instrumentality of the trade agreements for the achievement of the essential purposes of the State:
" Examined the content of the Treaty approved by Law 172 of 1994, it is found that the rules of organization, operation, purpose and programmatic objectives of a international agreement linking the Colombian State, within the aforementioned framework of multilateral regulations constituted by the treaties of Montevideo and the GATT and now of the WTO, to two friendly and neighboring powers, as wants to be part of the Latin American community of nations; in addition, in quite a few The present instrument of international law is in accordance with the provisions of the Political Charter, since, in any case, the agreement in the policies of internationalisation and modernization of the economy is in conformity with the provisions of the Political Charter. as the contribution to the expansion of world trade, the development and deepening of coordinated action and economic relations between countries and the impetus of Latin American integration to strengthen friendship, solidarity and cooperation among peoples, thedevelopment, the expansion of world trade, and the international cooperation, creating new employment opportunities, improving working conditions and living standards, safeguarding public welfare, as well as ensuring a predictable business framework for the planning of activities The European Commission, in its report on the development of the European Community's energy policy, will be able to support the efforts of the European Union to promote the development of the European Community's economic and social policy. transparency and more favoured nation, are committed which are fully supported in provisions of the Constitution, not only in the part of the constitutional values that appear in the Preamble of the Political Charter, but in that of the essential ends of the State and in the economic and social rights of the people". (Out-of-text subrays).
Policies to celebrate treaties and agreements of a commercial nature help to promote a development cycle based on the increase in trade flows, which increases the demand for national products, generating a high level of impact on the generation of new jobs, on the well-being of the population and on poverty reduction.
It should also be remembered that this kind of trade treaty also promotes and encourages free competition and private initiative, as well as the peaceful coexistence of these rights with others that may be in tension, as explained in the length of this writing.
In the particular case at hand, the AAP between Colombia and Venezuela promotes the essential end of the state of promoting general prosperity by being an instrument of economic integration that responds to the global dynamics of celebrating this kind of (a) to strengthen the country's productive and commercial channels with a view to improving its exportable supply and to promote free economic competition in the territory of both Member States, which favours the said essential end of the Status.
According to the foregoing, the agreement with Venezuela is adjusted to Article 2or the Constitution for it seeks to ensure the effectiveness of the principles, rights and duties enshrined in the Constitution. the Political Constitution. Accordingly, this agreement develops the essential aims of the State related to the promotion of general prosperity, the improvement of people's living conditions, and the effectiveness of constitutional rights.
3.6. National sovereignty
Article 9or the Political Constitution states that the state's foreign relations must be based on national sovereignty. The Constitutional Court in Judgment C-1189 of 2000 (M.P. Carlos Gaviria Díaz) defines "sovereignty" as independence, the latter understood as the power to exercise, within a territory and over its inhabitants, the functions of the State.
In Judgment C-621 of 2001, the Constitutional Court specified that in exercising its sovereign power, States can freely accept reciprocal obligations at the international level. In the words of the Constitutional Court:
" Thus understood, sovereignty in legal sense confers rights and obligations for states, who enjoy autonomy and independence for the regulation of their internal affairs, and can accept freely, without impositions Foreign, in their status as equal subjects of the international community, reciprocal obligations aimed at peaceful co-existence and the strengthening of cooperative and mutual aid relations. "[19].
At the same time, the Constitutional Court was even more explicit in stating that the international agreements the State holds are a manifestation of its sovereignty.
In this understanding, the international commitments acquired under these agreements constitute an "act of sovereignty":
" In the modern and contemporary world, the international legal balance is part of the assumption that the internal orders of the States are not absolute, since there is a general interest in each of them, there is also an international general interest, founded on the universal common good. It is this interest that seeks to be carried out through the pacts or that are held under the exercise of sovereignty, as an attribute of each of the States: the international commitment is thus an act of sovereignty of the State that is linked, that is, it is the expression of the independent will of each state that it intends to engage as legal entity on the international plane
The ability to exercise sovereignty manifests itself precisely in the ability to engage, and, obviously, to respond to it. In other words, the international pact is, as has been said, a manifestation of the sovereignty of the State, an exercise of sovereignty that brings international responsibility as a consequence. If there is responsibility on the plane of man on the basis of freedom, on the international level there is responsibility for the exercise of sovereignty, because the State that commits itself has exercised its self-determination. (...) "[20] (emphasis off text).
In accordance with the foregoing, the governments of Colombia and Venezuela have committed themselves, on a voluntary and free basis, to comply with reciprocal obligations contained in the agreement, as an express manifestation of national sovereignty, by virtue of the the agreement does not contain any kind of obligation involving the transfer of sovereignty to a supra-state body on matters of macroeconomic, sectoral or much less social policy.
In this understanding, the Partial Outreach agreement with Venezuela preserves the Colombian State's broad powers to direct and intervene in economic, political and social matters, in the exercise of its sovereign power.
For the above considerations, the agreement is based on national sovereignty in compliance with Article 9or the Political Constitution.
3.7. Respect for the rights of ethnic groups
As enshrined in article 330 of the Political Constitution, the territory of indigenous communities is an essential part of their identity and culture. decisions on the exploitation of resources in territories belonging to ethnic minorities or indigenous groups, the National Government is obliged to facilitate the participation of the representatives of the respective communities. In this regard, the Constitutional Court has said the following:
" The exploitation of natural resources in indigenous territories must be made compatible with the protection that the State must dispense with the social, cultural and economic integrity of indigenous communities, It sets a fundamental right for the community to be linked to its subsistence as a human group and as a culture. To ensure this subsistence, it is planned, in the case of the exploitation of natural resources in indigenous territories, the participation of the community in the decisions that are taken to authorize this exploitation. In this way, the fundamental right of the community to preserve integrity is guaranteed and effective through the exercise of another right which also has the character of fundamental, as is the right of community participation in the adoption of these decisions. "[21] (underscores out of text) The AAP does not provide for any provision that would entail exploitation of natural resources on the territory of ethnic groups.
The agreement in none of its provisions enshrines limitations or impositions that may affect the constitutional right to the ethnic and cultural diversity of the Colombian nation, nor does it affect the cultural or spiritual values of the those villages.
In conclusion, as has historically occurred with the other trade agreements similar to this agreement concluded on the basis of the Political Constitution, the application of the agreement does not imply an affectation of any of the rights of the different ethnic groups in Colombia.
In conclusion, the Commercial Nature Outreach Agreement between Colombia and Venezuela, which is being submitted to the Congress today, meets the following purposes:
-- It represents a fundamental step in the consolidation of the process of economic integration of the Latin American countries initiated in 1960, through the expansion of their markets and the expansion of their reciprocal trade.
-- Consolid, reactive and energizes historic bilateral trade between the two nations and legally frames it.
-- A fundamental market for Colombian exporters. In 2008 Venezuela was the second destination of our exports to the world, in 2011 it ranked seventh.
-- Genera a political incentive to advance the process of trade integration with Venezuela.
-- Respond to the constitutional mandate of to promote the integration of the Latin American community on the basis of equity, reciprocity and convenience.
-- It is an ideal instrument for the development of the constitutional mandate of internationalisation of political, economic, social and ecological relations, on the basis of equity, reciprocity and national convenience.
-- It develops the essential aims of the State provided for in the Constitution by promoting the general prosperity of the population.
-- It is an express manifestation of national sovereignty.
-- Meet the mandate set out in Law 1450 of 2011, "National Development Plan 2010-2014 Prosperity for All", to advance within the area of relations with the countries of the region, the works necessary in the design and negotiation of a new legal framework that will regulate relations with Venezuela from April 2011, when the tariff preferences will expire in the framework of the CAN.
-- Manhas and deepens the current historical heritage of trade flows.
-- Guarantees that there are different barriers to the tariff on goods imports from the other country.
-- After the agreement takes effect, it is planned to begin negotiations to implement a local currency payment mechanism and an international freight and passenger transport agreement between the Republic of Colombia and the Republic of Colombia. Venezuela's Bolivarian.
In this context, the National Government through the Minister of Foreign Affairs and the Minister of Commerce, Industry and Tourism, requests the honorable Congress of the Republic, to approve the bill through which the "Agreement of Partial Outreach of Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela", signed in the city of Caracas, Venezuela, at twenty-eight (28) days of the month of November of two thousand eleven (2011) and its six annexes with their respective appendices, signed in the city of Cartagena, Colombia, at fifteen (15) days of the month of April two thousand twelve (2012).
Of the honorable Senators and Representatives,
MARIA ANGELA HOLGUIN HANG,
Minister of Foreign Affairs.
SERGIO DIAZ-GRANADOS GUIDA,
Minister of Commerce, Industry and Tourism.
EXECUTIVE BRANCH OF PUBLIC POWER
PRESIDENCY OF THE REPUBLIC
Bogotá, D. C., October 3, 2012
Authorized. Submit to the consideration of the honorable Congress of the Republic for the constitutional effects.
(Fdo.) JUAN MANUEL SANTOS CALDERÓN.
The Foreign Minister,
(Fdo.) Maria Angela Holguin Cuellar.
DECRETA:
ARTICLE 1o. Approve the "Partial Scope Agreement of Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela", signed in Caracas, Republic of Venezuela, on 28 November 2011, and their six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012.
ARTICLE 2o. In accordance with the provisions of Article 1 of Law 7ª of 1944, the " Commercial Nature Outreach Agreement between the Republic of Colombia and the Republic of Colombia Bolivarian of Venezuela, signed in Caracas, Republic of Venezuela, on 28 November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as provided for in Article 1 of the law is approved, will oblige the State from the date on which the international link is perfected with respect to the same.
ARTICLE 3o. This law governs from the date of its publication.
Dada en Bogotá, D. C., a los ...
Presented to the honorable Congress of the Republic by the Minister of Foreign Affairs and the Minister of Commerce, Industry and Tourism.
The Foreign Minister,
MARIA ANGELA HOLGUIN HANG.
The Minister of Commerce, Industry and Tourism,
SERGIO DÍAZ-GRANADOS GUIDA.
ACT 424 , 1998.
(January 13)
by which the follow-up to the international conventions signed by Colombia is ordered.
The Congress of Colombia
DECRETA:
Item 1or. The National Government through the Foreign Ministry will submit annually to the Senate and Senate Foreign Relations Committees, and within the first thirty days of the legislative period, which begins every 20 years. July, a detailed report on how the existing International Conventions signed by Colombia with other States are being complied with and developed.
Article 2or. Each dependency of the National Government responsible for implementing the International Treaties of its competence and requiring reciprocity in them, will transfer the relevant information to the Ministry of Foreign Affairs and the Ministry of Foreign Affairs. Second.
Item 3or. The full text of this law shall be incorporated as an annex to any and all International Conventions that the Ministry of Foreign Affairs presents to the Congress.
Article 4or. This law governs from its enactment.
The President of the honorable Senate of the Republic,
AMYLKAR ACOSTA MEDINA.
The Secretary General of the honorable Senate of the Republic,
PEDRO PUMAREJO VEGA.
The President of the honorable House of Representatives,
CARLOS SQUIRLA BALLESTEROS.
The Secretary General of the honorable House of Representatives,
DIEGO VIVAS TAFUR.
COLOMBIA-NATIONAL GOVERNMENT
Publish and execute.
Dada en Santa Fe de Bogota, D. C., on January 13, 1998.
ERNESTO SAMPER PIZANO.
The Foreign Minister,
MARIA EMMA MEJIA VELEZ.
FOREIGN MINISTRY
EXECUTIVE BRANCH OF PUBLIC POWER
PRESIDENCY OF THE REPUBLIC
Bogotá, D. C., October 3, 2012.
"Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela", signed in Caracas, the Republic of Venezuela, the twenty-eight (28) of November of two thousand eleven (2011) and its six annexes to their respective appendices, signed in Cartagena, the Republic of Colombia, 15 (15) in April, two thousand twelve (2012), as well: Annex I "Preferential Arancelary Treatment"; Annex II "Origin Regime"; Annex III "Technical Regulations, Conformity Assessment and Metrology";
Annex IV "Sanitary, Zoosanitary and Phytosanitary Measures"; Annex V "Commercial Defense Measures and Agricultural Special Measure"; Annex VI "Dispute Settlement Mechanisms".
Authorized. Submit to the consideration of the honorable Congress of the Republic for the constitutional effects.
The Foreign Minister,
(Fdo.) Maria Angela Holguin Cuellar.
EXECUTIVE BRANCH OF PUBLIC POWER
PRESIDENCY OF THE REPUBLIC
Bogotá, D. C., October 3, 2012.
Authorized. Submit to the consideration of the honorable Congress of the Republic for the constitutional effects.
(Fdo.) JUAN MANUEL SANTOS CALDERÓN
The Foreign Minister,
(Fdo.) Maria Angela Holguin Cuandllar.
DECRETA:
ARTICLE 1o. Approve the "Partial Scope Agreement of Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela", signed in Caracas, Republic of Venezuela. Bolivarian of Venezuela, on November 28, 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on April 15, 2012.
ARTICLE 2o. In accordance with the provisions of Article 1 of Law 7ª of 1944, the " Commercial Nature Outreach Agreement between the Republic of Colombia and the Republic of Colombia Bolivarian of Venezuela ", signed in Caracas, Bolivarian Republic of Venezuela, on November 28, 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on April 15, 2012, which by the Article 1o of this law shall be approved, shall bind the State from the date on which the link is perfected international regarding the same.
ARTICLE 3o. This law governs from the date of its publication.
The President of the honorable Senate of the Republic,
Juan Fernando Cristo Bustos.
The Secretary General of the honorable Senate of the Republic,
GREGORIO ELJACH PACHECO.
The President of the honorable House of Representatives,
HERNAN PENAGOS GIRALDO.
The Secretary General of the honorable House of Representatives,
JORGE HUMBERTO MANTILLA SERRANO.
ACT 1722 OF 2014
(July 3)
by means of which the "Agreement of the Partial Outreach of Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela", signed in Caracas, the Bolivarian Republic of Venezuela, is approved on 28 June. November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I "Preferential tariff treatment". Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism".
Having present that the Constitutional Court, by the Autos number 175 of May 6, 2015 and number 576 of December 10, 2015-Expediente LAT-435, noted:
" (...) it should be noted that the presidential sanction, as it refers to the same approving act subject to analysis, will not contract the change in the identification of the law. In this regard, the Legal Secretariat of the Presidency of the Republic, when exercising the jurisdiction provided for in Article 8 of Decree 2719 of 2000, will retain the number of Law 1722 of July 3, 2014. This is because, as this corporation has maintained, the vice-healing of a vice in the legislative process by the congress does not contract any modification regarding the nominal identification of the bill and the approval law. As a result, Law 1722 of July 3, 2014 is sanctioned here. "
COLOMBIA-NATIONAL GOVERNMENT
Publish and comply.
Execute, upon review of the Constitutional Court, pursuant to Article 241-10 of the Political Constitution.
Dada en Bogotá, D. C., a 1o de marzo de 2016.
JUAN MANUEL SANTOS CALDERÓN
The Deputy Foreign Minister of the Ministry of Foreign Affairs, in charge of the functions of the Office of the Minister of Foreign Affairs,
PATTI LONDONO JARAMILLO.
The Minister of Commerce, Industry and Tourism,
CECILIA ALVEZ-CORREA GLEN.
Reference: LAT-435 file
Review of the constitutionality of Law 1722 of July 3, 2014 "by means of which the" Agreement of partial scope of commercial nature between the Republic of Colombia and the Republic of Colombia is approved " Bolivarian Republic of Venezuela, signed in Caracas, Venezuela, on November 28, 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows:
Annex I "Preferential Tariff Treatment". Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism" ".
Magistrate Rapporteur:
MARIA VICTORIA STREET CORREA
Bogota, D. C., six (6) May two thousand fifteen (2015)
The Full Court of the Constitutional Court, in compliance with its constitutional powers and the requirements and procedures laid down in Decree 2067 of 1991, has proposed the following
AUTO
Due to its extension, the text of the international instruments under control and of its approval law 1722 of 2014, by means of which the " Partial Reach Agreement of Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela, signed in Caracas, Venezuela, on 28 November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I ' Tariff treatment preferential '. Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism"is presented in an attached document (ANNEX 1). The full version of Law 1722 of 2014, which includes the text of the Agreement, the six (6) Annexes and their respective appendices, and the explanatory memorandum of the Bill, is published in the Official Journal of the European Union. Officer No. 49.201 of 3 July 2014.
I. BACKGROUND
Based on the provisions of article 241-10 of the Political Charter, by trade in the General Secretariat of this Corporation, the eight (8) July of two thousand fourteen (2014), the Legal Secretariat of the Presidency of the Republic referred authentic copy of Law 1722 from three (3) July of two thousand fourteen (2014), for the purposes of its constitutional review.[1]
The Substantiating Magistrate, by order of twenty-two (22) of July of two thousand fourteen (2014), focused the knowledge of the process and arranged the practice of tests. Subsequently, the car of twenty-six (26) of August, required to make up the missing tests. The two (2) October of two thousand fourteen (2014), ordered to continue the procedure and, consequently, to set the process by the term of 10 days in order to allow the citizen intervention, as well as to give to the Attorney General of the Nation for the corresponding concept and communicate the initiation of the process to the President of the Republic, to the President of the Congress of the Republic and to the Ministers of Justice and Law; Commerce, Industry and Tourism; Finance and Public Credit; Agriculture and Rural Development and External Relations, to the Directorate of Taxation and Customs National-DIAN-to the Director of the National Institute of Drug and Food Surveillance-INVIMA-, to the Director of the National Planning Department and to the Superintendent of Industry and Commerce.
Fulfilled the procedures provided for in Decree 2067 of 1991, it is necessary for this Court to decide on the exilibility of the treaty, its annexes and the law that approves them.
II. TEXT OF THE CONVENTION THAT IS REVIEWED AND OF ITS APPROVAL LAW
Due to its extension, the text of the international instruments under control and of its approval law 1722 of 2014, by means of which the " Partial Reach Agreement of Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela, signed in Caracas, Venezuela, on 28 November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I ' Tariff treatment preferential '. Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism"is presented in an attached document (ANNEX 1).
III. INTERVENTIONS
National Tax and Customs Directorate -DIAN-
1. On its own initiative, twenty (20) October of two thousand fourteen (2014)[2] the National Tax and Customs Directorate-DIAN-requested the Court to declare the constitutionality of Law 1722 2014.
Considers that the agreement seeks to establish a preferential tariff treatment for imports of originating products, based on the historical trade relations between Colombia and Venezuela and the consolidation of the economic integration between the two countries. It stresses that the Agreement contains a set of trade defence measures, in order to ensure the safeguarding of national production of any harmful effects on its application.
Highlights that the instrument provides for rules aimed at ensuring reciprocity of tariff benefits, allowing effective access for the markets of the two countries. For the DIAN, "the Trade Agreement between Colombia and Venezuela reflects the principles of fairness and reciprocity, as the Constitutional Court has developed, because in addition to allowing the mutual benefit of the states members, the obligations assumed by both countries to preserve a mutual correspondence and do not bring with them an unfavorable or inequitable condition for either party"[3].
Ministry of Commerce, Industry and Tourism
2. Cecilia Alvarez-Correa Glen, as the holder of this Portfolio, intervened to defend the constitutionality of the law under review.[4]
Presents a document divided into three sections: (i) formal examination; (ii) cross-cutting aspects relating to the study of treaty constitutionality and, (iii) constitutional analysis of the provisions of AAP.C [Partial Outreach Agreement Commercial nature]. In the first part, it takes a brief account of the procedure that took place from the negotiation and subscription of the Agreement until its approval in the Congress of the Republic to conclude that all the required requirements for the process of a law approving the international treaty, concluding that, in that sense it is adjusted to the Constitution.
In the second section, the concept emphasizes the legal aspects of the Agreement. According to what is stated in this part of the document, the instrument subject to constitutional control is intended to "and strengthen the commercial relationship between Colombia and Venezuela, whose regulations constituted the the Cartagena Agreement for more than 30 years. This relationship was affected by the complaint that Venezuela made of the Cartagena Agreement. From this AAP.C [Commercial Nature Outreach Agreement] this regulation is restored, which will allow us to continue promoting the commercial exchange of goods and the relations of friendship and cooperation between these countries"[5]. In this order of ideas, the Agreement develops several principles of constitutional order such as equity, equality, reciprocity and constitutional expediency and complies with important state purposes such as promoting general prosperity and improvement of the quality of life of the population.
Adds the concept that the instrument under study seeks to protect consumer rights by allowing them to have greater access to goods and services that can only be given by promoting free trade between the two countries. It clarifies that none of the provisions of the agreement entail exploitation of natural resources on the territory of ethnic groups or limitations or impositions affecting the rights to ethnic and cultural diversity. Therefore, it was not necessary to carry out any type of prior consultation for the approval of the law.
In the third paragraph, the Minister refers to the constitutional analysis of each of the provisions of the Agreement, concluding that these are in accordance with the Constitution and the jurisprudence of this Corporation in the field of treaties.
For the Ministry, the principles contained in the preamble of the Agreement are aimed at strengthening trade relations and Latin American economic integration, and specifically with Venezuela. The chapter first creates the conditions for preferential treatment of imports of products between Colombia and Venezuela and the mechanisms for the free movement of products. Concludes on this chapter that " is in line with the Constitution, since the creation of preferential treatment for imports of products in order to promote economic and productive development through the strengthening of the exchange fair balanced and transparent trade between Colombia and Venezuela constitutes a development of the objectives enshrined in the article 9, 226 and 227 of our Policy Letter"[6].
On chapters two and Annex one of the Agreement, they seek to avoid creating inequitable conditions of competition that could affect local production and generate stable and predictable conditions for investors. According to the concept, these provisions are based on items 13, 100 and 227 Political Charter. When referring to Chapter 3 and Annex 2, where the criteria for classification of origin of the goods are established, it ensures the concept that " [e] n previous opportunities the Constitutional Court has found adjusted to the Political Constitution the rules of origin agreed in the trade treaties (...) the Court considered on that occasion, that the rules of origin allow the goods originating from the other party signataria to enjoy the benefits of the liberalization the tariff agreed in the FTA and at the same time identify those products that cannot be beneficiaries of such benefits"[7].
In relation to chapters four and five and annexes three and four, the Ministry notes that it seeks to establish criteria and guidelines for the protection of safety, life, human and animal health, the environment and consumers. These guidelines are aimed at ensuring that the respective technical regulations and evaluation procedures allow for a better operation of the Agreement and the fulfilment of its constitutional purposes.
Highlights the importance of Chapter 6 and Annex 5 in so far as it sets out measures to safeguard domestic production of the potential harmful effects of imports under unfair practices and inequitable trade. It states that[l] o trade agreements such as AAP.C with Venezuela, which consign rules on Trade Defense that include provisions on the adoption of safeguard, countervailing and anti-dumping measures, constitute a development of the constitutional mandate related to economic integration, contained in article 226 of the Fundamental Charter"[8]. It states that the Constitutional Court has given a favourable opinion on this type of measure on previous occasions.
Finally, it refers to the final chapters concluding that they are measures for the proper implementation of the Agreement and therefore of the constitutional purposes that this agreement contains.
Foreign Ministry
3. The Director of International Legal Affairs[9] of the Ministry of Foreign Affairs intervened to defend the constitutionality of the standards under study. The concept highlights the importance of this Agreement for bilateral relations between Colombia and Venezuela and as a regulatory framework for the commercial relationship between these two countries. In addition, it is part of the objectives of the National Development Plan 2010-2014 with respect to "to implement an internationalisation strategy to increase participation in the global market to stimulate the competitiveness of national production"[10].
Special emphasis is placed on the fact that the Agreement under study was provisionally applied under Decree 1860 of 6 September 2012. The provisional application of the Treaties is governed by Article 25 of the Vienna Convention and allows the application of a treaty before it is ratified. Additionally, article 224 of the Political Constitution provides that the President of the Republic may give provisional application to those treaties that are economic in nature and commercial, which does not prevent it from being referred to Congress for approval in any case.
Recalca the concept that there are two scenarios in which a treaty can be applied provisionally: "[e] l first, it is an exceptional case, in which a treaty is provisionally applied, before it has been approved by the Congress of the Republic and therefore has set out the constitutional procedure foreseen for the entry into force of this type of instrument. In this case, the President of the Republic has the power to apply it provisionally, provided that the treaty complies with two conditions, namely: (i) that the treaty is of an economic and commercial nature; and (ii) that it has been agreed in the of international bodies. // The second scenario, is the one in which it is sought to apply provisionally a treaty, that having dispensed the constitutional procedure for the manifestation of the consent of the State to be obliged, has not yet entered into force, in so much the other o Parties, by that time, have not met the internal requirements regarding their validity"[11].
For the Foreign Ministry, the Agreement under analysis complies with the two conditions required for the first of the scenarios set out: (i) it is a trade and economic treaty whose purpose is to determine the legal framework for trade. between Colombia and Venezuela and, (ii) was agreed in the scope of the Latin American Integration Association -ALADI-, an intergovernmental organization that promotes the expansion of the integration of the region.
The intervention continues to summarize the approval process in the Congress of the Republic, reaching the conclusion that all the required steps were taken. Finally, he warns thatin case the formulation of an interpretative declaration is considered, it is necessary for the Bolivarian Republic of Venezuela to accept this declaration so that it can be considered as an interpretation. If the wording of a unilateral declaration which excludes or limits the legal effects of any of its provisions is deemed necessary, it is necessary to bear in mind that this will require negotiation of the specified Agreement"[12].
Ministry of Finance and Public Credit
4. Through proxy[13], the Ministry of Finance and Public Credit, submitted written defending the constitutionality of the Law under review.
Divides its intervention into two parts, the first of which is related to the processing of Law 1722 of 2014 and the second, the material analysis of the norm. It concludes, that the bill exhausted the established procedure, the publications in the Congress Gazette were done in due form and the votes were unanimous.
In relation to the material analysis, it concludes that it is an Agreement whose purpose is consistent with the Constitution and based on the principles of "negotiation on equity and reciprocity, national convenience, internationalization of economic relations and integration with Latin America, essential ends of the Social State of Law, national sovereignty and respect for the rights of ethnic groups"[14].
Industry and Commerce Superintendence
5. By trade of twenty-one (21) of October of two thousand fourteen (2014)[15], the Coordinator of the Judicial Management Group of the Superintendence of Industry and Commerce presented the concept requesting to declare the Constitutional Agreement Partial Scope of Commercial Nature between Colombia and Venezuela, as well as its approval law. It clarifies in any case that it will refer in particular to Annex Three for being in direct relation to the functions of the Superintendence.
According to the concept, the annex number three, in which the obligation to develop, adopt and apply technical regulations, conformity assessment procedures and metrology is established, seeks the implementation of measures aimed at ensure the quality of exports, the protection of the health and the lives of people and animals, the preservation of the environment without this becoming a veiled form of discrimination in trade between countries.
Ministry of Agriculture and Rural Development
6. The Head of the Legal Advisory Office (e)[16] of the Ministry of Agriculture and Rural Development, referred to the Court for a declaration of the constitutionality of the Agreement with a partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela and its six annexes to their appendices.
According to the arguments put forward by the intervener, the Agreement and its annexes " respectedconstitutions, laws and commitments assumed by these countries in the different regional integration schemes of which both are part and in the bilateral agreements signed by each of them"[17]. It is an agreement that seeks to restore trade relations with Venezuela and which is a result of the commercial and productive development of both countries, where Colombia is particularly strong in the agricultural sector.
IV. CONCEPT OF THE NATION ' S ATTORNEY GENERAL
7. The Attorney General of the Nation, by concept No. 5850 of the thirteen (13) November of two thousand fourteen (2014), asked the Constitutional Court to declare the Constitution, both the Agreement and its respective annexes[18].
The Tax View first carried out an analysis of the pre-legislative stage of the Agreement, reaching the conclusion that it was carried out in accordance with the formalities required by the law of the Treaties. He subsequently carried out a study on the procedure that took place before the Congress of the Republic, which concludes that it was "respectful of the Political Constitution". He mentioned in particular the Conciliation Report that was made, taking into account that the text approved in the Plenary of the Senate of the Republic, had some errors of legal technique. The Accidental Commission, which produced the Conciliation Report, suggested to the two plenaries that the text approved in the House of Representatives Plenary, which was finally made and with respect to what it does not find, was accepted in its entirety. objection.
In relation to its material content, it stresses that the treaty aims to strengthen the integration and cooperation between the two countries. He affirmed that the Agreement conforms to the Constitution as long as it ", under conditions of equality, the exchange of products, while strengthening bilateral relations in trade matters, which are weakened as a result of the denunciation by Venezuela of the Cartagena Agreement (Andean Community) in April 22, 2006. Situation that, at the time, left without a commercial framework the relations of both countries and caused serious economic consequences"[19].
Concludes by pointing out that the Treaty is respectful of the sovereignty and independence of the Colombian State (articles 2, 4, and 9 Constitutional); develops a constitutional purpose as is the process of economic integration of Latin American countries and is based on reciprocity and the equity of states (article 226 and 227 Constitutional).
V. COURT CONSIDERATIONS
Constitutional Court Competition in the field of treaties and approved treaty laws.
Article 241 numeral 10 of the Constitution provides the Constitutional Court with jurisdiction to examine the constitutionality of international treaties and the laws of the the same. According to settled case law, this control is characterized by being (i) prior to the improvement of the treaty, but after the approval of the Congress and the government sanction; (ii) , as it must be sent directly by the President of the Republic to the Constitutional Court within six days of the government sanction; (iii) integral, to the extent that This Court must analyse both the formal and the material aspects of the law and the treaty, confronting them with all the constitutional text; (iv) has force of res judicata; (v) is a condition sine qua non for the ratification of the corresponding agreement; and (vi) it fulfils a preventive function, for its purpose is to guarantee both the supremacy of the Constitution and the fulfillment of the international commitments of the Colombian State.[20]
In compliance with this mandate, the Court conducts this examination in two ways: (i) control over the formal aspects of international treaties and their approving laws, and (ii) control of material validity.
The first is aimed at verifying the validity of the representation of the Colombian State in the processes of negotiation and the holding of the instrument; the competence of the officials in the negotiation and signing of the treaty, and, finally, of the compliance with the rules of the legislative procedure in the formation of the approval law in the Congress. For its part, the examination of the material validity seeks to confront the provisions of the international treaty that is reviewed and that of its approval law with the totality of the constitutional norms. This test should be based on legal aspects, without addressing issues of convenience, opportunity, utility and efficiency.[21]
Based on these considerations, the Court passes to examine the approving law and the convention of the reference.
Verifying compliance with procedural requirements in the treaty subscription and its approval law.
Such an examination includes the following aspects: (i) compliance with requirements in the negotiation and conclusion of the treaty; (ii) the passage of the approved law in due form; (iii) the conduct of the prior consultation with the ethnic groups, in case of that it is mandatory; (v) timely referral of the treaty and its approval law to the Constitutional Court.
1. Negotiation and conclusion of the Treaty
The review of this aspect implies verifying that those who signed the instrument under control and its corresponding annexes had competence for this, either because they have direct powers of representation of the Colombian State or have full powers for the effect. In addition, if the treaty or its annexes received executive approval from the President of the Republic and its referral to the Congress of the Republic was made available.
In writing at the Constitutional Court Secretariat on 30 July of two thousand fourteen (2014)[22], the Ministry of Foreign Affairs said that for the subscription of the " Commercial Nature Outreach Agreement between the Republic of Colombia and the Bolivarian Republic of Venezuela" and their respective annexes, did not require the issuance of Full Powers, since it was the President of the Republic, Juan Manuel Santos, who signed the Agreement on behalf of the Republic of Colombia on twenty-eight (28) November of two thousand eleven (2011). He added that in relation to the annexes, these were signed by the Chancellor on April 15 (15) of two thousand twelve (2012).
According to the provisions of Article 7o of the Vienna Convention on the Law of the Treaties of 196923], the Heads of State, Government and Foreign Ministers are deemed to represent the State, without the need for powers to accredit it. As a result, both the subscription of the main instrument and the six accompanying annexes were carried out in due form.
The three (3) October of two thousand twelve (2012), the President of the Republic, Juan Manuel Santos Calderón, imparted executive authorization and arranged to submit to the approval of the Congress of the Republic the Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela" and its six annexes. To this end, the Ministers of Foreign Affairs and Trade, Industry and Tourism presented to the Congress the Agreement and the bill approving it.[24]
2. Procedure conducted in the Congress of the Republic for the formation of Law 1722 of 2014
The laws approving international treaties must provide for the procedure of training provided for the ordinary laws, regulated in the articles 150 to 169 of the Charter and in the 1992 5 Act "For which the Congress Regulations are issued; the Senate and the House of Representatives". The only specific provision established in the Constitution for this type of legislation is that its procedure must be initiated in the Senate of the Republic, in accordance with the provisions of Article 154 final. It is also necessary to establish whether, by reason of its content, the procedure for prior consultation with ethnic groups should be brought forward, in accordance with Article 6.1 (a) of Convention 169 of the International Labour Organisation, standard constituent of the constitutionality block.
According to these provisions, it is up to the Court to verify the following aspects:
(i) Initiation of the passage of the approval law in the Senate of the Republic (art. 154 CP).
(ii) Publication of the bill before it is given in the respective commission (art. 157 No. 1 CP).
(iii) Approval in the first debate in the respective committees of the Senate and the House, and in the second debate in the plenary sessions of these corporations (art. 157 No. 2 and 3 CP).
(iv) Publish and cast the report prior to the four corresponding debates and the text approved in each of them (arts. 144, 156 and 157 Act 5th of 1992).
(v) Previous announcement in which you report the session in which the project discussion and vote will take place in each of the four corresponding debates. According to the final paragraph of article 160 CP (added by article 8 of Legislative Act 01, 2003).[25] This rule mandates that (1) the date of the vote on the draft law is previously announced; (2) the announcement of such a vote is taken in a separate session from the one in which it is submitted for approval; and (3) the vote shall take place on the day on which the vote was taken. announced.[26] The Court has further noted that it must be performed by the President of the respective legislative cell, or the Secretary, by instructions of the first.[27] In addition, while a specific sacramental formula is not required to make the announcement, if any expressions of the following should be used Clearly infer that the Congressmen are called and that it be done for a later session, that is, for "a pre-fixed and determined future date, or at least, determinable".[28]
(vi) That at the time of project approval in each of the four corresponding debates there was a decision quorum. In the case of bills approving international treaties, it applies the general rule provided for in Article 145 of the Constitution, according to which the presence of the majority of the the members of the respective committee or plenary.
(vii) Voting in due form in each of the respective debates. In this regard, the superior article 133 states that, except for the exceptions provided for in the law, the vote of the bills must be carried out in a way nominal and public.[29] Article 129 of Law 5th of 1992 (as amended by article 1or Law 1431 of 2011), sets out the hypotheses in which to make cash the principle of speed of procedures, this general rule may be excepted to support ordinary voting.[30] One of them, provided for in paragraph 16 of the above standard, is presented when there is unanimity on the part of the respective commission or plenary to approve or deny all or part of the In any case, the rule states that, even in such a case, the nominal and public vote will have to be taken at the request of one of the congressmen. Similarly, when this form of voting is used, the possibility of verifying that, at the time of the vote, there was a decision-making quorum and that the project was approved by the required majorities, must be ensured.[31] Both conditions require to comply with the provisions of Article 123 , number 4 of the 5th Act of 1992, according to which the vote is only valid when the number of votes cast coincides with the number of votes Congressmen present at this time.[32]
(viii) Approval in each of the respective debates by the corresponding majority rule . In the case of the laws approving international treaties, the approval of the majority of the votes of the assistants is required (simple majority), according to the article 146 CP.
(ix) Compliance with the gap between discussions rule provided for in Article 160 CP, according to which between the first and the second debate in each chamber must mediate a span of not less than eight (8) days, and between the approval of the project in one of the chambers and the initiation of the debate in the other, no less than fifteen (15) days shall elapse.
(x) That the reconciliation processhas been dispensed, in case there are discrepancies between the approved texts in the Senate and the House of Representatives. Publication of the text approved by the Senate and Chamber plenary (art. 161 CP).
(xi) The project processing has not exceeded two legislatures (art. 162 CP).
(xii) That the project receives presidential sanction and, in case of objections, that the corresponding procedure has been dispensed (arts. 165 to 168 CP).
The procedure is then examined under Bill 145 of 2012 Senate and 329 of 2013, in order to establish whether it was carried out in accordance with the above requirements.
2.1. Start of the procedure in the Senate of the Republic.
The compliance with this requirement is verified, since the bill was presented on 24 October (24) of two thousand twelve (2012) before the Secretariat of the Senate of the Republic by the Ministers of Foreign Affairs, Maria Angela Holguin, and Commerce, Industry and Tourism, Sergio Díaz-Granados.[33] There it was established as the Bill 145 of 2012 Senate.
2.2. Publication of the bill
The original text of the bill, along with the respective explanatory statement, was published in the Gazette of the Congress of Republic No. 734 of twenty-six (26) October of two thousand twelve (2012)[34].
2.3. First debate in the Senate's Second Permanent Constitutional Commission
2.3.1. Report on presentation. " Senators Carlos Emiro Barriga Penaranda and Edgar Alfonso Gomez Roman were appointed as rapporteurs, who gave their presentation on the twenty-five (25) April of two thousand thirteen (2013), which ends with the proposal to give the first debate to the project. The paper was published in the Gazette of Congress No. 230 of 2013[35]. In order to comply with paragraph 1 of article 156 of the Law 5th of 1992, the twenty-nine (29) of April of two thousand thirteen (2013) was given to the senators of the corresponding Gazette copy[36].
2.3.2. Advertisements. The 2012 Senate Bill 145 was announced twice for the first debate in the Senate's Second Committee. The first announcement was made in session of the seven (7) May of two thousand thirteen (2013)[37] "for discussion and voting of bills for the next session", and it was specified that this would be carried out " ", date corresponding to the fourteen (14) of May two thousand thirteen (2013). That day, a political control debate was held with the Minister of National Defense, which ended with a reserved session of the Commission, in which the projects contained in the Order of the Day were not discussed. At the end of this session the second announcement was made, indicating that their discussion would take place "on Wednesday, May 15 at 10:00 a.m., in this same enclosure"[38].
The announcements were made in accordance with the provisions of the final paragraph of article 160 constitutional (added by article 8 ) of the Legislative Act 01 of 2003), as soon as (i) were made in advance of the session at which the project was finally approved; (ii) in both cases the session for which the project was announced is clearly identified and, as will be examined (iii) the approval was carried out on the date fixed in the second notice.
2.3.3. Approval. As announced, the discussion and vote of the bill in the first debate took place in the session of the fifteen (15) May of two thousand thirteen of (2013), as stated in Act No. 32 of the Second Senate Committee, published in the Gazette of the Congress 738 of 2013.
2.3.3.1. At the time the project was approved, the decision quorum required in the article 145 above was counted. This is inferred from the fact that, at the moment before the vote on the draft was carried out, in response to the intervention of one of the members of the Commission, who warned of the risk of the quorum being broken, a a list to which eight (8) of the thirteen (13) senators who are part of the Senate's Second Commission responded.[39] This is the case in the minutes of the session:
The Secretary of the Commission, Dr. Diego Alejandro González González, gives a reading to the final report of Ponencia:
Final Proposition
Give first debate to the Second Commission of the Senate of the Republic, the Bill of Law No. 145 of 2012 Senate, by means of which the agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela, [...] The proposal is read with the end of the report of presentation, Mr. President.
The honorable Senator Edgar Espindola Nino is used to speak:
What happens is that some colleagues have gone out and we would not have the quorum to vote on it, I would propose as some of them arrive, we will play the next project that corresponds to me in the Order of the Day, once we will enter the vote; because as we do not have a quorum, in that order of ideas it would be to leave the vote for a next session.
The President, Senator Carlos Fernando Motoa Solarte:
Asks the Secretary to call himself a list, to see how we agree with Senator Espindola's proposal.
The Secretary of the Commission, Dr. Diego Alejandro González González: It comes with the call to list:
Anibal Frame Avibranch
Montealegre Roy Leonardo Barriers
| Barriga Penaranda Carlos Emiro | Present |
Christ Bustos Juan Fernando
| Chavarro Cuellar Carlos Ramiro | Present |
| Espindola Nino Edgar | Present |
| Garcia Realpe Guillermo | Present |
Lozano Ramirez Juan Francisco
| Moreno Piraquive Alexandra | Present |
| Motoa Solarte Carlos Fernando | Present |
| Paredes Aguirre Miryam Alicia | Present |
Romero Galeano Camilo Ernesto
| Virguez Pirigove Manuel Antonio | Present |
I inform you Mr. President that you have answered list eight (8) honorable Senators, consequently there is a quorum to decide.[40]
2.3.3.2. The project was approved by ordinary vote in the following terms:
Mr President, Senator Carlos Fernando Motoa Solarte, says:
Once the quorum of the session has been verified, the report with which Senator Carlos Emiro Barriga has presented is put into consideration. It announced that it will be closed, closed. Does the Commission approve of the final report of the 2012 Senate Bill 145 Senate?
The Secretary of the Commission, Dr. Diego Alejandro González González:
informs the President that the senators of the Commission have approved the final report of the report of Bill 145 of 2012 Senate, presented by Senator Carlos Emiro Barriga Penaranda.
The President, Senator Carlos Fernando Motoa Solarte:
Requests the Secretary to serve as a reading to the articulate.
Secretary Dr. Diego Alejandro González González, informs the President:
There is the read default request for the articulated.
The President, Senator Carlos Fernando Motoa Solarte, informs the Commission:
This is a consideration of the Commission's senators, the proposal for the omission of the article's reading. It announced that it will be closed, closed. Does the Commission approve the omission of the article?
The President, Senator Carlos Fernando Motoa Solarte, informs the Commission:
This is a consideration of the senators in the project. It announced that it will be closed, closed. Does the Commission approve of the Article 145 of the 2012 Bill of Law?
Secretary Dr. Diego Alejandro González González, informs the President:
The articles of the 2012 Senate Bill No. 145 have been approved by the Commission's Senators.
Reading the project title.
The Secretary, Dr. Diego Alejandro González González, proceeds with the reading of the title of bill No. 145 of 2012 Senate:
Title. By means of which the agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela,in Caracas, the Bolivarian Republic of Venezuela, is approved on 28 of November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I "Preferential tariff treatment". Annex " source". Annex III "Technical regulations, conformity assessment and metrology". Annex IV "Health, animal health and plant health measures". Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism".
I allow myself to inform the President that the title of the bill is read.
The President, Senator Carlos Fernando Motoa Solarte:
Subject to the consideration of the Commission's Senators, the title of the bill. It announced that it will be closed, closed. Do the members of the Second Commission approve the title read?
The Secretary, Dr. Diego Alejandro González González, informs the Presidency:
The title of the 2012 Senate Bill 145 has been approved.
The President, Senator Carlos Fernando Motoa Solarte:
Question to the Commission Senators, if they want this bill to have second debate in the Senate Plenary.
The Secretary, Dr. Diego Alejandro González González, informs the President:
The Senators of the Commission If they want this bill to move on to their second debate in the Senate Plenary.
President Senator Carlos Fernando Motoa Solarte appoints as the rapporteur for the second debate to the Senators Carlos Emiro Barriga Penaranda and Juan Fernando Cristo Busto.
The following point of law is continued.[41]
In the first debate, the bill 145 Senate was approved one of the cases that, according to article 129, number 16, of Law 5 of 1992 (as amended by the article 1or Act 1431 of 2011) enables the general rule of roll call and public voting to be exceptionated to the ordinary vote. In the present case, there are sufficient indications that the unanimous will of the members of the legislative cell who voted for the bill will be unanimous in giving approval for the bill to continue. It is thus inferred from the fact that the positive proposition with which the report was completed was approved, as well as the omission of the reading of the articles; it is also indicative of the existence of unanimity that will not be presented proposals against or other types of adverse events to this initiative, or requests to vote on the project in a nominal manner. On the other hand, the use of this voting mode in the present case did not prevent the existence of a decision-making quorum at the time of the vote (Article 145 CP) with certainty and, consequently, that the project was approved with the required majorities (art. 146 CP). The above, as soon as the vote was opened, a call was made to the list to which eight (8) of the 13 (13) members of the Senate's Second Committee responded. In this way, it was possible to comply with the voting rule provided for in article 123 , number 4 of Law 5 of 1992, as it was possible to verify that the number of votes cast coincided with the number of congressmen present in the respective corporation at the time of voting.
2.4. Second Debate in the Plenary of the Senate of the Republic
2.4.1. Report on presentation. The Senators Carlos Emiro Barriga Penaranda (Coordinator Rapporteur) and Juan Fernando Cristo, gave positive presentation for the second debate which was published in the Gazette of the Congress No. 380 of the six (6) of June of two thousand thirteen (2013), where The publication of the text approved in the first debate by the Second Commission is also included.
2.4.2. Advertisements. The bill was announced the eleven (11) of June of two thousand thirteen (2013) in the Plenary of the Senate, to be discussed and approved in "the next Plenary Session of the honorable Senate of the Republic day Wednesday, June 12 2013", as stated in Act No. 65 of the same date, published in the Congress Gazette No. 600 of 2013.[42]
2.4.3. Approval. Indeed, the bill was discussed and passed by ordinary vote on Wednesday twelve (12) June of two thousand thirteen (2013), as stated in Act No. 66 of that date, published in the Gazette of Congress No. 662 of thirty (30) August of two thousand thirteen (2013).
2.4.3.1. In relation to the requirement of decision-making quorum, the Secretary General of the Senate of the Republic, did not refer to this Corporation the certification regarding the quorum with which the bill was approved. Required on this point, it was limited to send the publication in the Congress Gazette of the corresponding plenary minutes.[43] Revised this, it is noted that in the call to list that appears as the first point of the record, they answered ninety And four (94) senators, and it is said that they stopped attending with excuse (4) senators.[44] However, it is not possible to determine with certainty whether such was the number of senators present in the chamber, making up the decision-making quorum, at the time of voting on the bill 145 Senate. In this respect, the immediate item on the agenda was voted nominally in accordance with the minutes, with the presence in the chamber of fifty-eight (58) senators being verified at the moment prior to the vote on the bill. object of examination.[45] Similarly, after the approval of this, the next item on the agenda was also voted in nominal terms, which allowed the presence in the enclosure, for that moment, of a total of fifty and nine (59) senators.[46] In the absence of required quorum certification, the information contained in the minutes allow the Chamber to infer in a reasonable manner that at the time of voting on the Bill of Law 145 of 2012 Senate, there was a quorum of decision making, because at least fifty-eight (58) of the ninety-eight (98) were found in the enclosure senators who for that legislature were in exercise of their duties.
2.4.3.2. Project approval was done by ordinary voting in the following terms:
BILL NUMBER 145 OF 2012 SENATE
by means of which the "Agreement of the Partial Outreach of Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela", signed in Caracas, the Bolivarian Republic of Venezuela, is approved on 28 June. November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I "Preferential Tariff Treatment". Annex II 'Regime of Origin'. Annex III "Technical regulations, conformity assessment and Metrology". Annex IV 'Health, Animal Health and Plant Health Measures'. Annex V "Commercial Defence Measures and Agricultural Special Measure". Annex VI "Dispute Settlement Mechanism".
The Presidency tells the Secretariat to read the proposal with which the paper ends.
The positive proposition with which the report ends is read by the Secretariat.
The Presidency submits to the plenary the proposal read and, closed its discussion, it gives its approval.
Second debate opens
At the request of the honorable Senator Carlos Emiro Barriga Penaranda, the Presidency submits to the plenary the omission of the reading of the article of the bill and, closed its discussion, it gives its approval.
The Presidency submits to the plenary the article of the bill, and closed its discussion question: Does the proposed article adopt the plenary? And it responds in the affirmative.
The Presidency instructs the Secretariat to read the project title.
By Secretariat is read to the title of the Bill of Law No. 145 of 2012 Senate, by means of which the "Agreement of Partial Outreach of Commercial Nature between the Republic of Colombia and the Republic of Colombia" is approved. Bolivarian of Venezuela, signed in Caracas, Bolivarian Republic of Venezuela, on 28 November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I 'preferential Tariff Treatment'. Annex II 'Regime of Origin'. Annex III "Technical regulations, conformity assessment and Metrology". Annex IV 'Health, Animal Health and Plant Health Measures'. Annex V "Commercial Defence Measures and Agricultural Special Measure". Annex VI "Dispute Settlement Mechanism".
Read this, the Presidency submits it to the plenary, and closed its discussion question: Do the members of the Corporation approve the title read? And these give you their approval.
Fulfilled the constitutional, legal, and regulatory procedures, the Presidency asks: Do the senators present that the approved bill has its way in the honorable House of Representatives? And these respond in the affirmative.
The Presidency tells the Secretariat to continue with the next project.[47]
Also in this case were the conditions set forth in article 16 of article 129 of Law 5 of 1992 (as amended by article 1or Law 1431 of 2011), which met the conditions laid down in the enable ordinary voting. The unanimous will of the members of the Senate Plenary to give approval to the bill is inferred: (i) the approval of the report, without any of the senators raising objections or proposals to the contrary; (ii) (iii) no applications were made to vote on the draft in a nominal or other form of dissent to this initiative. On the other hand, thanks to the fact that the votes immediately before and after the one that was analyzed were made in a nominal manner, it was possible to infer the existence of a decision-making quorum at the time of voting (art. href="policy_constitution_1991_pr004.html#145"> 145 CP), made up of fifty-eight (58) senators; therefore, the project was approved with the required majorities (art. 146 CP). Likewise, it can be reasonably collegial that compliance with the voting rule provided for in article 123 number 4 of the 5th Act of 1992 was observed.
2.5. Third debate in the Second Permanent Constitutional Commission of the House of Representatives
2.5.1. Report on presentation. The Bill 145 of 2012 Senate was referred to the House of Representatives where it adopted the number 329 of 2013. In the Second Permanent Constitutional Commission, Representative Carlos Eduardo Leon Celis was appointed as the only rapporteur. His speech, which ends with the proposal to give the first debate to the bill in the House of Representatives, was published in the Gazette of Congress No. 768 of the twenty-six (26) of September of two thousand thirteen (2013).
2.5.2. Advertisements. The Bill 329 of 2013 House, 145 of 2012 Senate, was announced in accordance with the provisions of the Constitution, by the Secretary of the Second Committee of the House of Representatives and on the instructions of the President of that Commission. In this case, it was announced in session of the twenty-three (23) of October of two thousand thirteen (2013)[48] "[p] roectos that will be discussed and will vote in the next session of Commission where they will discuss and vote bills". The President said immediately after that it would take place "today in eight (8) days at 9 and a half in the morning, with the presence of the Ministers who have presented these projects", that is, for the session corresponding to the following thirty (30) October.
2.5.3. Approval. According to the announcement, the discussion and vote of the bill in the Second Committee of the House of Representatives took place on the thirty (30) October of two thousand thirteen of (2013), as stated in the Act No. 19 of the date, published in the Congress Gazette No. 116 of the first (1o) of April two thousand fourteen (2014).
2.5.3.1. In relation to the decision-making quorum required by Article 145 of the Constitution, according to the record, according to the attendance register, the session was initiated with the presence of seven (7) of the nineteen (19). representatives who make up this legislative cell; ten (10) more representatives were present in the course of this legislative cell, for a total of seventeen (17) attendees. In the meantime, before the vote on the draft law was initiated, an impediment presented by one of the members of the Commission, by ten (10) votes in favour and two (2) against, was approved in nominal form, which allowed verification of the the existence of twelve (12) representatives in the enclosure at the moment prior to the approval of this initiative, and with this, the existence of a decision-making quorum.[49]
2.5.3.2. After reading the paper report, and accepted the impediment formulated by one of the representatives, the project was approved by means of ordinary vote, as follows:
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
Well, in the Commission's view, the proposal to end the report opens the discussion, will be closed, is closed, does the Commission approve it?
The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak:
Mr President, the proposal with which the report ends, has been approved.
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
Articulated of the project Madam Secretary.
The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak:
Mr. President, I must inform you that they are 3 articles duly published in the corresponding Gazette .
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
Do you have proposals?
The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak:
No Mr. President.
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
In consideration of the Commission, the article of the project, the discussion opens, is going to be closed, it is closed. Does the Commission approve it?
The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak:
If you approve it Mr. President.
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
The formalities of law, after I grant him the use of the word Representative Pedro Pablo Pérez, Representative Zuluaga also afterwards.
The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak:
Yes Mr. President. Title of the project by means of which the Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela is approved, [...] According to what the Lord has determined The president is asked the honorable representatives if they approve this title of the bill read and you want this bill to go to second debate and become law of the Republic.
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
In consideration of the Commission the formalities of the present bill, the discussion is opened, it will be closed, it is closed. Does the Commission approve these?
The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak:
The title read, Mr. President, has been approved.
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
The speaker is appointed for the second plenary debate of the House to the honorable Representative Carlos Eduardo Leon Celis, and in his order the word is given by Representative Pedro Pablo Pérez and the Ministers.
The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak:
Excuse me, Mr. President, and in addition, so that there are no problems in the formality in the process, the representatives of the representatives want this bill to be the law of the Republic and to move on to the second debate.
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
I had forgotten.
The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak:
No Mr. President, it was that you interrupted me.
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
The lady who agreed late, but formally approved by the Commission all the formalities required by the bills, and in this case the approval of this agreement.
The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak:
Yes Mr. President.
(...)
The honorable Representative Augusto Posada Sanchez makes use of the word:
Thank you President, to put on record that I have just made income after the project was approved and that it is discussed about it, has already been approved and evacuated by the Commission, thank you President.
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
And you were approved by Representative Posada. Well, Representative Pedro Pablo Pérez has the floor.
(...)
President (e) honorable Representative Juan Carlos Martínez Gutiérrez has been used to speak:
Thank you, Representative, let us continue with the Order of the Day Madam Secretary.[50]
Also in the present case are the requirements that, according to article 129, number 16, of Law 5 of 1992 (as amended by article 1or Law 1431 of 2011), are met. authorize the exception to the nominal and public voting rule. Although this opportunity did not omit the reading of the article, the unanimous will to approve the project can be inferred, since: (i) the positive proposition with which the report was finished was approved and no proposals were made. (ii) none of the members of the Commission requested the roll-call vote on this initiative; (iii) the interventions of the congressmen during the debate were aimed at supporting the initiative. On the other hand, the use of ordinary voting did not prevent the existence of a decision-making quorum at the time of the vote (art. 145 CP); this in turn allowed the verification that the project was approved with the required majorities (art. 146 CP) and with compliance with the voting rule provided for in article 123 numeral 4 of the 5th Act of 1992.
2.6. Fourth debate in the House of Representatives Plenary
2.6.1. Report on presentation. At the end of the vote on the bill in the Second Committee of the House of Representatives, it was appointed as the rapporteur for the debate in plenary with Rep. Carlos Eduardo Leon Celis. His presentation, which ends with the proposal to give second debate in the Chamber to the project, was published in the Gazette of Congress No. 965 of twenty-six (26) of November of two thousand thirteen (2013).
2.6.2. Advertisements. The bill was announced three times in the House of Representatives Plenary. The first announcement was made on the 13th (13th) May day of two thousand fourteen (2014) "for next Tuesday, May 20, or for the Plenary Session in which bills or legislative acts are discussed"[51]. Second announcement. At the plenary session on May 20 (20), this initiative was not discussed at[52], so that, at the end of the session, projects were announced "for the next 27 May 2014", among them the initiative that is currently in control[53]. Third ad. In the session of twenty-seven (27) of May two thousand fourteen (2014) it was also not possible to debate this project, for which, at the end of it, a third announcement was made for "the day of tomorrow May 28, 2014 at 2:00 p. m.".[54]
It is noted that the three announcements were made in due form, since (i) they were carried out in advance of the date on which the initiative was actually discussed; (ii) in all of them it was determined clearly and accurately the session for which was programmed the discussion of the initiative; (iii) there was continuity in the chain of announcements, as the initiative was announced in successive way in the sessions of thirteen (13), twenty (20) and twenty-seven (27) of May 2014, to be discussed in the following session, until this was finally produced in the twenty-eight session (28) of May 2014. Therefore, compliance with the article 160 final article of the Constitution was fulfilled.
2.6.3. Approval. As indicated in the third announcement, on twenty-eight (28) May of two thousand fourteen (2014) the project was discussed and approved, as stated in Act No. 277 of that date, published in the Gazette of Congress No. 270 of nine (9) of June of two thousand fourteen (2014).
2.6.3.1. Project approval was surfed by ordinary vote, as follows:
Direction of the Presidency, Dr. Hernan Penagos Giraldo:
Let's continue with the order of the day, point first.
Secretary General, Dr. Jorge Humberto Mantilla Serrano:
With the modifications.
Bill number 329 of 2013 House, 145 of 2012 Senate, by means of which the "Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela" is approved [...].// Mr. President, on this project there is a record of Dr. Augusto Posada Sanchez, where he says: // I put on record that I have not participated and will not participate, nor have I voted nor will I vote on the Bill No. 329 2013 Chamber, 145 of 2012 Senate. Trade Agreement between the Republic of Colombia and the Bolivarian Republic of Venezuela .// (...)
Direction of the Presidency, Dr. German Alcides Blanco Alvarez:
Mr. Secretary, please read to the proposal with which the report of the paper corresponding to the Bill of Law No. 329 of 2013 ends.
Secretary General, Dr. Jorge Humberto Mantilla Serrano:
It says: It ends the presentation with the following proposition that has already been published in the Congress Gazette.
For the above stated and based on the provisions of the Political Constitution and the law, I allow myself to propose to the honorable representatives to give second debate to the Bill of Law No. 329 of 2013 Chamber, 145 of 2012 Senate, in the Plenary of Camera, [...] .// Signature: Carlos Eduardo Leon Celis, Representative to the House, and appended to the statement. // It is noted, Mr. President, that Dr. Posada Augusto is not in the chamber while this Project is being processed.
It has been read, Mr. President, the proposition with which the presentation ends.
Direction of the Presidency, Dr. German Alcides Blanco Alvarez:
In consideration of the proposal with which the paper corresponding to the House Bill 329 of 2013 ends, the discussion continues, it is going to close, it closes. Does the Plenary Assembly approve the proposal with which the report ends?
Secretary General, Dr. Jorge Humberto Mantilla Serrano:
So the Plenum wants it, it has been approved.
Direction of the Presidency, Dr. German Alcides Blanco Alvarez:
Articulate, Mr. Secretary.
Secretary General, Dr. Jorge Humberto Mantilla Serrano:
It consists of three articles without any proposal and was published in the Congress Gazette, Mr. President, to take the three articles into consideration.
Direction of the Presidency, Dr. German Alcides Blanco Alvarez:
In consideration of the articles corresponding to the House Bill 329 of 2013, the discussion is being held, announced that the discussion will be closed, the discussion is closed. Does the Plenum approve the article corresponding to the Bill of Law No. 329 of 2013?
Secretary General, Dr. Jorge Humberto Mantilla Serrano:
It has been approved, Mr. President.
Direction of the Presidency, Dr. Hernan Penagos Giraldo:
Title and question, Mr. Secretary.
Secretary General, Dr. Jorge Humberto Mantilla Serrano:
Bill number 329 of 2013 House, 145 of 2012 Senate, "by means of which the" Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela " is approved, signed in Caracas, Bolivarian Republic of Venezuela, on 28 November 2011 ', and its six annexes with their respective Appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I' Tariff treatment preferential ".// Annex II" Regime of origin ". Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. // Annex V "Trade defence measures and special agricultural measure" .// Annex VI "Dispute settlement mechanism".
And the question, as the last debate of the Project, if you want the honourable Plenary of the House that is Law of the Republic.
Direction of the Presidency, Dr. German Alcides Blanco Alvarez:
In consideration then the Title read by the Secretary and the question of whether the Plenary wants this Project to become Law of the Republic.
Secretary General, Dr. Jorge Humberto Mantilla Serrano:
Yes, Mr. President. It has been approved by the Plenary.
Direction of the Presidency, Dr. Hernan Penagos Giraldo:
Continue, Mr. Secretary, with the Order of the Day.[55]
From the above, it is inferred that there were also elements in this opportunity that allowed us to infer the unanimous will to approve the bill by the members of the House of Representatives who participated in the vote. Thus, (i) the positive proposition with which the report was concluded was approved, without any of the parliamentarians making proposals against or in any way expressing their opposition to this initiative; likewise, (ii) none of the Assistants requested that the roll call of the project be carried out. Therefore, in principle, the requirements that, according to Article 129, number 16, of Law 5 of 1992 (as amended by Article 1or Law 1431 of 2011), are met, would authorize the exception to the nominal and public voting rule.
However, the manner in which this form of voting was recorded in the minutes does not, in itself, make it possible to verify whether the other requirements determining the valid approval of a bill were met: (i) existence of decision-making quorum (art. 145 CP); (ii) approval by the required majority (art. 146 CP); (iii) the match between the number of votes cast and the number of MPs present in the chamber at the time of the voting (art. 123 no. 4 Law 5 of 1992).
2.6.3.2. To verify the conformation of the decision quorum required by the superior article 145 , the Secretariat of the House of Representatives was required to submit " certification, duly supported, of the quorum and total number of votes with which the bill 145/2012 Senate and 329/2013 House was approved, today Law 1722 of 2014" the House ' and if the total number of votes cast coincided with the number of congressmen present in the respective corporation at the time of voting, as set out in article 123 Number 4 of Law 5th of 1992".[56] In response to this request, the Secretariat of the House of Representatives reported the following:
"In Plenary Session of the H. House of Representatives on May 28, 2014, which consists of the 277-Gazette Act of the Congress 270 of 2014, to which one hundred and thirty-five (135) Honorable Representatives were made present. Chamber, they were considered and approved through the ordinary vote, the presentation for the second debate, the article, the title and the question "The Plenary wants this bill to be the Law of the Republic," leaving the HR on record. Augusto Posada Sanchez"[57].
2.6.4. Final text publication. The final text approved in the fourth floor debate in the House of Representatives was published in the Congress Gazette No. 275 of 2014.[58]
2.7. Process of Conciliation of Bill 145 of 2012 Senate and 329 of 2013 Chamber.
Among the texts passed in the Senate and House, some terminological discrepancies were presented that made the conciliation procedure necessary.[59]
The reconciliation report presented by the Senate and House speakers[60] in front of the 2013 House Bill 329, 145 of 2012 Senate warns that "legal technical adjustments are made that do not affect the Bill of Law and the spirit of the bill" and proposes to accept as definitive text the one that was approved by the House of Representatives.
2.7.1. Publication of reconciliation report. The Reconciliation Report was published in the Gazette of Congress No. 295 of seventeen (17) of June two thousand fourteen (2014), giving compliance to what was established in article 161 Constitutional, since it was made a day before the debate and approval of it.
2.7.2. Advertisements. The announcement for the vote of the conciliation in the Senate of the Republic was made the seventeen (17) of June of two thousand fourteen (2014) to be discussed and voted "in the plenary session following that of Tuesday 17 of June 2014", which was called for the day"Wednesday 18 June 2014 at 9:00 a. m".[61] Compliance with this requirement in the House of Representatives was also carried out during the seventeen (17) June session, indicating that"the following Projects are announced for the Plenary Session on June 18 or for the next Plenary Session on which bills or legislative acts are to be. "[62]
2.7.3. Approval of the conciliation report in the Plenary of the Senate. According to what was announced, this took place in the session of the eighteen (18) of June of two thousand fourteen (2014), according to the Act No. 58, of the date, published in the Gazette of Congress No. 351 of 2014.
2.7.3.1. The reconciliation report was approved in the Senate Plenary by ordinary vote. At this point on the agenda, one of the speakers[63] used the floor to explain the meaning of the conciliation report and to request its approval from the plenary. Then the reconciled text was read, after which it is stated in the Minutes that " (l) to the Presidency submits to the plenary the Report of the Conciliation to the Bill of Law 145 of 2012 Senate, 329 of 2012 (sic) Camera and, closed its discussion, is imparting its approval. "[64]. During the time the report was under consideration, none of the attendees expressed any objections or requested the vote. nominal of the same. This makes it possible to infer, in a reasonable way, that there was a unanimous will to give it approval.
2.7.3.2. The Secretary General of the Senate of the Republic, did not refer to this Corporation the information required on the certification of the quorum decision.[65] When reviewing the minutes of the session, it consists that in the call to list that relates to the The beginning of the minutes is certified the assistance of ninety four (94) senators and are reported to have stopped attending with excuse (4) parliamentarians. The analysis of this aspect of the procedure will be carried out later [Infra. 3.3.3.2]
2.7.4. Approval of the conciliation report in the Plenary of the House of Representatives. This took place, as announced, in the session of June 18, 2014, as recorded in Acta No. 281 of the same date, published in the Congress Gazette No. 336 of 2014.
The approval of the conciliation procedure in the House of Representatives was carried out by an ordinary vote. At this point on the agenda, after the reading of the respective report, approval was given to it, with none of the members of the Corporation to object to it or request its roll call.[66] inferred from this that there was a unanimous will to approve it, so that in principle there would be one of the circumstances that, as provided for in article 129 numeral 16 of the Law 5 of 1992 (amended by article 1 of Law 1431 of 2011) allows Except for the nominal and public voting rule.
As required by the quorum certification[67], the House Secretariat noted the following: (i) in the plenary session at which the conciliation report was approved, they were made present. One hundred and thirty-one (131) Honorable House representatives; (ii) said report " was considered and approved through ordinary voting (...) with eighty-eight (88) votes being the last registered nominal voting result, conducted prior to the vote of interest. "[68] This aspect of the procedure will be analyzed below [Infra. 3.3.3.3.]
3. Existence of a vitio of subsable processing in the vote of the bill in the fourth debate in the Plenary of the House and in the approval of the report of conciliation in the Plenaries of the Senate and the Chamber.
The Chamber considers that in the procedure of the Bill 145 of 2012 Senate, 329 of 2013 Chamber, a vice of procedure was introduced that was repeated in the final stages of the legislative procedure. The vice consisted of the manner in which the vote on the bill took place and the vote on the bill was recorded in the fourth debate in the Plenary of the House of Representatives, and the approval of the conciliation report in the Senate and Senate Plenaries. Chamber, respectively, I do not respect the conditions of validity of must satisfy the ordinary vote. As a result, it was not possible to verify compliance with the constitutional rules of quorum and majorities, provided for in Articles 145 and 146 higher.
To substantiate this conclusion, the following order shall be made: (i) the conditions to be satisfied by the ordinary vote shall be examined in order to constitute a valid exception to the general rule establishing the nominal and public vote; (ii) The constitutional jurisprudence will be reiterated in the context of the verification of the quorum and the majority as a condition of the validity of the decisions of the Congress. On this basis, (iii) it shall specify the manner in which the procedural vice has been configured in the present case and (iv) why the procedure is subsable.
3.1. The ordinary vote as an exception to the constitutional demand for a nominal and public vote. Conditions for validity
3.1.1. Article 133 of the Constitution, after the modification of the Legislative Act 01 of 2009, states that the vote of the members of the Direct-choice collegiate bodies will be nominal and public, except in cases that determine the law.
By constitutionalizing this voting rule, the derivative constituent was intended to strengthen the transparency mechanisms of the management of public corporations and, with this, the possibilities of citizen control over the actions of their representatives. This purpose was explicitly reaffirmed during the process of approval, because in the two debates held in the First Commission and the Senate Plenary in the first round, it was agreed to withdraw the voting requirement. nominal, enshrined in the initial project, to establish only as a rule the public character of the vote.[69] This modification was included in the reconciled text published at the end of the first round approval of the draft Legislative Act.[70] However, when initiating the procedure in the second round in the First House Committee, the nominal and publicvoting requirement was introduced again, at the request of those who acted as speakers of this initiative[71]:
" The reform of article 133 is introduced as a general rule by the public vote of members of the collegiate bodies. With this measure it takes hold in the responsibility and seriousness in the decision-making by the elected ones, although the ideal with the reform was to establish a vote not only public but nominal as an evaluation system that would allow the In order to verify compliance, in the decision-making process, with the objectives of social, political and economic equality, which are typical of a Social State of Law, this Commission is asked to include the nominal vote in the wording of the text, which "The members of the collegiate bodies of direct election represent the people," he said. and must act in consultation with justice and the common good. The vote of its members shall be nominal and public, except in cases determined by law. [...] ' "[72]. (Subrays added).
In the same sense, another of the representatives proposed:
" [...] modify the article in order to include that the vote is also nominal. // The above since the nominal and public vote allows for greater control by the electors over the decisions made by their chosen ones. This is a basic principle of participatory democracy that must govern in a state like the Colombian, which has adopted this form of government in its Constitution. "[73] (Subrays added).
Similarly, in the text approved by the Senate First Committee in the second round, the call for a nominal vote74]was incorporated again, which was also approved by the Plenaries of both Corporations and, finally, embodied in Article 5or the final text of Legislative Act 01, 2009.
Article 5o. Article 133 of the Political Constitution will remain so: The members of the collegiate bodies of direct election represent the people, and must act in consultation with the justice and the common good. The vote of its members will be nominal and public, except in cases determined by the Act.
The chosen one is politically responsible to the society and to his constituents of the fulfillment of his investiture obligations.
The previous count allows you to appreciate that the incorporation of the vote not only published but also nominal as a general rule in the article 133 Superior expresses the results of the weighting that it carried out the Congress itself, acting as a derivative constituent, through which it agreed to give prevalence to the constitutional imperative to strengthen the transparency of the decisions and the tools of citizen control over the management of their representatives in the collegiate bodies, ratifying the voting rule nominal, on the purpose, without doubt plausible but purely instrumental, to speed up the parliamentary sessions, that the supporters of eliminating this demand are shouting.
3.1.2. In addition, respect for the nominal voting rule is a means to reliably credit the existence of a decision-making quorum (Article 145 CP) and the compliance of the majority of the majority of the simple, absolute or qualified that in each case requires the Constitution for the approval of bills (arts. 146, 151, 153, 376, 378 CP) or legislative acts (art. 375 CP), as this voting mode implies verifying the presence of the members of the respective legislative cell when expressing the sense of their vote.[75]
3.1.3. The exception to the nominal voting rule is the ordinary vote, through which the principle of the speed of the procedures is satisfied, as it is surfed through the expeditious mechanism of giving a blow on the pupitre in sign of approval. Article 129 of the Congressional Regulation, as amended by Article 1or Law 1431 of 2011, lays down in a taxative manner the assumptions in which this modality is based. The vote is exceptional. One of them, provided for in the number 16 of that provision, takes place " when in the process of a bill there is unanimity on the part of the respective commission or plenary to approve or deny all or part of the a project". But even in these cases, the demand for a nominal vote prevails when it is requested by some of the members of the respective legislative cell.
3.1.4. The Court has understood that the cases in which the ordinary vote is accepted must be interpreted in a restrictive manner, in order to avoid such a mechanism being made in the rule and, in the interests of the speed of the procedure, to terminate the roll call to the place of exception. In this sense, for example, it has repeatedly rejected the approval of the presidential objections report through ordinary voting, since it is not one of the assumptions mentioned in the article 1or Act 1431 of 2011. It has supported this position in two arguments: (i) the validity of the principle of constitutional supremacy and (ii) the restrictive interpretation of the rules that derogate from the rules laid down in the Constitution. [76]
This same criterion has inspired the restrictive interpretation of the exception to the nominal and public voting rule in cases where unanimity exists, insisting that the latter cannot be presumed but must in any event be proved or to be reasonably inferred from the circumstances in which the parliamentary debate took place. In this regard, in the 2013 Auto[77], the Court held that there was a procedural vice in the process of a statutory bill that was passed in the Senate plenary by ordinary vote, without any an element that could reasonably be inferred from or compliance with the absolute majority rule provided for in Article 153 of the Charter for such initiatives, nor the existence of a unanimous willingness to approve it. In this regard, this Court stated that:
" The rules of exception are of restrictive use and should always aim at the realization of the aims of transparency and publicity in the democratic process. A reading in another sense would imply making the constitutional demands more flexible, in the way of the principles noted, hindering the processes of social and political control towards the congressmen-accountability-and denaturing, in the past, the a sense of reform to the process of formation of the law. Nor could it be verified whether a congressman was subject to the discipline of his/her bench.
In this order of ideas, the use of some of the exceptions to the general rule of public and nominal voting cannot be interpreted as a way to circumvent the requirements that the Constitution imposes. For example, the unanimous approval of a statutory bill, when no use of the nominal and public vote, requires accrediting that it has counted on the absolute majority of members of one chamber and another. This is why it is important that both parliamentarians and the general public have absolute clarity about the decision-making procedure, which should be timely recorded in the minutes and recordings that account for the process of forming the legislative will.
Unanimity as a cause for exception to the general mandate for a nominal and public vote can only be of receipt when, under the principle of transparency, there is clarity around it in the approval of a project, in the " It is possible to identify which congressmen were absent, who abstained, who voted, and what was the sense of those who did so.
The exception to the nominal and public vote, when the respective corporation has a unanimous position, is an exception in a technical sense; that is, it confirms the rule. If the Corporation votes unanimously on a bill, the nominal and public vote is then unnecessary on the outcome of the vote. It is reasonable, for the same reason, that the legislator has exempted this requirement because in such a case transparency is ensured and due to the due control of the citizen.
Now, when the nominal and public vote is excepted on the basis of unanimity, but it is not duly registered by the legislative corporation, there is a vice of unconstitutionality. This occurs in those events in which it is noted that there was an approval decision but it is not possible to determine whether this was unanimous or not, or when the concrete result of the vote is not known. In such cases, for reasons of transparency and publicity, which are indispensable conditions for securing the right to political control (CP arts. 40 and 133), the exception does not apply. If it is decided not to hold a nominal and public vote, because that type of vote is not required to individualize the position of the congressmen in view of the unanimity, but then it is not possible to define according to the procedure If there was or not a unanimous approval, because this is not recorded by the Board of Directors nor can it be verified by any suitable means, an essential requirement of validity in the processing of the law has been unknown.
3.1.5. When do we understand that there is unanimity for the purpose of implementing the derogation authorising the ordinary vote? Although the practice of Parliament is of the opinion that there is often unanimity on many of the issues which are subject to the vote of the collegiate bodies on a daily basis, the body responsible for monitoring the constitutionality can be granted for granted without reasonable evidence to indicate. In addition to not knowing the deliberative nature of the legislative body, where the different conceptions of the best and the just that coexist in a plural and diverse society are expected to have a voice and vote, assume a sort of presumption of unanimity as For the control that it is responsible to carry out to this Court would lead, in practice, to leave without effects the demand of the nominal vote that, after the reform introduced by the Legislative Act href="12009.html#INICIO"> 01 , 2009, was elevated to constitutional rank by the Republic's own Congress.
In that order of ideas, the Court has understood that it is appropriate to infer the existence of unanimity among the members of a legislative cell when, when declaring the result of the vote, the unanimous approval is expressed and unequivocal, either in the minutes of the sitting or in any of the other means of evidence recording what happened during the vote[78]; when, in the course of the discussions, indicative statements of unanimity are given, which occurs, for example, when the Paper reports have been favorable, it is approved to omit the reading of the article[79] , none of the members of the plenary or commission requests the nominal and public vote[80] and, in general, when no positions contrary to the approval of the project are recorded.
Meanwhile, it has pointed out that the previous unanimity indicators are distorted when, there are express manifestations of opposition to the project, requests that the vote be carried out in a nominal manner or negative vote constances of some of the congressmen. On the latter, in Case C-134 of 2014[81] this Court pointed out that the manifestation of a dissident constancy distorts the existence of unanimity and, therefore, requires a vote to be taken in a nominal and public manner. In a later decision, the Court held that " the demonstration of the negative vote after the vote and approval of the bills, does not invalidate the ordinary vote, but enables it as a constancy".[82] Clear, however, that this did not imply " a modification of the precedent case-law, in particular, in the face of the decision taken in Judgment C- 134 of 2014, since the factual budgets are different, since the expression of the dissident vote on that occasion, was presented once the I would like to make it clear that the Commission's proposal for a directive is a very important one, and it is a good idea, and I would like to make it clear to the House that it is a good idea. the bill's approval. "
3.1.6. But even in the cases where there is reasonable evidence of unanimity allowing the ordinary voting mechanism to be applied in exceptional circumstances, the possibility of establishing an unequivocal number of votes should be left to the exception. that an initiative was approved, since such information is a necessary condition to verify that the constitutional requirements of the quorum and the majority were met at the time of the vote. The need for this information to be recorded in the minutes of the sitting is particularly important when the projects are approved by ordinary vote, as in these cases, unlike the vote on the vote. nominal, the very dynamic of the vote does not cast the information on the number of MPs who were present at the time of opening the vote and the number of votes with which an initiative was passed.
This requirement is also imposed by the rules that the organic legislator himself arranged to discipline this form of vote. Thus, paragraph 1 of Article 129 of the Congress Regulation (as amended by article 1or Law 1431 of 2011), states that " (l) to verify the "Ordinary voting must be followed by the same procedure as the nominal and public vote, that is to say the result of the vote and the sense of the vote of each congressman." For its part, Article 123 of the same Statute, in its number 4, points out as one of the rules to which all votes must be held, the following: " (e) l number of votes, in all vote, must be equal to the number of congressmen present in the respective corporation at the time of voting, with the right to vote. If the result does not match, the election is cancelled by the president and its repetition is ordered".
From the above, it is inferred that, even in cases where the existence of unanimity can be affirmed, the validity of the ordinary vote is subject to the same account of the number of congressmen who participated in it and the total number of votes cast. To this end, it is necessary for the minutes of the respective session to be clearly and reliably recorded all relevant information to facilitate public scrutiny of the way the votes are taken, especially when they are except the general rule of roll call to go to the ordinary. Both the political control exercised by the citizens over the management of their representatives, and the constitutional control it is responsible for making this Court, depend on the fact that all the necessary information is made public to verify that These cases, the approval of a law or of a legislative act were carried out in accordance with the constitutional rules that define the conditions of legitimacy of the procedures for the formation of the democratic will.
3.2. Verification of the decision-making quorum and the majorities in the ordinary voting assumptions
3.2.1. Article 145 of the Constitution states that the full Congress, chambers and their committees may not open sessions or deliberate with less than a quarter of its members (quorum (deliberatory). It also states that decisions can only be made with the assistance of the members of the respective corporation, it has jumped that the Constitution determines a different quorum decision . For its part, the article 146 above states that the decisions of the legislative body will be taken by the majority of the votes of the assistants (simple majority), except that the Constitution requires a special majority.
3.2.2. Since its early case law, this Corporation has emphasized the need to verify the exact compliance of the quorum and the majorities required by the Political Constitution. Thus, in the C-008 statement of 1995[83] maintained:
Article 157 of the Charter clearly warns that "no project" will be law without having been "approved" in the first debate in the corresponding permanent commission of each Camera and in the two chambers in second debate.
[...]
In legislative matter, the approval refers to the valid assent of the corresponding commission or chamber to a particular project or proposal, which is not understood to be granted if any of the requirements are not required in abstract by the constitutional norms governing the matter. Among these requirements, it is worth highlighting, for the purposes of the process, the quorum -in its modes of deliberation and decision-and the majority -ordinary or qualified-whose determination depends on the forecasts that for the specific issue You have set the Policy Letter.
[...]
On the basis of the decision-making quorum, and only on the basis of it, it is necessary that, counted the vote that is deposited in relation to the project in question, this scope the majority, that is, the minimum number of votes required, according to the Constitution, to be understood as approved.
[...]
In other words, only decisions can be made when the decision-making quorum has been established and certified clearly from the beginning. "
In this judgment, I draw attention to the need for secretarial records and certificates to be provided with the information necessary to verify compliance with these requirements. He pointed out that:
" (E) n the reference to quorum and majorities, given the special constitutional requirements, the responsibility of the officials of those who demand the information for the processes of the official constitutional review -the secretaries of the standing committees and the secretaries-general of the House and the Senate-it does not simply come to the sending of the numbers corresponding to the "Gazette of the Congress" in which the texts of some minutes have been recorded, it goes to the exact certification of the number of assistants to the respective sessions, the decision-making quorum with which the number of votes cast for and against the project and the number of members of the committee or chamber were voted, in addition to the specific data requested by the Magistrate in each process Substantiator. "[84]
3.2.3. In subsequent decisions, when examining the constitutionality of statutory bills, in view of the lack of certainty regarding the fulfillment of the absolute majority rule, the Court has given this demand on the basis of the provisions of the Article 129 of the Congress Rules of Procedure, under which, " (e) l Secretary shall report on the outcome of the vote, and if the verification is not requested, the exact report. " In application of this rule, it has been understood that, in cases of ordinary voting, provided that the prior verification of the decision-making quorum is established, it can be understood that the approval took place by an absolute majority. However, even in these cases it has urged that, in the future, the number of votes with which a project is approved is verified.[85] Likewise, it has pointed out that " as it is the work of the Secretaries of the commissions and plenary of the legislative chambers to report the outcome of the votes and to issue the required certifications (Arts. 47 and 50 Law 5 of 1992), such reports and certifications must refer in an explicit and precise manner if the approval is fulfilled in accordance with the constitutional requirements, the only way in which the respective project can be approved. "[86]
3.2.4. In the meantime, in other decisions it has declared the existence of a vitio of subsable processing, when the information contained in the minutes and the secretarial certifications cannot be established with certainty the number of votes with which a project and, with it, compliance with the absolute majority rule.[87]
More recently, in Auto 118 of 2013, this Court specified that in order to comply with the requirements of quorum and majorities it is not enough to refer to the number of parliamentarians present at the initial moment of the session, when it occurs the registration and verification of the quorum, as some of the members who registered at the beginning of the session may have been absent from the premises by the time the vote on the draft control object occurred.[88] that order of ideas, unless there is a verification of the quorum and an express account is taken of the number of votes with which the project was approved where the nominal and public voting rule is exceptionated, it is difficult to establish with certainty that these requirements of formal validity of the law were actually met. approved.
3.2.5. With regard to the verification of the quorum when a project becomes law, it should be noted if one half of the members of the respective legislative cell are present in the chamber and that of these, at least half more one has indicated its approval.
Such verification must be done in accordance with the principles of sound criticism, in accordance with the provisions of sound criticism: (i) the information contained in the minutes of the respective session published in the Gazette of the Congress, as well as the other documents that they account for the passage of the law, such as (ii) the certifications issued by the Secretaries of each committee or plenary and (iii) the audio or video records that document the development of the parliamentary sessions. In any event, the assessment of the means of proof must not lead to the lack of knowledge of the prevalence of the official information of the minutes of sessions and other documents published in the Gazette of the Congress, as provided for in the Articles 35, 36 of Act 5o of 1992. On this point, it is reiterated that this Corporation in the Auto 118 of 2013, in the sense that " the use of the different means of test is univocamente directed to accredit confusing or ambivalent cases of the information contained in the minutes, but not allowing their irregular complementation or addition ".
In the assumptions that a project is voted in an ordinary way, to understand the constitutional conditions of validity in its approval, it is necessary that the means of proof allow the existence of the unanimous will to be inferred. to approve it by the members of the respective committee or plenary or, where appropriate, that any of the other exceptions that enable this mode of voting (art. 129 R. C) are presented. In addition, it is necessary that there be an express or, in the absence thereof, a reasonable inference from the minutes, the secretarial constances and other means of proof, the number of congressmen present in the chamber at the time of The vote will be held for the purpose of establishing compliance with the requirements of the quorum and the majority. With regard to the latter, given the evidence that the number of assistants certified in the minutes does not remain constant during the course of the session, it is necessary to have precise certificates issued by the secretaries of the the number of members of Congress and the number of votes with which the draft law was approved. When, as is the case in the present case, such certifications are not provided or do not contain the precise information, the Court shall examine, from the manner in which the debate took place, if at the time of the vote it was required in the top 145 and 146 items. If, as this Court has pointed out, the vote cannot "be presumed or deleted", there is also no room to presume the existence of a quorum and majorities, nor to suppress the finding of its compliance.
3.3. The impossibility of verifying the number of congressmen who approved the bill in the fourth debate, and the conciliation report in the Senate and Chamber plenary, sets up a procedural vice in the present case.
All the votes taken during the passage of the bill that, once approved, became Law 1722 of 2014, were made in an ordinary way, appealing to the exception foreseen in the number 16 of Article 129 of the Congress Regulations (as amended by Article 1or Law 1431 of 2011).
3.3.1. As has already been examined, both in the four debates, and in the vote on the conciliation report in the plenary sessions of the Senate and the House, some indications were verified on the unanimous will of the congressmen to approve this initiative and to allow that it was signed into law. In this respect, the considerations made in numerals 2.3.3.2 (first debate Commission Second Senate), 2.4.3.2 (second plenary debate Senate), 2.5.3.2 (third debate Commission Second Chamber), 2.6.3.1 (fourth plenary debate), 2.7.3.1 (Senate conciliation report), 2.7.4.1 (conciliation report). In all these cases, the Chamber noted, among other things, that there were no interventions contrary to this initiative, no alternative proposals or requests for a roll-call vote. For this reason, it concludes that there was no evidence of the assumption of the assumption that it would be able to derogate from the voting mechanism prescribed in Article 133 higher.
3.3.2. On the other hand, the certifications provided to the file and the analysis of the session minutes made it possible to verify the existence of a decision-making quorum at the time of the vote on the project in the first three debates:
3.3.2.1. In the first debate in the Second Committee of the Senate, just at the moment the vote on the bill was to take place, in response to the intervention of one of the assistants who warned about the risk of the quorum being broken, it was carried out a call to list to which eight (8) of the thirteen (13) senators who make it [Supra 2.3.3.1.] responded.
3.3.2.2. In the second debate in the Senate Plenary, despite the fact that the Secretary of the Senate did not pass on the certification that was requested, the review of the minutes revealed that the point immediately preceding the agenda was voted on. nominally for fifty-eight (58) senators and the immediately subsequent to which it is analyzed was also voted in nominal manner by a total of fifty-nine (59) senators. This allowed the Chamber to conclude that at the time of the vote on the Bill 145 of 2012 Senate, there was a quorum of decision-making, because at least fifty-eight (58) of the ninety-eight (98) senators for then active [Supra 2.4.3.1].
3.3.2.3. In the third debate in the Second Committee of the House of Representatives, following the roll-call vote of an impediment presented by one of the representatives at the time of the consideration of this initiative, the presence of the Twelve (12) of the nineteen (19) representatives of this legislative cell [Supra 2.5.3.1]
All of the above made it possible to verify in a certain way that at the time of the first three debates the bill was present in the chamber, most of the members of the respective legislative cell (art. href="policy_constitution_1991_pr004.html#145"> 145 CP) and therefore, on the basis of unanimous approval, that it was approved in compliance with the provisions of article 146 higher.
3.3.3. On the contrary, neither at the time of the adoption of the fourth debate in the House, nor in the approval of the conciliation report, could the number of Members who voted for the bill be established with certainty, and with this, the the requirements of quorum and majorities. So:
3.3.3.1. Fourth debate in the House of Representatives. In response to the request made by the Court, the Secretary of the House of Representatives provided a record of the total number of congressmen (135) who took part in the plenary session of the House of Representatives in the that this initiative was discussed. [Supra 2.6.3.2]. However, it does not inform whether this was indeed the number of Members present at the time of its approval, the latter being the case for verifying the decision-making quorum. requested by this Tribunal to certify.[89]
In view of the lack of this information, after consulting the relevant minutes, it was possible to establish that: (i) at the moment, and after the reading of the agenda, the Secretariat reported on the existence of a decision-making quorum;[90] (ii) after reading the order of the day, and after proposing some modifications that were finally withdrawn, that was approved by ordinary vote, followed by the discussion of the Bill 329 of 2013 House, 145 of 2012 Senate, which was as the first item on the agenda; (iii) just below, when considering The second draft of the agenda, the impediments presented by some parliamentarians, was voted in a nominal manner, but at the moment of closing the register and announcing the result of the vote, it was reported that the quorum had been broken down. decision.[91]
Of the above, it is inferred that it is not possible to determine precisely if when the approval of the draft law took place, compliance with the requirement foreseen in the article 145 of the Constitution. Although the Secretariat of the House of Representatives certified the existence of a decision-making quorum after reading the agenda and before proceeding with its approval (moment i), the number of representatives with whom the decision was taken did not quorum at that time, and if it matched the total number of attendees who answered the call to list (135 representatives). It is also not possible to determine whether the ordinary votes which were taken after such a constancy, one of which is the one of the draft whose formal validity is examined in this case (moment ii), have been carried out in the presence of most of the 160 representatives who were then members of the House of Representatives. The question arises as to the immediately subsequent vote (moment iii) it is common ground that only sixty-three (63) of the hundred and sixty (160) representatives were present at that time. functions.[92] By the above, it is not feasible to determine if the project was approved with the required majorities (art. 146 CP), since the validity of the approval by half plus one of the assistants presupposes the existence of a decision-making quorum.
3.3.3.2. Approval of the conciliation report in the Senate Plenary. The Secretary General of the Senate of the Republic, did not refer to this Corporation the information required on this aspect of the procedure.[93] When reviewing the minutes of the session, it consists that in the call to list that is related to the beginning of the minutes is certified the assistance of ninety-four (94) senators and are reported to have stopped attending with excuse (4) parliamentarians. However, it is not possible to determine with certainty whether such was the number of senators present in the chamber, making up the decision-making quorum, at the time of voting on the bill 145 of 2012 Senate, 329 of 2013. The development of the session accounts that the attendance was not kept constant, as follows:
(i) After the call to list that yielded the previous information, and published the excuses of those who did not attend, the Secretariat informs that there is a deliberative quorum and the President proceeds to declare open the session and sorts the order of the day.[94]
(ii) For that moment, despite the information that is given in the call to list, there was still no quorum. Proof of this is that, following the reading of the agenda, the next item was the consideration and approval of minutes, but the latter was postponed until the establishment of the regulatory quorum. The announcement of projects was then made. After this was concluded, and when the vote on bills and legislative acts was initiated, the Secretariat certified the formation of the decision-making quorum, but did not report the number of iii) session continued its course with the approval, always by ordinary vote, of the order of the day, of Acts 56, 57 and 58, of the faith of errata to a project of law[96], and two reconciliation reports[97]. Following this took place the ordinary approval of the reconciliation report to Bill 145 of 2012 Senate.
(iv) Concluded this, the session continued with the approval by ordinary vote of a report of conciliation, of eleven bills and of motions of congratulations for several congressmen, since this was the final session of the legislature and the four-year term. In the course of this intense day, one of the congressmen drew attention to the need to continue with the consideration of the projects, and to leave for the end the recognitions, because "it seems that the quorum is weakening ".[98] Following this motion, the session continued its course until it was lifted at 1.30 p.m., without a quorum verification proceeding at any time.
The information given in the minutes allows the Court to have by the way: (1) that ninety-four (94) senators attended the session; (2) that at a time before the vote the conciliation report was analyzed, the Secretariat had the existence of a decision-making quorum; finally (3) that the presence of the assistants in the chamber was not unchanged, since it was necessary to wait between the conformation of the deliberative quorum, the decision-making and then, at a moment On the other side of the session, one of the parliamentarians warned of the quorum of the quorum (despite the fact that the was not verified).
In the absence of the express certification that on this point the Secretariat of the Senate was required twice, it cannot be assumed by the Chamber that the deliberative quorum with which the conciliation report was approved was approved. formed by the total of the senators who attended the Plenary of the Senate that took place on June 18, 2014. To this conclusion is opposed the evidence that during the course of the session, the number of parliamentarians that remained in the precinct was variable. In that order of ideas, it is not possible to establish what was the number of votes with which the conciliation report was approved in the Senate. Therefore, compliance with the requirements set out in the higher 145 and 146 items, and in the article, cannot be certified either. 123 numeral 4th of the 5th Act of 1992.
3.3.3.3. Approval of the conciliation report in the House of Representatives. As required by the quorum certification[99], the House Secretariat noted the following: (i) in the plenary session at which the conciliation report was approved, they were made (ii) said reportwas considered and approved by ordinary vote (...) with eighty-eight (88) votes being the last result of a roll-call vote. registered, prior to the vote of interest".[100]
From this certification two conclusions are inferred: firstly, it is confirmed that the number of parliamentarians attending a session is not unchanged in the course of the session, whereby the verification of the quorum cannot be replaced, without further, by the formal certification of the number of attendees to the corresponding session. Secondly, that in the present case, because of the manner in which the vote was taken, the House Secretariat itself failed to establish precisely, and so to certify, what was the decision-making quorum and the number of votes to which the reconciliation report was approved for analysis.
Given the impossibility of crediting the number of representatives present at the time of the vote, the House Secretariat noted the number of votes cast in the last registered roll call.[101] However, the vote is not yet clear. did not immediately apply to the vote, the validity of which is examined in this case. After that, the ordinary vote of two other reconciliation reports was carried out[102], after which the approval of the report of conciliation to the bill corresponding to the approving law took place in study.[103] After that, the session continued with the ordinary vote of two reconciliation reports and five bills.[104] With all, when it was time to make the roll call of one of the initiatives, In the absence of unanimity, this could not be carried out because, in the open the register, the the decision-making quorum to be dissolved, since only 51 of the 160 representatives were present. [105]
In short, in view of the lack of precise certification of the number of votes with which the conciliation was approved in the House of Representatives, and the lack of data in the minutes of the session, which would allow us to reach a conclusion founded on this aspect of the procedure, you do not have the Element Room to certify compliance with the requirements set out in Articles 145 and 146 higher, and in article 123 number 4 of the 5th Act of 1992.
3.4. Subsable character of the vice
3.4.1. The paragraph of article 241 of the Constitution enshrines the possibility that procedural vices identified in the process of forming acts subject to constitutional control can be sanitising.[106]
To determine in which events a vice is subsable in the legislative procedure, and when it requires the declaration of inexequibility of the Law within the parameters of reasonableness, the Court has established the following criteria judicial assessment: (i) whether basic or structural steps have been taken in the process, taking into account that the sub-healing cannot be understood as the repetition of a whole procedure; (ii) the context within which the vice was presented, for determine its seriousness and importance in the formation of the legislative will; (iii) the possible the rights of the parliamentary minorities, as well as the intensity of the parliamentary minorities; all of the above, (iv) taking into account the type of law in question and its evolution throughout the parliamentary debate.[107]
3.4.2. In the specific case of the laws approving treaties the case law has determined that " the essential condition of subsability is that the Senate has pronounced itself in such a way that the House where by constitutional mandate It is necessary to initiate the procedure of the draft laws approving a treaty has fully expressed its will. Thus, one of the structural stages of the process, e.g., approval by the Senate, will have been completed without any vice. "[108]
In application of this rule, the Court has established the existence of subsable procedural defects during the processing of the laws approving treaties.[109] In such cases, the Court has ordered to return the project to the legislative cell. where the irregularity occurred so that, once the detected vice has been remedied, and within the deadline set by the Court, the corresponding legislative procedure will be completed. He has also pointed out that an order of this nature is compatible with the prohibition contained in article 162 of the Constitution, since the two-state limit applies exclusively to the original formation of the law, without it being able to extend to additional deadlines fixed by the Constitutional Court in order to remedy procedural defects.[110] Finally, it has specified that in such cases the subhealing of a In the legislative process, there is no change in the legislative process. concerning the nominal identification of the project and the resulting approval law.[111]
3.4.3. In the present case, the detected vices occurred during the passage of the bill in the fourth debate in the House of Representatives and during the approval of the conciliation report in the Senate and Chamber plenary, respectively. Therefore, it is a question of subsable vices because they were presented in the final phase of the legislative process, when the first two debates had already been held in the Senate and, with this, completed a structural stage of the procedure.
4. Conclusions and decisions to be adopted
4.1. The Court found that during the procedure in the fourth debate of the bill 145 of 2012 Senate, 329 of 2013 Chamber, was incurred in a vice of procedure, for how much the way in which the ordinary vote was carried out and recorded in the record This initiative did not permit the establishment of the number of congressmen who gave their approval to the project. For the same reason, it was not possible to verify that at the time of the vote was met the condition of validity of the vote provided for in article 123 numeral 4th of the Law 5th of 1992, nor with the requirement of the decision-making quorum provided for in Article 145 above. Since there is no certainty about the fulfilment of this last requirement, it cannot be satisfied that the conditions of constitutional validity are satisfied in the passage of Law 1722 of 2014. The same irregularity was presented during the approval of the conciliation report in the plenary sessions of the Senate and the House of Representatives, respectively.
4.2. In order to substantiate this conclusion, the Plena Chamber held that the ordinary vote constitutes an exceptional mechanism of manifestation of the legislative will to which it is valid to go as long as the budgets provided for in the Article 129 of the Congress Regulation (as amended by article 1or Law 1431 of 2011). However, in cases where a draft is voted in an ordinary way, the existence of unanimity or of any of the other exceptions enabling this mode of voting should be established. It is also necessary that the number of members of Congress present in the chamber at the time of voting on the draft object of the draft should be reasonably inferred from the minutes, the secretarial constances and other means of proof. control, for the purpose of establishing compliance with the requirements of the quorum and the majority. With regard to the latter, given the evidence that the number of assistants certified in the minutes does not remain constant during the course of the session, it is necessary to have reliable information, issued by the secretaries of the corporations the number of members of Congress and the number of votes with which the draft law was approved. Where, as is the case in the present case, such certifications are not provided or contain sufficient information, the Court shall examine, from the manner in which the debate took place, whether the time of the vote was met. required in items 145 and 146 higher.
4.3. The Chamber concluded that in the first three debates within the procedure of the draft of the approved draft law, it was possible to verify the existence of a decision-making quorum at the time of the vote, as: (i) in the first debate in the The Second Senate Committee, right at the time before the ordinary vote, took place a call to list the eight (8) of the thirteen (13) senators who make up the list. (ii) In the second debate in the Plenary of the Senate, a roll-call vote was taken on the draft which preceded and immediately continued on the agenda for the vote on the initiative under control; this made it possible to establish that the the time to approve the latter were in the fifties and eight (58) of the ninety-eight (98) senators with which the quorum was formed. (iii) The third debate in the Second Committee of the House of Representatives saw the presence of twelve (12) of the nineteen (19) representatives of this legislative unit, as soon as the ordinary vote on the project, the nominal vote of the impediment presented by one of the representatives was carried out.
On the contrary, in view of the evidence that the number of assistants had not remained constant during the sessions, and in the absence of constances that allowed to verify the existence of a decision-making quorum at the time of the adoption of the bill In the fourth debate in the House, and the respective conciliation report in the plenary sessions of the Senate and the House, it was not possible to ascertain whether the requirement laid down in Article 145 higher. The above has determined the existence of a procedural defect in the passage of the approved treaty law. However, the Plena Chamber considered that the irregularities reported are subsable, as they were presented during the final stage of the legislative procedure, after the first phase of the procedure was completed in the Senate.
4.4. Accordingly, it will be ordered to return to the House of Representatives Law 1722 of July 3, 2014[112] in order to remedy the procedural vice detected in this providence. For this purpose, the registration of the vote on the project, either nominal or ordinary, must be carried out in such a way as to permit the number of Members present to be able to vote on the draft of the draft in question and, thereby, compliance with the requirements of Articles 145 and 146 of the Constitution. A term of thirty (30) days, counted from the notification of this order, will be granted to the House of Representatives to remedy the detected vice, after which the Congress will have until the end of the legislature that culminates on 20 of the June 2015 to provide for the later stages of the legislative procedure. If the conciliation stage is required to be exhausted, the vote on the respective reports shall be carried out in accordance with this provision. The President of the Republic will have the deadline set in the Constitution to sanction the bill.
In application of the rule of decision set in previous cases, the Court should specify that in the remedy of the procedure detected in this providence, there is no change in the nominal identification of the project and of the approving Act 1722 of 2014.
VI. DECISION
On the merits of the above, the Plena Chamber of the Constitutional Court, administering justice on behalf of the people and by mandate of the Constitution,
RESOLVES:
First. RETURN to the Chair of the House of Representatives Law 1722 of July 3, 2014 "By means of which the" Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela, signed in Caracas, Venezuela, on 28 November 2011, and its six annexes, with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 December 2011. April 2012, as follows: Annex I "Preferential tariff treatment". Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism" ", in order to remedy the procedural defect detected in this providence. For this purpose, the registration of the vote on the project, either nominal or ordinary, must be carried out in such a way as to permit the number of Members present to be able to vote on the draft of the draft in question and, thereby, compliance with the requirements of Articles 145 and 146 of the Constitution.
Second. GRANT to the House of Representatives the term of thirty (30) days, counted from the notification of this order, to correct the detected vice, after which the Congress of the Republic will have until the term of the legislature that Twenty (20) of June of two thousand fifteen (2015) culminates in order to emerge the later stages of the legislative process. In the event that the conciliation stage is required to be exhausted, the vote on the respective reports shall be carried out in accordance with the number set out above.
Third. The President of the Republic will have the deadline set in the Constitution for sanctioning the bill, which will send to the Constitutional Court the Law 1722 of 2014, to decide definitively on its exequability.
Copy, notify, communicate, post, comply and file the case.
* * *
Auto 175 Pies.
| 1 | Folio 245, main notebook. |
| 2 | |
| 3 | Folio 294. |
| 4 | Office of the OALI-134 of twenty (20) October of two thousand fourteen (2014). Folios 310-348. |
| 5 | Folio 316. |
| 6 | Folio 324. |
| 7 | Folio 328. |
| 8 | Folio 337. |
| 9 | Opicio radicado the twenty one (21) of October of two thousand fourteen (2014) signed by Alejandra Valencia Gartner. Folios 350-366. |
| 10 | Folio 352. |
| 11 | Folio 354. |
| 12 | Folio 358. |
| 13 | Subscribe by Francisco Morales Falla, manager of the Ministry of Finance and Public Credit, delegated by Resolution 2736 of 2013. Folios 367-373. |
| 14 | Folio 370. |
| 15 | Subscribe by Jazmin Rocio Soacha Pedraza, Coordinator of the Judicial Management Group. Folios 374-379 main notebook. |
| 16 | Subscribe by Julia Astrid of the Santogal Castle, Head of the Legal Advisory Office (e) and close to this Court the twenty-two (22) of October of two thousand fourteen (2014). Folios 381-385. |
| 17 | Folio 381. |
| 18 | Concept signed by the Attorney General of the Nation, Alejandro Ordonez Maldonado. Folios 392-408. |
| 19 | Folio 402. |
| 20 | |
| 21 | |
| 22 | signed by Maria Alejandra Encinales Jaramillo, Coordinator of the Internal Working Group of the Treaties, Directorate of International Legal Affairs of the Ministry of Foreign Affairs. Folio 133, test notebook 1. |
| 23 | Approved by Law 32 of 1985. Article 7 of that instrument states: " ARTICLE 7o. I. Full powers. 1. For the adoption or authentication of the text of a treaty, or to express the consent of the State to be bound by a treaty, a person shall be deemed to represent a State; (a) if he presents the appropriate full powers, or (b) if deduces from the practice followed by the States concerned, or other circumstances, that the intention of those States has been to consider that person representative of the State for such purposes and to dispense with the presentation of full powers. By virtue of their duties, and without having to present full powers, they shall be deemed to represent their State: (a) Heads of State, Heads of Government and Ministers for External Relations, for the implementation of all acts concerning the conclusion of a Treaty;b) Heads of a diplomatic mission, for the adoption of the text of a Treaty between the European Union and the Statesaccrediting the State to which they are accredited; c) the representatives accredited by the States to an international conference or to an international organization or one of its organs, for the adoption of the text of a treaty in such a conference, organisation or body. " |
| 24 | This is a certification issued by the Ministry of Foreign Affairs. Folio 133 vto., test notebook 1. |
| 25 | Article 8o. Article 160 of the Political Constitution will have an additional paragraph of the following tenor: " No bill shall be put to a vote in session other than that which has previously been announced. The notice that a project will be put to the vote will be given by the Presidency of each Chamber or Commission in session other than the one in which the vote will be taken. " |
| 26 | |
| 27 | See for example the 2004 C-533 (PM) statements. Alvaro Tafur Galvis); C-661, 2004, (MP. Marco Gerardo Monroy Cabra); C-780, 2004 (MP. Jaime Cordoba Trivino, SV. Jaime Araujo Renteria, SV. Alfredo Beltran Sierra and SPV. Rodrigo Uprimny Yepes); C-333, 2005 (MP. Jaime Cordoba Trivino); C-400, 2005 (MP. Humberto Sierra Porto); C-930, 2005 (MP. Jaime Cordoba Trivino); C-1040 of 2005 (MM.PP. Manuel José Cepeda Espinosa, Rodrigo Escobar Gil, Marco Gerardo Monroy Cabra, Humberto Antonio Sierra Porto, Alvaro Tafur Galvis and Clara Inés Vargas Hernández, SV. Jaime Araujo Renteria, SV. Alfredo Beltran Sierra, SV. Jaime Cordoba Trivino, SPV and AV. Humberto Antonio Sierra Porto); C-241, 2006 (MP. Marco Gerardo Monroy Cabra); C-276 of 2006 (MM.PP. Manuel José Cepeda Espinosa and Marco Gerardo Monroy Cabra, SV. Jaime Araujo Renteria, SV. Alfredo Beltran Sierra and SV. Humberto Antonio Sierra Porto); C-322, 2006 (MP. Marco Gerardo Monroy Cabra, SV. Jaime Araujo Renteria and SV. Alfredo Beltran Sierra); C-337, 2006 (MP. Clara Ines Vargas Hernandez, SV. Jaime Araujo Renteria); C-576, 2006 (MP. Manuel José Cepeda Espinosa, SPV. Jaime Araujo Renteria); C-649, 2006 (MP. Manuel José Cepeda Espinosa, AV. Jaime Araujo Renteria); C-676, 2006 (MP. Manuel José Cepeda Espinosa); C-863, 2006 (MP. Manuel José Cepeda Espinosa, SV. Jaime Araujo Renteria); C-864, 2006 (MP. Rodrigo Escobar Gil, SV. Jaime Araujo Renteria); C-933, 2006 (MP. Rodrigo Escobar Gil); C-309, 2007 (MP. Marco Gerardo Monroy Cabra, SV. Jaime Araujo Renteria, SV. Humberto Antonio Sierra Porto); C-502, 2007 (MP. Manuel José Cepeda Espinosa, SV. Jaime Araujo Renteria); C-718, 2007 (MP. Nilson Pinilla Pinilla); C-927, 2007 (MP. Humberto Antonio Sierra Porto); C-387, 2008 (MP: Rodrigo Escobar Gil); C-799, 2008 (MP. Clara Ines Vargas Hernández); C-031, 2009 (MP. Humberto Antonio Sierra Porto); C-150, 2009 (MP. Mauricio González Cuervo); C-195, 2009 (MP. Jorge Ivan Palacio Palacio); C-248, 2009 (MP. Luis Ernesto Vargas Silva); C-376, 2009 (MP. Gabriel Eduardo Mendoza Martelo); C-379, 2009 (MP. Maria Victoria Calle Correa; Also see cars of Sala Plena Nos. 232 of 2007 (MP. Jaime Cordoba Trivino, SV. Jaime Araujo Renteria); 145 of 2007 (MP. Nilson Pinilla Pinilla); A-119, 2007 (MP. Rodrigo Escobar Gil, SV. Jaime Araujo Renteria); A-053, 2007 (MP. Jaime Cordoba Trivino, SV. Jaime Araujo Renteria); and A-311, 2006 (MP. Marco Gerardo Monroy Cabra, SV. Humberto Antonio Sierra Porto, SV. Clara Ines Vargas Hernandez). |
| 28 | |
| 29 | |
| 30 | |
| 31 | On this, in the 2013 Auto 118 (MP. Jorge Ivan Palacio Palacio, AV. Maria Victoria Calle Correa, AV. Nilson Pinilla Pinilla, SV. Mauricio González Cuervo, SV. Jorge Ignacio Pretelt Chaljub), the Court held that there was a procedural defect in the process of the bill for the statutory participation mechanisms, which was approved in the Senate floor by ordinary vote, without any action. an element that could reasonably be inferred from neither the fulfilment of the absolute majority rule provided for in Article 153 of the Charter for such initiatives, nor the existence of a unanimous will to approve it. |
| 32 | " (e) n the votes each congressman must take into account that: [...] 4. The number of votes, in all votes, should be equal to the number of congressmen present in the respective corporation at the time of voting, with the right to vote. If the result does not match, the election is cancelled by the president and its repetition is ordered. |
| 33 | Folio 239. |
| 34 | |
| 35 | |
| 36 | Constancy of handing over documents to the senators of the Second Commission of the Senate of the Republic. Portfolio 4 of Test notebook No 1 |
| 37 | Act No. 30 of May 7, 2013, published in the Gazette of Congress No. 737 of Tuesday, September 17, 2013: "" COMMISSION SECOND PERMANENT CONSTITUTIONAL | | ACT NUMBER 30, 2013 (May 7). " Mrs. Secretary, Dr. Claudia Patricia Alzate, gives reading point to Announcement and vote on bills. |
| 38 | Act No. 31 of May 14, 2013, published in the Gazette of Congress No. 737 of Tuesday, September 17, 2013: "" COMMISSION SECOND PERMANENT CONSTITUTIONAL | | ACT NUMBER 31, 2013 (May 14). "The Secretary, Dr. Diego Alejandro González González, gives reading to the announcement of bills |
| (...) 4. Senate Bill 145 of 2012 Senate by of which the " Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela, signed in Caracas, Venezuela, on 28 November 2011, and its six annexes with their respective Appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: // Annex I "Preferential tariff treatment" .// Annex II "Origin regime" .// Annex III " Technical regulations, conformity assessment and metrology ".// Annex IV" Health, animal health and plant health measures ". Annex V-Trade defence measures and special agricultural measure .// Annex VI " Dispute settlement mechanism//Authors of foreign and trade ministers, industry and tourism .//Ponents: honourable senators Carlos Emiro Barriga Penaranda (Coordinator Rapporteur) and Edgar Alfonso Gomez Roman. // Publications: Text of the Bill: Congress Gazette 734 of 2012. First Debate: Congress Gazette 230 of 2013. (...) | |
| 39 | |
| 40 | |
| 41 | |
| 42 | " Minutes number 65 of the ordinary session of the day of Tuesday 11 June 2013 (...) On the instructions of the Presidency and, in accordance with the Legislative Act number 01 of 2003, the Secretariat announces the projects to be discussed and approved at the next session. Announcements for the following Plenary Session of the honorable Senate of the Republic of the Republic of the Republic of Korea, Wednesday, June 12, 2013. Projects to discuss and vote at the next Plenary Session (...) Bill with speech for second debate |
| 145 of 2012 Senate, by means of which the " Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela, signed in Caracas, Venezuela, on 28 November 2011, and its six annexes with their respective Appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: // Annex I "Preferential tariff treatment" .// Annex II "Origin regime" .// Annex III " Technical regulations, conformity assessment and metrology ".// Annex IV" Health, animal health and plant health measures ". Annex V "Trade defence measures and special agricultural measure" .// Annex VI " Dispute settlement mechanism (...) at 2:00 p. m., the Presidency lifts the session and convenes for the day Wednesday, June 12, 2013, at 11:00 a.m. ". | |
| 43 | By Auto of twenty-six (26) August of two thousand fourteen (2014), certification, duly supported, of the quorum and the total number of votes with which the bill was passed 145/2012 Senate and 329/2013 House, today Law 1722 of 2014"in the Plenary of the Senate,"and yes the total number of votes cast concurred with the number of congressmen present in the respective corporation at the time of voting, in accordance with the provisions of Article 123 (4) of Law 5 of 1992". In response to the request, by trade OPC-410/12 of the twenty-nine (29) of August of two thousand fourteen (2014), the official referred a copy of the Gacetas of the Congress No. 600 of 2013 (pp. 15 and 16, announced) and 662 of 2013 (pp. 7, 14, 30 and 31, project approval). |
| 44 | Act No. 66 of the Senate Plenary Session of the twelve (12) June of two thousand thirteen (2013), published in Congress Gazette No. 662 of 2013, p.p. 1-2 (Folio 28 vto., test notebook 2). |
| 45 | According to Act No. 66 published in the Gazette of Congress 662 was held " roll call vote to the errata, to the Report of Objections to Bill 017 of 2010 Senate, 277 of 2011 House " by which the guidelines for the adoption of a public policy of integral management of Waste are established Electrical and Electronic Equipment (WEEE) and other provisions are dictated". The result announced by the General Secretariat is 57 votes for yes and 1 for no, for a total of 58 senators ' votes present in the precinct. |
| 46 | " develop articles 116 and 221 of the Political Constitution of Colombia and are dictated other provisions ". The nominal vote of the positive proposal with which the report was concluded yielded a result of 53 votes in favor and 6 against, for a total of 59 senators ' votes present in the chamber. |
| 47 | Act No. 66 of the Senate Plenary Session of the twelve (12) June of two thousand thirteen (2013), published in Gazette of Congress No. 662 of 2013 |
| 48 | "[...]" [...] "[...]" [...] "[...]" [...] 2013 (October 23). (...) " Next item of the Order of the Day, Madam Secretary, businesses substantiated by the Presidency. The General Secretariat of the Second Commission, Dr. Pilar Rodriguez Arias: //Projects to be discussed and voted on at the next session of the Commission where bills are discussed and voted on, the above to give compliance with Legislative Act 01 of 2003 in his article 8th. (...) Bill number 329 of 2013 House, 145 of 2012 Senate by means of which the " Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela, signed in Caracas, Venezuela, on 28 November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I 'Preferential tariff treatment'. Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI " Dispute Settlement Mechanism//Authors of Foreign Affairs and Trade, Industry and Tourism .//Ponance First Debate in Chamber Congress Gazette number 768, 2013. (...) Mr President, honourable Representative Telesforo Pedraza Ortega has used the floor: Well, it has already been clear to all of today's colleagues in eight (8) days at 9 and a half in the morning, with the presence of the Ministers who have presented Folio 369 Notebook of Tests No 1. |
| 49 | This is recorded in Act No. 19 (October 30, 2013) of the Second Senate Committee, published in the Congress Gazette No. 116 of 2014: " (...) The General Secretariat of the Second Commission, Dr. Pilar, has been used to speak. Rodríguez Arias: V. Second Bill 329 of 2013 House, 145 of 2012 Senate, " by means of which the agreement of partial scope of commercial nature is approved between the Republic of Colombia and the Bolivarian Republic of Venezuela [...] // It makes use of the word the Lord Honorable President, Representative Telesforo Pedraza Ortega: Please read to the proposal with which the report ends. // Makes use of the word the General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias: With great pleasure. Proposal with the end of the report for the first debate. Because of the above and based on the provisions of the Political Constitution and the law I allow myself to propose to the honorable representatives to give first debate to the Bill numbers 329 of 2013 House, 145 of 2012 Senate [ ] the word Mr. President honorable Representative Telesforo Pedraza Ortega: Well to you thank you very much, honorable Representative. The Secretary-General has informed me, but now I had said before, but we have to do it at the beginning when we start, there is an impediment that we are going to vote on quickly. Madam Secretary, please read the request for an impediment. // The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has used the word: Mr President, what happens is that the honourable Representative Augusto Posada Sanchez, before you can do your attendance at the sitting, submits to you the following impediment: I manifest to you that in my capacity as Representative to the Camaraby the department of Antioquia, I present the Commission The Constitutional Court of Representatives, which is unable to participate in the the session to discuss the Bill number 329 of 2013 House and 145 of 2012 Senate, Trade Agreement between the Republic of Colombia and the Bolivarian Republic of Venezuela, the impediment that it presented to You are in that I am a partner of the society for simplified actions, people motorcycle, as it consists in the book of record of interests and given that the bill grants a commercial preference to the automotive sector has declared me prevented. Intently Augusto Posada Sanchez .// The honourable President, Representative Telesforo Pedraza Ortega, has used the floor: On a roll call, please call the list .// Makes use of the word the General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias: Yes, Mr. President, with great pleasure. The NO is denied by the IF the impediment is denied. [A call to list and vote is made] // Ten votes (10) for the YES, two (2) for NO, consequently the impediment of the honorable Representative Augusto Posada Sanchez has been approved. " |
| 50 | Act No. 19 (October 30, 2013) of the Second Senate Committee, published in the Congress Gazette No. 116 of 2014. |
| 51 | This is the case in the Plenary Act 274 of May 13, 2014, published in the Congress Gazette No. 269 of 2014: " (...) Address of the Presidency, Dr. Hernan Penagos Giraldo: Announce projects .//S ubsecretaria General, doctor Flor Marina Daza Ramírez: // If Mr. President, the bills are announced for next Tuesday, May 20 or for the Plenary Session in which bills or legislative acts are debated: (...) Bill number 329 of 2013 House, 145 of 2012 Senate, by means of which the "Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela" is approved (...) ". |
| 52 | by means of which the "Agreement between the Republic of Colombia and Japan for the Liberalization, Promotion and Investment Protection", signed in Tokyo, Japan, on September 12, 2011is approved. " |
| 53 | This is the case in the Minutes of Plenary 275 of May 20, 2014, published in the Gazette of Congress No. 277 of 2014: " (...) Address of the Presidency, Dr. Hernan Penagos Giraldo: // Mr. Secretary, please announce projects for next Tuesday. // Undersecretary, Dr. Flor Marina Daza Ramírez, reports: // Yes Mr President, the following projects are announced for the coming 27 May 2014. Bill of law number 329 of 2013 House, 145 of 2012 Senate, by means of which the " Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela " (...) " |
| 54 | " (...) Address of the session by the Presidency, Dr. Hernan Penagos Giraldo: //Mr. Secretary, please announce projects for the day of tomorrow. //The General Secretariat reports, Dr. Jorge Humberto Mantilla Serrano: //The following projects are announced for the next session. // The General Secretariat, Dr. Flor Marina Daza Ramirez: //Mr. President, the following projects are announced for the day of Morning May 28, 2014 wings 2:00 p. m. //Bill number 329 of 2013 House, 145 of 2012 Senate, by means of which the "Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela" is approved (...) " |
| 55 | Act No. 277 of May 28, 2014, published in the Gazette of Congress No. 270 of 2014" (p. 17) |
| 56 | Auto from twenty-six (26) August two thousand fourteen (2014), proffered by the masterful rapporteur. |
| 57 | SG. CERTI. 365/2014, issued on the four (4) September of two thousand fourteen (2014) and signed by Jorge Humberto Mantilla Serrano, Secretary General of the House of Representatives. It responds to the office of OPC-411/2014 that was sent by the General Secretariat of the Constitutional Court. (Folio 122, test notebook 2). |
| 58 | |
| 59 | " [q] ue in the process of the mentioned bill did not arise discrepancies in the Chambers with respect to the same, therefore did not give place to the stage of the Conciliation and does not apply the fulfillment of the requirement of Article 161 of the Political Constitution " (Folio 408 of the No1 Test Notebook, added underscores). Subsequently, the four (4) of September of two thousand fourteen (2014), in response to the requirement made in the Auto of August 26, 2014, lies in the General Secretariat of this Corporation a new certification, signed by the same Secretary General of the House of Representatives, where at point 2o registers " [e] n plenary session of the H. House of Representatives on May 18 (sic), 2014, which consists of Act No. 281-Congress Gazette No. 366 of 2014-, to the which one hundred and thirty-one (131) Honorable House Representatives were made present, was considered and approved By way of ordinary vote the report of conciliation, being eighty-eight (88) votes the last result of the registered nominal vote, carried out before the vote of interest ". In spite of the information provided in the initial certification, the information provided by the interveners and contained in the Congress ' Gacetas in the file, allowed to establish that a conciliation was actually carried out on the texts approved in the Senate and in the House of Representatives. |
| 60 | |
| 61 | Project Announcement// On the instructions of the President, in accordance with the Legislative Act 01 of 2003, the Secretariat announces the projects to be discussed and approved in the next session. Legislative Act or Act to be considered, discussed and voted on in the plenary session following the one of Tuesday, June 17, 2014 (...) With report of conciliation: (...) " Bill 145 of 2012 Senate, 329 of 2013 Chamber, ) by means of which the "Commercial Nature Outreach Agreement" is approved The Republic of Colombia and the Bolivarian Republic adds Venezuela (...) Being 8:04 p. Mr President, the Presidency is meeting and calling for the next meeting on Wednesday 18 June 2014 at 9:00 a.m. m ". |
| 62 | " Directorate of the Presidency, Dr. Hernan Penagos Giraldo: // Secretary, please contact: announce projects for the day of tomorrow. // Deputy Secretary General, Doctor Flor Marina Daza Ramirez: // If Mr. President, the following projects are announced for the Plenary Session of June 18 or for the next Plenary Session in which bills or legislative acts are discussed Conciliation. Bill number 329 of 2013 House/145 of 2012 Senate, "by means of which the" agreement of partial scope of commercial nature between the republic of Colombia and the Bolivarian Republic of Venezuela " is approved (...)//Address of the Presidency, Dr. Hernan Penagos Giraldo:// The Session is closed at 6:57 p. m., is scheduled for Wednesday, June 18, at 2:00 p.m. Thank you very much. " |
| 63 | Senator Carlos Emiro Barriga Penaranda. |
| 64 | This is stated in the Minutes No. 58 of the Senate Plenary (June 18, 2014), published in the Congress Gazette No. 351 of 2014: " The Presidency indicates to the Secretariat to continue with the following reconciliation of the Order of the Day. B_aj"> Bill of Law No. 145 of 2012 Senate, 329 of 2013 House, by means of which is approved Agreement of Partial Scope of Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela [...]. // The Presidency grants the use of the word to the honorable Senator Carlos Emiro Barriga Penaranda. [...] // With the coming of the Presidency, the honorable Senator Carlos Emiro Barriga Penaranda used the word: Thank you Mr. President [...] I request that you ask the Plenary to vote positively on this report. of conciliation, thank you very much. // The Mediation Report was read by the Secretariat, which was agreed upon by the Commissions appointed by the Presidents of both Corporations, to reconcile the discrepancies that have arisen in the approval of Bill 145 of 2012 Senate, 329 of 2012 (sic) House [...] // The Presidency submits to the plenary the Conciliation Report to Bill 145 of 2012 Senate, 329 of 2012 (sic) House and, closed its discussion, is imparting its approval. " |
| 65 | By Auto of twenty-six (26) of August two thousand fourteen (2014), the Secretary General of the Senate was required for the second time " certification, duly supported, of the quorum and the total number of votes with which the bill was passed 145/2012 Senate and 329/2013 House, today Law 1722 of 2014"in the Plenary of the Senate,"and yes the total number of votes cast concurred with the number of congressmen present in the respective corporation at the time of voting, in accordance with the provisions of Article 123 (4) of Law 5 of 1992". In response to the request, by trade OPC-410/12 of the twenty-nine (29) of August of two thousand fourteen (2014), the official referred a copy of the Gacetas of the Congress No. 600 of 2013 (pp. 15 and 16, announced) and 662 of 2013 (pp. 7, 14, 30 and 31, project approval). I do not include any information about the manner in which the conciliation report was approved in the Senate Plenary. |
| 66 | " Directorate of the Presidency, Dr Hernan Penagos Giraldo: consideration of the Conciliation Report to the Bill number 329 of 2013 House, 145 of 2012 Senate, by means of which the agreement of partial scope of commercial nature is approved between the Republic of Colombia and the The Bolivarian Republic of Venezuela, [...], the discussion opens, announced that it will be closed, is closed, approved honorable representatives. // Secretary Dr. Jorge Humberto Mantilla Serrano, reports: It has been approved Mr. President. Office of the Presidency, Dr. Hernan Penagos Giraldo: Let's continue Secretary ". |
| 67 | certification, duly supported, of the quorum and the total number of votes with which it was approved the project". In addition, "if the number of votes cast coincided with the number of congressmen present in the respective corporation at the time of voting, in accordance with the provisions of Article 123 (4) of Law 5 of 1992". |
| 68 | General Secretariat of the House of Representatives. SG. CERTI.365/2014, issued on the four (4) September of two thousand fourteen (2014) and signed by Jorge Humberto Mantilla Serrano, Secretary General of the said Corporation (Folio 122, test book 2). |
| 69 | I request that the public vote, because nominal is to make the sessions endless, there are things in which you agree and you can vote publicly without a nominal vote. " Minutes of Plenary Session No. 36 of December 15, 2008 (Gazette of Congress 223 of April 21, 2009). |
| 70 | "Article 6o. Article 133 of the Political Constitution will thus remain: |
| of collegiate bodies of direct election represent the people, and they must act consulting justice and the common good. The vote of its members will be public, except in cases determined by law [...] " (underscores added). | |
| 71 | |
| 72 | Gazette of Congress 227 of April 22, 2009. |
| 73 | Gazette of Congress 227 of April 22, 2009. |
| 74 | Act No. 42 of May 28, 2009, published in the Gazette of Congress 427 of 4 June 2009. |
| 75 | On the relationship between nominal voting and the verification of compliance with the rules of quorum and majorities see Auto 118 of 2013 (MP. Jorge Ivan Palacio Palacio, AV. Maria Victoria Calle Correa, AV. Nilson Pinilla Pinilla, SV. Mauricio González Cuervo, SV. Jorge Ignacio Pretelt Chaljub). |
| 76 | |
| 77 | MP. Jorge Ivan Palacio Palacio, AV. Maria Victoria Calle Correa, AV. Nilson Pinilla Pinilla, SV. Mauricio González Cuervo, SV. Jorge Ignacio Pretelt Chaljub. |
| 78 | This was the case in the case C-295 of 2012 (MP Juan Carlos Henao Pérez), where it was verified that in the minutes of one of the sessions in which the bill was approved by ordinary vote, the unanimity was recorded. In addition, in the approval of the statutory bill of access to national public information, the procedure of which was reviewed by the Court in Case C-274 of 2013 (MP. Maria Victoria Calle Correa, SV. Luis Ernesto Vargas Silva, SPV. Maria Victoria Calle Correa, Jorge Ivan Palacio Palacio, Luis Ernesto Vargas, SPV. Nilson Pinilla Pinilla, SPV. Mauricio González Cuervo, Luis Guillermo Guerrero Pérez, AV. Maria Victoria Calle Correa, Gabriel Eduardo Mendoza Martelo and Jorge Ivan Palacio Palacio. The Court concluded that the existence of unanimity should be inferred, since in the video of the corresponding session " the Secretary of the Senate expressly indicated that such approval was made unanimously, and orally the totality of votes issued. " |
| 79 | Statement C-750 of 2013 (MP. Luis Guillermo Guerrero Perez, SV. Gabriel Eduardo Mendoza Martelo, SPV. Jorge Ivan Palacio Palacio, AV. Alberto Rojas Rios, SPV. and AV. Maria Victoria Calle Correa and Luis Ernesto Vargas Silva. On that occasion, the Court considered that the necessary unanimity required for the ordinary vote to proceed, among other factors, had been established because the omission of reading the article was approved in all the debates of the project. |
| 80 | Judgment C-221 of 2013 (MP Jorge Ivan Palacio Palacio). In that case, the approval of the project in one of the debates was surfed by ordinary vote. The Court then assessed the secretarial certification in conjunction with other elements, and within them the fact that there had been no request for a nominal vote: "Article 1 of Law 1431 of 2011, which amended the Article 129 of the 5th Act of 1992 as regards the nominal and public vote, I have in its numeral 16 that one of the exceptions to this kind of vote is presented, precisely, when there is unanimity in the vote, as in fact it happened. In this way, as none of the Senators requested a nominal vote or quorum verification, nor were any negative votes or impediments recorded, this requirement is duly satisfied". |
| 81 | MP. Maria Victoria Calle Correa, AV. Luis Guillermo Guerrero Perez. In this opportunity, the Court declared the inexilibility of a law approving the treaty (Law 1634 of 2013), after finding that it was approved by ordinary vote in the Plenary of the Senate, despite the existence of a negative vote on the part of three Senators. The Court held that such constances undermined the existence of unanimity and, therefore, the nominal and public voting rule was enforced. In his explanation of vote for this decision, Judge Luis Guillermo Guerrero maintained that " in the event that an ordinary vote on a bill is to be held without the secretary declaring the result. of the same, negative votes are expressed, it is feasible that the president of the respective committee or chamber will repeat the vote, so that the mandate of article 133 of the Constitution of the nominal vote can be fulfilled and public " |
| 82 | |
| 83 | MP. José Gregorio Hernández Galindo. In this pronouncement it was declared inexequable the bill of statutory law number 12/93 Senate, 127/93 House, " for which some provisions on the exercise of the activity of collection, management, conservation and dissemination of After concluding that in the plenary session of the Chamber where the second debate was held, it had not been possible to establish compliance with the decision-making quorum. |
| 84 | |
| 85 | In Case C-179 of 2002 (MP. Marco Gerardo Monroy Cabra), this Court held: " The Court of Justice within a criterion of flexibility that excludes rigorisms in the demands of the legislative process, adopted with a view to making the democratic principle effective, accepts that from the reading of Article 129 of the Law 5th of 1992, Organic of the Rules of Congress, it can be admitted that the form of ordinary vote, prior to the verification of the deliberative quorum [sic], is sufficient to accredit the approval by absolute majority of a a specific legislative proposal that requires it, if no congressman requests the Subsequent verification. Nevertheless, it calls for attention to the legislative body, urging it to verify in any future case the number of affirmative votes that allow to conclude with certainty that the constitutional requirements regarding the majority have been fulfilled. absolute". This criterion is reiterated in Case C-295 of 2002 (MP). Alvaro Tafur Galvis). As of Case C-307 of 2004 (MMPP. Rodrigo Escobar Gil, Manuel José Cepeda Espinosa, Alfredo Beltran Sierra), this rule is reiterated, but the reference to the deliberative quorum is corrected, specifying that the required is to verify the quorum "decision making". This is reiterated in Case C-1153 of 2005 (MP). Marco Gerardo Monroy Cabra) and C-502 of 2007 (Manuel José Cepeda Espinosa). |
| 86 | C-307 (MMPP). Rodrigo Escobar Gil, Manuel José Cepeda Espinosa, Alfredo Beltrán Sierra). |
| 87 | Thus, in the 2003 Auto 170 (MP. Alvaro Tafur Galvis), the Congress of a statutory bill was ordered to be referred back to Congress, as the information contained in the minutes and the secretarial certifications provided to the file only found that the initiative had been passed in the House of Representatives ' plenary session "by a majority of the present one hundred and fifty-four (154) Honorable House Representatives." The Court concluded that such information was insufficient to conclude if the absolute majority rule had been complied with, " since the act does not include discrimination of the votes, nor is there any express manifestation in the sense of indicating that the majority with which the project was approved was absolute as required by the Constitution. " |
| 88 | MP. Jorge Ivan Palacio Palacio, AV. Maria Victoria Calle Correa, AV. Nilson Pinilla Pinilla, SV. Mauricio González Cuervo, SV. Jorge Ignacio Pretelt Chaljub. At that time, the occurrence of a subsable vice was declared in the process of the statutory bill for mechanisms for citizen participation. After analyzing the certifications issued by the Secretary General of the Senate of the Republic, in which it was stated that "the bill was approved in the second debate with a quorum of 86 of 100 senators" and in its approval " [n] or no vote was submitted. "Secretary took as a basis the number of parliamentarians with which the initial registration of the session took place. However, the Court insists, this circumstance does not allow for accrediting if the statutory bill under examination was effectively approved with the absolute majority ordered by Article 153 of the Constitution; it could well occur, as indicated by the Parliamentary practice, which some congressmen will be temporarily absent or simply not voting". |
| 89 | certification, duly supported, of the quorum and the total number of votes with which the project was approved". In addition, "if the number of votes cast coincided with the number of congressmen present in the respective corporation at the time of voting, in accordance with the provisions of Article 123 (4) of Law 5 of 1992". |
| 90 | The General Secretariat informs that if there is a quorum decision .// The Presidency directs the General Secretariat to read the Order of the Day. // The General Secretariat is in conformity" (p. 7). After the transcription of the points to be dealt with, the report again certifies the existence of a quorum: "of the Presidency, Dr. Hernan Penagos Giraldo: Mr. Secretary, please read, certify that we have a quorum and If there is a quorum, please read to the Order of the Day. // Deputy General Secretary, Dr. Flor Marina Daza Ramírez: Mr. President at this time the secretariat informs you that there is a quorum decision. " (p. 14) |
| 91 | |
| Next Project: Bill number 334 of 2013 House, 175 of 2012 Senate, " by the A number of provisions relating to the legal regime applicable to public service companies domiciled and information and communications technology companies " [...] // Directorate of the Presidency, Dr. German Alcides Blanco Alvarez: Are there Obstacles, Mr Secretary, on the draft in question? // Secretary General, Dr. Jorge Humberto Mantilla Serrano: There is a record of Dr. Alejandro Carlos Chacon. Mr President, in the last sitting we were voting on impediments, it was lifted because at the end of the vote the decision-making quorum was broken. // Address of the Presidency, Dr. German Alcides Blanco Alvarez: Mr. Secretary, I understand that a new impediment was established yesterday; please read to the impediments that have been submitted to I would like to say that we are not going to be able to vote on the report. [...] " After the reading of the impediments made by the representatives Efraín Torres, Luis Antonio Serrano and Alfredo Deluque, it is noted that they are withdrawn from the chamber while the Plenary decides on the same. At this point the session continues as follows: "Direction of the Presidency, Dr. German Alcides Blanco Alvarez: Yes, Mr. Secretary, verifying that the representatives are absent. (i) In consideration the previously read impediments, announced that the discussion will be closed, the discussion is closed. Mr. Secretary, please order the opening of the register for the respective vote. // Secretary General, Dr. Jorge Humberto Mantilla Serrano: Cabin senors, open the register for the vote of these three impediments. [...] In order to inform you of the honorable representatives who are in the corridors and in the offices annexed to the Elliptical that we are in voting of impediments. //Direction of the Presidency, Doctor German Alcides Blanco Alvarez: Madam Secretary, please order the closure of the registration and certify the existing vote. // Secretary General, Dr. Jorge Humberto Mantilla Serrano: The registration is closed and the vote is as follows: // Mr. President is informed by the Secretariat that has been disintegrated the decision-making quorum, leaving a deliberative quorum". When reporting on the results of the vote, it was verified that sixty-three (63) representatives were present, who cast seventeen (17) votes in favour and forty-six (46) against the impediments to their consideration. (p.18). | |
| 92 | " In the Plenary Session of the date, there are 160 Representatives to the House, having in Dr. Carlos Alberto Escobar Cordoba, Representative to the House for the Department of Choco, was declared the Absolute Lack from April 10, 2013, by Resolution number 0999 of 2013, to Dr. Jaime Cervantes Varela, Representative of the department of the Atlantic, was declared the Absolute Lack to From March 21, 2013, by Resolution number 0809 of 2013, Dr. Alvaro Pacheco Alvarez, Representative of the department of Caqueta, was accepted to resign as of July 17, 2013, by Resolution number 1788 of 2013 and Dr. Pedro Mary Muvdi Aranguena, Representative for the department of Cesar, was suspended the Congressional Condition, by Resolution number 0344 of 2014, by Resolution number 0850 of May 20, 2014, to Dr. Didier Alberto Tavera Amado, Representative of the department of Santander, was declared the Absolute as from 20 May 2014. ' (p. 5). |
| 93 | By Auto of twenty-six (26) of August two thousand fourteen (2014), the Secretary General of the Senate was required for the second time " certification, duly supported, of the quorum and the total number of votes with which the bill was passed 145/2012 Senate and 329/2013 House, today Law 1722 of 2014"in the Plenary of the Senate,"and yes the total number of votes cast concurred with the number of congressmen present in the respective corporation at the time of voting, in accordance with the provisions of Article 123 (4) of Law 5 of 1992". In response to the request, by trade OPC-410/12 of the twenty-nine (29) of August of two thousand fourteen (2014), the official referred a copy of the Gacetas of the Congress No. 600 of 2013 (pp. 15 and 16, announced) and 662 of 2013 (pp. 7, 14, 30 and 31, project approval). I do not include any information about the manner in which the conciliation report was approved in the Senate Plenary. |
| 94 | In Act No. 58 of the Senate Plenary (June 18, 2014), published in the Congress Gazette No. 351 of 2014, is recorded after the call to list and the reading of excuses, the following information: "By Secretariat is reported to have registered a deliberative quorum .// Being 10:38 p. m., the Presidency states: Open the session and proceed with the Secretary to give reading to the Order of the Day, for this meeting .// By the Secretariat is read to the Order of the Day for the present session. [reading of the order of the day] // Presidency tells the Secretariat to continue with the next item of the Order of the Day [...]". |
| 95 | This is the case in the minutes: " [...] II Consideration and approval of minutes // By Secretariat, the proposal presented by the honorable Senator Juan Fernando Cristo Bustos is read. proposals read and, closed their discussion, is deferred until the regulatory quorum is satisfied.// The Presidency tells the Secretariat to continue with the next item of the Order of the Day .// III Announcement of projects [the Project Announcement]// IV Voting for Law or Legislative Act Projects // [...] The Secretariat reports that the quorum has been recorded. |
| The Presidency submits to the plenary the Order of the Day and, closed its discussion, this gives you your approval. // The Presidency tells the Secretariat to continue with the next item of the Order of the Day [...] " | |
| 96 | "Faith of Errats Bill of Law No. 113 of 2013 Senate, 207 of 2012 Chamber, by means of which is created the Fund of the Fiquero Parafiscal Promotion, rules for the collection and administration of the quota are established Fiquero Fomento and other provisions are dictated ". |
| 97 | These were: (i) "Draft Bill of Law No. 262 of 2013 Senate, 099 of 2012 Chamber, by means of which the obligation to provide transparent information to consumers is established financial and other provisions are dictated. " (ii) "Reconciliation Report to Bill 187 of 2012 Senate, 115 of 2012 House, for which the content of article 128 of Law 769 of 2002 National Land Transit Code is replaced." |
| 98 | With the coming of the Presidency, the honorable Senator Edgar Espindola Nino used the word: President is for a motion of order. I would like the Order of the Day not to have been exhausted, and there are several projects and it seems that the quorum is weakening, I would suggest to you very respectfully that we abate the projects and the interventions of the Senators will leave them for the final. I have a project there that is the day of coexistence and tolerance, which the United Nations asks to be approved. // The Presidency manifests: Which point, specifically ask Senator .// Recopres the use of the word the honorable Senator Edgar Espindola Nino: Point 16, President. // Manifest Presidency: Come then now, let's point to project 16, perfect Senator Espindola. " |
| 99 | certification, duly supported, of the quorum and the total number of votes with which it was approved the project". In addition, "if the number of votes cast coincided with the number of congressmen present in the respective corporation at the time of voting, in accordance with the provisions of Article 123 (4) of Law 5 of 1992". |
| 100 | General Secretariat of the House of Representatives. SG. CERTI.365/2014, issued on the four (4) September of two thousand fourteen (2014) and signed by Jorge Humberto Mantilla Serrano, Secretary General of the said Corporation (Folio 122, test book 2). |
| 101 | by means of which is declared cultural and artistic patrimony of the Nation to the Carnival of Riodirty Caldas. |
| 102 | It was dealt with the reports of conciliation to the Bill of Law number 207 of 2012 Chamber, 113 of 2013 Senate, by means of which the fund of the parafiscal promotion is created, rules for the collection and administration of a quota for the promotion of fishing and other provisions are dictated, and then from this report to Bill 014 of 2012 House, 151 of 2013 Senate, by means of which measures are dictated to prevent high blood pressure and excessive consumption of salt, sodium in the population |
| 103 | |
| 104 | The vote on two other projects, included on the agenda, was suspended. |
| 105 | Bill of Law No. 144 of the 2013 Chamber, for which grants are created credit support and support to students in higher education institutions of public nature, Law 21 of 1982 and Law 1607 of 2012 and other provisions are dictated. Thus was recorded in the minutes: " [...] Secretary, Dr. Jorge Humberto Mantilla Serrano, reports: The register is opened to vote on the proposal with which the paper ends, which asks that the second debate be given to that bill. Office of the Presidency, Dr. Hernan Penagos Giraldo: [...] Close the register, Mr. Secretary; announce the result of the vote. // Deputy Secretary, Dr. Flor Marina Daza Ramírez, reports: The register is closed, Mr. President. The Secretariat informs you that the decision-making quorum has been broken. " In the published voting record, it is stated that only 51 representatives voted for that moment. |
| 106 | Says the rule: " Paragraph.-When the Court finds procedural defects in the formation of the act subject to its control, it will order to return it to the authority that profirio it so that, if possible, Amend the observed defect. Vice-healed, it will decide on the exequability of the act " |
| 107 | Auto 089 of 2005 (M.P. Manuel José Cepeda Espinosa. SV and AV Jaime Araujo Renteria; SV Alfredo Beltran Sierra; SV. Jaime Cordoba Trivino; SV. Clara Inés Vargas Hernández); Case C-576 of 2006 (M.P. Manuel José Cepeda Espinosa. SPV Jaime Araujo Renteria); Auto 311 of 2006 (M.P. Marco Gerardo Monroy Cabra. SV Humberto Antonio Sierra Porto and Clara Ines Vargas Hernandez); Auto 081 of 2009 (M.P. Jaime Cordoba Trivino SV. Jaime Araujo Renteria. " |
| 108 | |
| 109 | Thus, among others, in the 2009 Auto 033 (MP. Jaime Cordoba Triviño) ordered the passage of an approved law to be dealt with by finding an infringement of the principle of publicity at the time of the fourth debate and the sanction of the bill. For its part, in the Autos 053 of 2010 (MP. Maria Victoria Calle Correa) and 127 of 2010 (MP. Gabriel Eduardo Mendoza Martelo) determined the existence of a subsable vice after finding irregularities in the announcement prior to the third debate. |
| 110 | Cfr. Constitutional Court, Auto 232 of 2007 (MP. Jaime Cordoba Trivino, with SV by Jaime Araujo Renteria. See also the A-089 of 2005 (MP. Manuel José Cepeda Espinosa). |
| 111 | [subhead] [passage omitted] (El Comercio, 23 March) Letra8pt"> [subhead] [passage omitted] (El Comercio, 23 March) Letra8pt"> [subhead] [passage omitted] (El Comercio, 22 March) that the Congress of the Republic had remedied a vice detected by the Constitutional Court: " In the case at hand, the Court warns the following: (i) the first number of laws-869 of 2004-is the one that identifies the approved law subject to the control exercised in this process; (ii) the will of the Legislator, in The Law 089 of 2005, was that of remedying the vice of form established by this Corporation in the formation of Law 896 of 2004; (iii) the Draft Law was always the same, that is, to 212/03 Senate -111/03 Chamber, as it can confirm in all the papers and debates that were submitted to the Congress, and in his referral for sanction | | Now, an administrative error has been made in the numbering, when a second number is assigned to the same law after the vice has been remedied in the formation of the same. However, this error does not change the content of the law or affect the process of its formation in the Congress of the Republic. For the Court therefore, the present analysis of constitutionality is understood to be carried out on Law 896 of 2004 that approved the " Convention between the Government of the Republic of Colombia and the Government of the Republic of Bolivia for the recovery of cultural and other specific stolen, imported or exported illicitly ", subscribed in the city of La Paz, at twenty (20) days of August of the year two thousand one (2001)". Rule of decision reiterated in the Autos 018 of 2007 (MP. Manuel José Cepeda Espinosa, SV. Jaime Araujo Renteria) and 232 of 2007 (MP. Jaime Córdoba Trivino). |
| 112 | on 28 November 2011, and their six annexes with their respective Appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I "Preferential tariff treatment". Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism" " |
GABRIEL EDUARDO MENDOZA MARTELO
TO AUTO 175/15.
Reference: LAT-435 file
Review of the constitutionality of Law 1722 of July 3, 2014 "by means of which the" Agreement of partial scope of commercial nature between the Republic of Colombia and the Republic of Colombia is approved " Bolivarian Republic of Venezuela, signed in Caracas, Venezuela, on 28 November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I Preferential tariff treatment. Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism" ".
Magistrate Rapporteur:
MARIA VICTORIA STREET CORREA
my explanation of vote in this case is precisely to leave aside my consideration according to which in some cases of ordinary votes of the congressmen in the terms in which it is provided in the article 129 of law 5 of 1992[1], will not always allow the Secretary of the Corporation to certify ex post and with full certainty the number of those present for purposes of establishing if there was Quorum deliberatory or decision-making, unless it has been requested, prior or concomitantly, for verification. Reality is the latter which, objectively, cannot be disaveable. So, that issuing that certification will not always be possible, as it seems to have happened at this time.
However, this exceptional situation cannot become the rule of thumb, even less so when the process we are dealing with subsist several indications suggesting that an ordinary vote could be held without the necessary quorum, if it is It is clear that the subsequent one was clearly frustrated by verifying its non-existence.
While in the face of an ordinary vote the existence of the Quorum is assumed, in my opinion there must always be the possibility that, if that presumption is questioned, it can be verified, reliably, that the vote was carried out with full compliance. of the rules that require the presence of a certain number of congressmen for the formation of the Quorum decision. This could not be established in this case, in a context where the veracity of the presumption of validity of the vote is seriously affected. The failure to clear this doubt was what prompted me to adhere to the majority decision, for it was not possible to rule out the fact that an ordinary vote could take place without the corresponding decision-making Quorum, which I have preferred not. to prohibit by gravity and implications that in a rule of law such as ours would imply a situation of such a nature.
magistrate vote clarification "
| 1. | |
| The Congressman may request that his vote be recorded in the minutes immediately and publicly. | |
| Any electronic procedure that accredits the sense of the vote of each Congressman and the total result of the vote. | |
Reference: LAT-435 file
Review of the constitutionality of Bill 145 of 2012-Senate and 329 of 2013-House of Representatives, "by means of which the" Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela, signed in Caracas, Venezuela, on 28 November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I "preferential tariff treatment". Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism"".
Magistrate Rapporteur:
Maria Victoria Calle Correa
Bogota, D.C., ten (10) de december de dos mil quince (2015)
The Full Court of the Constitutional Court, in compliance with its constitutional powers and the procedural requirements laid down in Decree 2067 of 1991, has proposed the following
AUTO
In the process of constitutional revision of Bill 145 of 2012-Senate and 329 of 2013-House of Representatives, "by means of which the" Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela, signed in Caracas, Venezuela, on 28 November 2011, and its six annexes with their respective Appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, Annex I 'preferential tariff treatment'. Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism"".
I. BACKGROUND
Based on the provisions of article 241 numeral 10 of the Political Charter, by trade in the General Secretariat of this Corporation on eight (08) July of two thousand fourteen (2014), the Legal Secretariat of the Presidency of the Republic referred authentic copy of Law 1722 from three (03) of July of two thousand fourteen (2014), for the purposes of its constitutional review[1].
By car of the twenty-two (22) of July two thousand fourteen (2014), it focused the knowledge of the process and arranged the practice of tests. Subsequently, the office profirio car of the twenty-six (26) of August, requiring to close the missing tests. The two (2) October of two thousand fourteen (2014), ordered to continue the procedure and, consequently, to set the process by the term of 10 days in order to allow the citizen intervention, as well as to give to the Attorney General of the Nation for the corresponding concept and communicate the initiation of the process to the President of the Republic, to the President of the Congress of the Republic and to the Ministers of Justice and Law; Commerce, Industry and Tourism; Finance and Public Credit; Agriculture and Rural Development and External Relations, to the Directorate of Taxation and Customs National-DIAN-to the Director of the National Institute of Drug and Food Surveillance-INVIMA-, to the Director of the National Planning Department and to the Superintendent of Industry and Commerce.
Fulfilled the procedures provided for in Decree 2067 of 1991, it is necessary for this Court to decide on the exilibility of the treaty, its annexes and the law that approves them.
II. TEXT OF THE CONVENTION THAT IS REVIEWED AND OF ITS APPROVAL LAW
Due to its extension, the text of the international instruments under control and its approval law 1722 of 2014, " by means of which the "Agreement of the Partial Outreach of Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela", signed in Caracas, Bolivarian Republic of Venezuela, is approved on November 28 Of 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I "Preferential tariff treatment". Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism"" is presented in an attached document (ANNEX 1). The full version of Law 1722 of 2014, which includes the text of the Agreement, the six (6) Annexes and their respective appendices, and the explanatory memorandum of the Bill, is published in the Official Journal of the European Union. Officer No. 49.201 of July 3, 2014.
III. INTERVENTIONS
National Tax and Customs Directorate -DIAN-
[2] National Tax and Customs Directorate [2], [2], has requested the Court to declare the constitutionality of Law 1722 [2]. 2014.
Considers that the agreement seeks to establish a preferential tariff treatment for imports of originating products, based on the historical trade relations between Colombia and Venezuela and the consolidation of the economic integration between the two countries. It stresses that the Agreement contains a set of trade defence measures, in order to ensure the safeguarding of national production of any harmful effects on its application.
Highlights that the instrument provides for rules aimed at ensuring reciprocity of tariff benefits, allowing effective access for the markets of the two countries. For the DIAN, "the Trade Agreement between Colombia and Venezuela reflects the principles of fairness and reciprocity, as the Constitutional Court has developed, because in addition to allowing the mutual benefit of the states members, the obligations assumed by both countries to preserve a mutual correspondence and do not bring with them an unfavorable or inequitable condition for either party"[3].
Ministry of Commerce, Industry and Tourism
The holder of this Portfolio intervened to defend the constitutionality of the law under review[4].
Presents a document divided into three sections: (i) formal examination; (ii) cross-cutting aspects relating to the treaty constitutionality study and, (iii) analysis The provisions of the AAP.C (Commercial Scope Agreement) are constitutional. In the first part, it takes a brief account of the procedure that took place from the negotiation and subscription of the Agreement until its approval in the Congress of the Republic to conclude that all the required requirements for the process of a law approving the international treaty, concluding that, in that sense it is adjusted to the Constitution.
In the second section, the concept emphasizes the legal aspects of the Agreement. In accordance with what is stated in this part of the document, the instrument subject to constitutional control is intended to "and strengthen the commercial relationship between Colombia and Venezuela, whose regulations will constituted the Cartagena Agreement for more than 30 years. This relationship was affected by the complaint that Venezuela made of the Cartagena Agreement. From this AAP.C [Commercial Nature Agreement], this regulation is restored, which will allow us to continue promoting the commercial exchange of goods and the relations of friendship and cooperation between them. countries"[5]. In this order of ideas, the Agreement develops several principles of constitutional order such as equity, equality, reciprocity and constitutional expediency and complies with important state purposes such as promoting general prosperity and improvement of the quality of life of the population.
Adds the concept that the instrument under study seeks to protect consumer rights by allowing them to have greater access to goods and services that can only be given by promoting free trade between the two countries. It clarifies that none of the provisions of the Agreement entail exploitation of natural resources on the territory of ethnic groups or limitations or impositions affecting the rights to ethnic and cultural diversity. Therefore, it considers that no prior consultation of the law was necessary for the approval of the law.
In the third paragraph, the Minister refers to the constitutional analysis of each of the provisions of the Agreement, concluding that these are in accordance with the Constitution and the jurisprudence of this Corporation in the field of treaties.
For the Ministry, the principles contained in the preamble of the Agreement are aimed at strengthening trade relations and Latin American economic integration, and specifically with Venezuela. The chapter first creates the conditions for preferential treatment of imports of products between Colombia and Venezuela and the mechanisms for the free movement of products. Concludes on this chapter that " is in line with the Constitution, since the creation of preferential treatment for imports of products in order to promote economic and productive development through the strengthening of the exchange fair balanced and transparent trade between Colombia and Venezuela constitutes a development of the objectives enshrined in the article 9, 226 and 227 of our Policy Letter"[6].
On Chapter 2 and Annex one of the Agreement, they seek to avoid creating inequitable conditions of competition that could affect local production and generate stable and predictable conditions for investors. According to the concept, these provisions are based on items 13, 100 and 227 Political Charter. When referring to the third chapter and Annex two, where the criteria for classification of origin of the goods are established, it assures the concept that "[e] n previous opportunities the Constitutional Court has found According to the Political Constitution, the rules of origin agreed upon in the trade agreements. [...] On that occasion the Court, which the rules of origin allow the goods originating from the other party signataria to enjoy the benefits of the tariff liberalization agreed upon in the FTA and at the same time to identify those products which cannot be beneficiaries of such benefits"[7].
In relation to the fourth and fifth chapters and annexes three and four, the Ministry notes that it seeks to establish criteria and guidelines for the protection of safety, life, human and animal health and the environment and the rights of consumers. These guidelines are aimed at ensuring that the respective technical regulations and evaluation procedures allow for a better operation of the Agreement and the fulfilment of its constitutional purposes.
Highlights the importance of Chapter 6 and Annex 5 in the sense that they lay down measures safeguarding national production of the potential detrimental effects of imports under unfair practices and inequitable trade. It states that[l] o trade agreements such as AAP.C with Venezuela, which consign rules on Trade Defense that include provisions on the adoption of safeguard, countervailing and anti-dumping measures, constitute a development of the constitutional mandate related to economic integration, contained in article 226 of the Fundamental Charter"[8]. It states that the Constitutional Court has given a favourable opinion on this type of measure on previous occasions.
Finally, it refers to the final chapters concluding that they are measures for the proper implementation of the Agreement and, therefore, of the constitutional purposes that it contains.
Foreign Ministry
The Director of International Legal Affairs of the Ministry of Foreign Affairs intervened to defend the constitutionality of the standards under study[9]. The concept highlights the importance of this Agreement for bilateral relations between Colombia and Venezuela and as a regulatory framework for the commercial relationship between these two countries. In addition, it is part of the objectives of the National Development Plan 2010-2014 with respect to "to implement an internationalisation strategy to increase participation in the global market to stimulate the competitiveness of national production"[10].
Special emphasis is placed on the fact that the Agreement under study was provisionally applied pursuant to Decree 1860 of 6 September 2012. The provisional application of the Treaties is governed by Article 25 of the Vienna Convention and allows the application of a treaty before it is ratified. Additionally, article 224 of the Political Constitution provides that the President of the Republic may give provisional application to those treaties that are economic in nature and commercial, which does not prevent it from being referred to Congress for approval in any case.
Recalca the concept that there are two scenarios in which a treaty can be applied provisionally: "[e] l first, it is an exceptional case, in which a treaty is provisionally applied, before it has been approved by the Congress of the Republic and therefore has set out the constitutional procedure foreseen for the entry into force of this type of instrument. In this case, the President of the Republic has the power to apply it provisionally, provided that the treaty complies with two conditions, namely: (i) that the treaty is of an economic and commercial nature; and (ii) that it has been agreed in the of international bodies. | | The second scenario, is the one in which it is sought to apply provisionally a treaty, that having dispensed the constitutional procedure for the manifestation of the consent of the State to be obliged, has not yet entered into force, in so much the other o Parties, by that time, have not met the internal requirements regarding their validity"[11].
For the Foreign Ministry, the Agreement under analysis meets the two requirements required for the first of the scenarios set out: (i) is a trade and economic treaty whose purpose is to determine the framework The legal framework for trade between Colombia and Venezuela and, (ii) was agreed at the level of the Latin American Integration Association (ALADI), an intergovernmental organization that promotes the expansion of the integration of the region.
The intervention continues to summarize the approval process in the Congress of the Republic, reaching the conclusion that all the required steps were taken.
Finally warns that "should the wording of an interpretative statement be considered, it is necessary for the Bolivarian Republic of Venezuela to accept such a declaration so that it can be considered as a authentic interpretation of the Treaty. | | On the other hand, if the formulation of a unilateral declaration that excludes or limits the legal effects of any of its provisions is considered necessary, it is necessary to take into account that this will require once again the negotiation of the specified Agreement"[12].
Ministry of Finance and Public Credit
Through proxy, the Ministry of Finance and Public Credit, submitted written defending the constitutionality of the Law under review[13].
Divides its intervention into two related parts, the first, with the processing of Law 1722 of 2014 and, the second, with the material analysis of the norm. He concludes, that the bill exhausted the established procedure and that the publications in the Congress Gazette were done in due form and the votes were unanimous.
In relation to the material analysis, it concludes that it is an Agreement whose purpose is consistent with the Constitution and is based on the principles of "negotiation on equity and reciprocity, national convenience, internationalization of economic relations and integration with Latin America, essential ends of the Social State of Law, national sovereignty and respect for the rights of ethnic groups"[14].
Industry and Commerce Superintendence
By trade of twenty-one (21) October of two thousand fourteen (2014)[15], the Coordinator of the Judicial Management Group of the Superintendence of Industry and Commerce presented the concept requesting to declare the Constitutional Agreement Partial Scope of Commercial Nature between Colombia and Venezuela, as well as its approval law. It clarifies in any case that it will refer in particular to Annex Three for being in direct relation to the functions of the Superintendence.
According to the concept, the annex number three, in which the obligation to develop, adopt and apply technical regulations, conformity assessment procedures and metrology is established, seeks the implementation of measures aimed at ensure the quality of exports, the protection of the health and the lives of people and animals, the preservation of the environment without this becoming a veiled form of discrimination in trade between countries.
Ministry of Agriculture and Rural Development
The Head of the Legal Advisory Office (E)[16] of the Ministry of Agriculture and Rural Development, referred to the Court for a declaration of the constitutionality of the Agreement with a partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela and its six annexes with their respective appendices.
According to the arguments put forward by the intervener, the Agreement and its annexes " respectedconstitutions, laws and commitments assumed by these countries in the different regional integration schemes of which both are part and in the bilateral agreements signed by each of them"[17]. It is an agreement that seeks to restore trade relations with Venezuela and which is a result of the commercial and productive development of both countries, where Colombia is particularly strong in the agricultural sector.
IV. CONCEPT OF THE NATION ' S ATTORNEY GENERAL
The Attorney General of the Nation, by concept No. 5850 of the thirteen (13) of November of two thousand fourteen (2014), asked the Constitutional Court to declare the Constitution, both the Agreement and their respective attachments[18].
The Tax View first carries out an analysis of the pre-legislative stage of the Agreement, reaching the conclusion that it was carried out in accordance with the formalities required by the law of the Treaties. He subsequently carried out a study on the procedure that took place before the Congress of the Republic, which concludes that it was "respectful of the Political Constitution". It makes special mention of the Conciliation Report that was made, bearing in mind that the text approved in the Plenary of the Senate of the Republic, had some errors of legal technique. The Accidental Commission, which produced the Conciliation Report, suggested to the two plenaries that the text approved in the House of Representatives Plenary, which was finally made and with respect to what it does not find, was accepted in its entirety. objection.
In relation to its material content, it stresses that the treaty aims to strengthen the integration and cooperation between the two countries. He affirmed that the Agreement conforms to the Constitution as long as it ", under conditions of equality, the exchange of products, while strengthening bilateral relations in trade matters, which are weakened as a result of the denunciation by Venezuela of the Cartagena Agreement (Andean Community) in April 22, 2006. Situation that, at the time, left without a commercial framework the relations of both countries and caused serious economic consequences"[19].
Concludes by pointing out that the Treaty is respectful of the sovereignty and independence of the Colombian State (arts). 2, 4, and 9 C.P.); it develops a constitutional purpose as is the process of economic integration of Latin American countries and is based on reciprocity and the equity of states (arts. 226 and 227 C.P.).
V. COURT CONSIDERATIONS
Constitutional Court Competition in the field of treaties and treaty approving laws
Article 241 numeral 10 of the Constitution gives the Constitutional Court jurisdiction to examine the constitutionality of international treaties and the laws of approval of the same. According to the established case law, this control is characterized by being (i) prior the improvement of the treaty, but after the approval of the Congress and the government sanction. I_aj"> (ii) automatic, as it must be sent directly by the President of the Republic to the Constitutional Court within six (6) days following the government sanction; (iii) integral, in the measure that this Court should analyze both the formal aspects and the materials of the law and the treaty, confronting them with all constitutional text; (iv) has res judicata force; (v) is a condition sine qua non for ratification of the corresponding agreement, and (vi) performs a preventive function, as its purpose is to guarantee both the supremacy of the Constitution and the fulfillment of the international commitments of the Colombian State[20].
In compliance with this mandate, the Court conducts this examination in two ways: (i) control over the formal aspects of international treaties and their approving laws and, (ii) the material validity control.
The first is aimed at verifying the validity of the representation of the Colombian State in the processes of negotiation and celebration of the instrument; the competence of the officials in the negotiation and signing of the treaty and, finally, the compliance with the rules of the legislative procedure in the formation of the approval law in the Congress. For its part, the examination of the material validity seeks to confront the provisions of the international treaty that is reviewed and that of its approval law with the totality of the constitutional norms. This test should be based on legal aspects, without addressing issues of convenience, opportunity, utility and efficiency.[21]
Based on these considerations, the Court passes to examine the approving law and the convention of the reference.
Verifying compliance with procedural requirements in the treaty subscription and its approval law
This examination implies that the following aspects are verified: (i) compliance with requirements in the negotiation and conclusion of the treaty; (ii) processing of the approval law in due form; (iii) timely referral of the treaty and its approval law to the Constitutional Court, and, if the above is true, (iv) conduct of the prior consultation with the ethnic groups, in case this is mandatory.
1. Negotiation and conclusion of the Treaty
The review of this aspect implies verifying that those who signed the instrument under control and its corresponding annexes had competence for this, either because they have direct powers of representation of the Colombian State or have full powers for the effect. In addition, if the treaty or its annexes received executive approval from the President of the Republic and its referral to the Congress of the Republic was made available.
In writing at the Constitutional Court Secretariat on 30 July of two thousand fourteen (2014)[22], the Ministry of Foreign Affairs said that for the subscription of the " Commercial Nature Outreach Agreement between the Republic of Colombia and the Bolivarian Republic of Venezuela" and their respective annexes, did not require the issuance of Full Powers, since it was the President of the Republic, Juan Manuel Santos, who signed the Agreement on behalf of the Republic of Colombia on twenty-eight (28) November of two thousand eleven (2011). He added that in relation to the annexes, these were signed by the Chancellor on April 15 (15) of two thousand twelve (2012).
According to the provisions of Article 7 of the Vienna Convention on the Law of the Treaties of 196923], the Heads of State, Government and Foreign Ministers are considered to represent the State, without the need for powers to accredit it. As a result, both the subscription of the main instrument and the six accompanying annexes were carried out in due form.
The three (3) October of two thousand twelve (2012), the President of the Republic, Juan Manuel Santos Calderón, imparted executive authorization and arranged to submit to the approval of the Congress of the Republic the Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela" and its six annexes. To this end, the Ministers of Foreign Affairs and Trade, Industry and Tourism presented to the Congress the Agreement and the bill approving the same[24].
2. Procedure carried out in the Congress of the Republic for the formation of Law 1722 of 2014
The laws approving international treaties must provide for the procedure of training provided for the ordinary laws, regulated in the articles 150 to 169 of the Charter and in the 5th Act of 1992 "For which the Congress Regulations are issued; the Senate and the House of Representatives". The only specific provision established in the Constitution for this type of legislation is that its procedure must be initiated in the Senate of the Republic, in accordance with the provisions of Article 154 final. It is also necessary to establish whether, by reason of its content, the procedure for prior consultation with ethnic groups should be brought forward, in accordance with Article 6.1. (a) of Convention 169 of the International Labour Organization, an integral rule of the constitutionality block.
According to these provisions, it is up to the Court to verify the following aspects:
(i) Starting the passage of the approval law in the Senate of the Republic (art. 154 C.P.)
(ii) Publication of the bill before giving it to the respective commission (art. 157 No. 1 C.P.).
(iii) Approval in the first debate in the respective committees of the Senate and the House, and in the second debate in the plenary sessions of these corporations (art. 157 No. 2 and 3 C.P.).
(iv) Publication and distribution of the report prior to the four corresponding debates and the text approved in each of them (arts. 144, 156 and 157 of the 5th Act 1992).
(v) Prior announcement in which the session is to be reported on the project discussion and vote in each of the four corresponding debates, according to the final article 160 of the Political Constitution (added by article 8 of Legislative Act 01, 2003)[25]. This rule mandates that (1) the date of the vote on the bills is previously announced; (2) the announcement of such a vote will be held in session other than that of the session in which it is submitted for approval; and (3) the vote will take place on the day on that was announced[26]. The Court has further noted that the announcement must be made by the President of the respective legislative cell, or the Secretary, by instructions from the first[27]. In addition, while a specific sacramental formula is not required to make the announcement, if expressions of which it is possible to infer clearly for the congressmen to be called and to be done for a later session, it is necessary to use tell, for "a preset and determined future date, or at least, determinable"[28].
(vi) That at the time of project approval in each of the four corresponding debates there was decision quorum. In the case of bills approving international treaties, it applies the general rule provided for in Article 145 of the Constitution, according to which the presence of the majority of the the members of the respective committee or plenary.
(vii) Voting in due form in each of the respective debates. In this regard, the article 133 Superior states that, except for the exceptions provided for in the law, the vote of the bills must be carried out in a way nominal and public[29]. Article 129 of the 5th Act 1992 (as amended by article 1 of Law 1431 of 2011), sets the assumptions in that, in order to make the principle of speed of procedures effective, it can except this general rule to support ordinary voting[30]. One of them, as provided for in paragraph 16 of the above standard, is presented when there is unanimity on the part of the In any case, the rule states that even in such a hypothesis, the nominal and public vote must be carried out at the request of one of the congressmen. Similarly, when using this form of voting, the possibility of verifying that, at the time of the vote, there was a decision-making quorum and that the project was approved by the majority, must be ensured. required[31].
(viii) Approval in each of the respective debates by the corresponding majority rule . In the case of the laws approving international treaties, the approval of the majority of the votes of the assistants is required (simple majority), according to the article 146 C.P.
(ix) Compliance with the gap between discussions rule provided for in Article 160 C.P., according to which between the first and the second debate in Each chamber shall have a period of not less than eight (8) days, and between the approval of the project in one of the chambers and the initiation of the debate in the other, no less than fifteen (15) days shall elapse.
(x) The reconciliation processhas been dispensed, if there are discrepancies between the approved texts in the Senate and the House of Representatives and the publication of the text approved by the Senate and Chamber plenary (art. 161 C.P.)
(xi) That the project process has not exceeded two legislatures (art. 162 C.P.)
(xii) That the project receives sanction from the Government and, in the case of objections, that the corresponding processing (arts) has been dispensed. 165 to 168 C.P.)
(xiii) Timely issuance of the treaty and its approval law to the Constitutional Court (art. 241 No. 10 C.P.)
The procedure is then examined under the Bill 145 of 2012 Senate and 329 of 2013, in order to establish whether it was carried out in accordance with the requirements outlined above.
2.1. Start of the procedure in the Senate of the Republic
The compliance with this requirement is verified, since the bill was presented on 24 October (24) of two thousand twelve (2012) before the Secretariat of the Senate of the Republic by the Ministers of Foreign Affairs, Maria Angela Holguin, and Commerce, Industry and Tourism, Sergio Díaz-Granados[32]. There he was established as the Law Project 145 of 2012 Senate.
2.2. Publication of the bill
The original text of the bill, along with the respective explanatory statement, was published in the Gazette of Congress No. 734 of twenty-six (26) October of two thousand twelve (2012)[33].
2.3. First debate in the Senate's Second Permanent Constitutional Commission
2.3.1. Report on presentation. " Senators Carlos Emiro Barriga Penaranda and Edgar Alfonso Gomez Roman were appointed as rapporteurs, who gave their presentation on the twenty-five (25) April of two thousand thirteen (2013), which ends with the proposal to give the first debate to the project. The paper was published in the Congress Gazette No. 230 of 2013[34], in accordance with article 156 of Law 5th of 1992. The twenty-nine (29) April of two thousand thirteen (2013) was delivered to the Senators of the corresponding Gazette copy[35].
2.3.2. Advertisements. The 2012 Senate Bill 145 was announced twice for the first debate in the Senate's Second Committee. The first announcement was made in the session of the seven (07) May of two thousand thirteen (2013)[36]"for discussion and voting of bills for the next session", and it was specified that the would carry out "next Tuesday, from ten in the morning", date corresponding to the fourteen (14) of May two thousand thirteen (2013). That day, the political control debate was held with the Minister of National Defense, which ended with a reserved session of the Commission, in which the projects contained in the Order of the Day were not discussed. At the end of this session the second announcement was made, indicating that their discussion would take place "on Wednesday, May 15 at 10:00 a.m., in this same enclosure"[37].
The announcements were made in accordance with the provisions of the final paragraph of article 160 constitutional (added by article 8 of the Legislative act 01, 2003), as (i) were made in advance of the session at which the project was finally approved; (ii) in both cases clearly identifies the session for which announced the project and, as discussed below, (iii) approval was taken on the date set in the second announcement.
2.3.3. Approval. As announced, the discussion and vote of the bill in the first debate took place in the session of the fifteen (15) May of two thousand thirteen of (2013), as stated in Act No. 32 of the Second Senate Committee, published in the Gazette of the Congress No. 738 of 2013.
2.3.3.1. At the time the project was approved, the decision quorum required in the article 145 Superior. This is inferred from the fact that, at the moment before the vote on the draft was carried out, in response to the intervention of one of the members of the Commission, who warned of the risk of the quorum being broken, a A list to which eight (8) of the thirteen (13) senators who are part of the Senate's Second Commission[38]. This is the case in the minutes of the session:
" [...] The Secretary of the Commission, Dr. Diego Alejandro González González, gives a reading to the final report of Ponencia:
Final Proposition
Give first debate to the Second Commission of the Senate of the Republic, the Bill of Law No. 145 of 2012 Senate, by means of which the agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela, [...] | | This read the proposal with which the report of presentation ends Mr. President.
The honorable Senator Edgar Espindola Nino is used to speak:
What happens is that some colleagues have gone out and we would not have the quorum to vote on it, I would propose as some of them arrive, we will play the next project that corresponds to me in the Order of the Day, once we will enter the vote; Because, as we do not have a quorum, in that order of ideas, we will be voting for a next sitting.
The President, Senator Carlos Fernando Motoa Solarte:
Asks the Secretary to call himself a list, to see how we agree with Senator Espindola's proposal.
The Secretary of the Commission, Dr. Diego Alejandro González González: It comes with the call to list:
Anibal Frame Avibranch
Montealegre Roy Leonardo Barriers
| Barriga Penaranda Carlos Emiro | Present |
Christ Bustos Juan Fernando
| Chavarro Cuellar Carlos Ramiro | Present |
| Espindola Nino Edgar | Present |
| Garcia Realpe Guillermo | Present |
Lozano Ramirez Juan Francisco
| Moreno Piraquive Alexandra | Present |
| Motoa Solarte Carlos Fernando | Present |
| Paredes Aguirre Miryam Alicia | Present |
Romero Galeano Camilo Ernesto
| Virguez Piraquive Manuel Antonio | Present |
I inform you, Mr. President, that eight (8) honorable Senators have been listed, as a result there is a quorum to decide "[39] (original denials and cursive).
2.3.3.2. The project was approved by ordinary vote in the following terms:
"President, Senator Carlos Fernando Motoa Solarte, says:
Once the quorum of the session has been verified, the report with which Senator Carlos Emiro Barriga has presented is put into consideration. It announced that it will be closed, closed. Does the Commission approve the final report on the implementation of the 2012 Senate Bill 145?
The Secretary of the Commission, Dr. Diego Alejandro González González:
He informs the President that the senators of the Commission have approved the final report of the report of the Bill of 145 of 2012 Senate, presented by Senator Carlos Emiro Barriga Penaranda.
The President, Senator Carlos Fernando Motoa Solarte:
Requests the Secretary to serve as a reading to the article.
Secretary Dr. Diego Alejandro González González, informs the President:
That there is the read default request for the articulated.
The President, Senator Carlos Fernando Motoa Solarte, informs the Commission:
This is a consideration of the Commission's senators, the proposal for the omission of the article's reading. It announced that it will be closed, closed. Does the Commission approve the omission of the article?
The President, Senator Carlos Fernando Motoa Solarte, informs the Commission:
This is a consideration of the senators in the project. It announced that it will be closed, closed. Does the Commission approve of the Article 145 of the 2012 Bill of Law?
Secretary Dr. Diego Alejandro González González, informs the President:
The article of the 2012 Senate Bill No. 145 has been approved by the Senate of the Commission.
Reading the project title.
The Secretary, Dr. Diego Alejandro González González, proceeds with the reading of the title of bill No. 145 of 2012 Senate:
Title. By means of which the agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela,in Caracas, the Bolivarian Republic of Venezuela, is approved on 28 of November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I "Preferential tariff treatment". Annex " source". Annex III "Technical regulations, conformity assessment and metrology". Annex IV "Health, animal health and plant health measures". Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism".
I would like to inform the President that the title of the bill is read.
The President, Senator Carlos Fernando Motoa Solarte:
Subject to the consideration of the Commission's Senators, the title of the bill. It announced that it will be closed, closed. Do the members of the Second Commission approve the title read?
The Secretary, Dr. Diego Alejandro González González, informs the Presidency:
The title of Bill 145 of 2012 Senate has been approved.
The President, Senator Carlos Fernando Motoa Solarte:
Question to the Commission Senators, if they want this bill to have a second debate in the Senate Plenary.
The Secretary, Dr. Diego Alejandro González González, informs the President:
The Senators of the Commission If they want this bill to move on to their second debate in the Senate Plenary.
President Senator Carlos Fernando Motoa Solarte appoints as the speaker for the second debate on Senators Carlos Emiro Barriga Penaranda and Juan Fernando Cristo Busto.
The following point of law is continued ... "[40] (original cursive and bold).
In the first debate, the Bill 145 Senate approved one of the assumptions that, according to article 129, number 16, of Law 5 of 1992 (as amended by the article 1 of Act 1431 of 2011) enables the general rule of public and nominal voting to be exceptionated, to go instead to the ordinary vote. In the present case, there are sufficient indications that the unanimous will of the members of the legislative cell who voted for the bill will be unanimous in giving approval for the bill to continue. It is thus inferred from the fact that the positive proposition with which the report was completed was approved, as well as the omission of the reading of the articles; it is also indicative of the existence of unanimity that will not be presented proposals against or other types of adverse events to this initiative, or requests to vote on the project in a nominal manner. On the other hand, the use of this method of voting in the present case did not prevent the existence of a decision-making quorum at the time of the vote (art. 145 C.P.) and, therefore, that the project was approved with the required majorities (art. 146 C.P.) The above, as soon as the vote was opened, a call was made to the list to which eight (8) of the 13 (13) members of the Senate's Second Committee responded. Thus, it was possible to comply with the voting rule provided for in Article 123 , number 4 of Law 5 of 1992, as it was possible to verify that the number of votes cast coincided with the number of congressmen present in the respective corporation at the time of voting.
2.4. Second Debate in the Plenary of the Senate of the Republic
2.4.1. Report on presentation. The Senators Carlos Emiro Barriga Penaranda (Coordinator Rapporteur) and Juan Fernando Cristo, gave positive presentation for the second debate which was published in the Gazette of the Congress No. 380 of the six (06) of June of two thousand thirteen (2013), In addition, the publication of the final text approved in the first debate by the Second Permanent Constitutional Commission is included.
2.4.2. Advertisements. The bill was announced the eleven (11) of June of two thousand thirteen (2013) in the Plenary of the Senate, to be discussed and approved in "the next Plenary Session of the honorable Senate of the Republic day Wednesday, June 12 2013", as stated in Act No. 65 of the same date, published in the Congress Gazette No. 600 of 2013[41].
2.4.3. Approval. Indeed, the project was discussed and approved by means of a ordinary vote on Wednesday twelve (12) June of two thousand thirteen (2013), as stated in Act No. 66 of that date, published in the Gazette of Congress No. 662 of the thirty (30) August two thousand thirteen (2013).
2.4.3.1. In relation to the requirement of decision-making quorum, the Secretary General of the Senate of the Republic did not refer to this Corporation the certification regarding the quorum with which the bill was approved. Required on this point, it was limited to sending the publication in the Congress Gazette of the corresponding plenary minutes[42]. Revised this, it is noted that in the call to list that appears as the first point of the minutes, ninety-four (94) senators answered, and it consists that they stopped attending with excuse (4) senators[43]. However, it is not possible to determine with certainty whether such was the number of senators present in the chamber, making up the decision-making quorum, at the time of the vote on the Bill 145 Senate. In this respect, the immediate item on the agenda was voted nominally in accordance with the minutes, with the presence in the chamber of fifty-eight (58) senators being verified at the moment prior to the vote on the bill. examination object[44]. Likewise, after the approval of this, the next item on the agenda was also voted in a nominal manner, which allowed the presence of a total of fifty-nine (59) senators[45]to be observed in the enclosure. Given the lack of certification of the required quorum, the information contained in the minutes allows the Chamber to infer in a reasonable manner that at the time of the vote on the Bill 145 of 2012 Senate, there was a quorum of decision-making. in the chamber at least fifty-eight (58) of the ninety-eight (98) senators who for that legislature were in the exercise of their functions.
2.4.3.2. Project approval was done by ordinary voting in the following terms:
"SENATE BILL NUMBER 145 OF 2012 SENATE
by means of which the "Agreement of the Partial Outreach of Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela", signed in Caracas, the Bolivarian Republic of Venezuela, is approved on 28 June. November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I "Preferential Tariff Treatment". Annex II 'Regime of Origin'. Annex III "Technical regulations, conformity assessment and Metrology". Annex IV 'Health, Animal Health and Plant Health Measures'. Annex V "Commercial Defence Measures and Agricultural Special Measure". Annex VI "Dispute Settlement Mechanism".
The Presidency indicates to the Secretariat to read the proposal with which the presentation ends.
By Secretariat, the positive proposal with which the report of the report ends is read.
The Presidency submits to the plenary the proposal read and, closed its discussion, it gives its approval.
Second debate opens
At the request of the honorable Senator Carlos Emiro Barriga Penaranda, the Presidency submits to the plenary the omission of the reading of the article of the bill and, closed its discussion, it gives its approval.
The Presidency submits to the plenary the article of the bill, and closed its discussion question: Does the proposed article adopt the plenary? And it responds in the affirmative.
The Presidency tells the Secretariat to read the title of the project.
By Secretariat is read to the title of the Bill of Law No. 145 of 2012 Senate, by means of which the "Agreement of Partial Outreach of Commercial Nature between the Republic of Colombia and the Republic of Colombia" is approved. Bolivarian of Venezuela, signed in Caracas, Bolivarian Republic of Venezuela, on 28 November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I 'preferential Tariff Treatment'. Annex II 'Regime of Origin'. Annex III "Technical regulations, conformity assessment and Metrology". Annex IV 'Health, Animal Health and Plant Health Measures'. Annex V "Commercial Defence Measures and Agricultural Special Measure". Annex VI "Dispute Settlement Mechanism".
Read this, the Presidency submits it to the plenary, and closed its discussion question: Do the members of the Corporation approve the title read? And they give it their approval.
Fulfilled the constitutional, legal, and regulatory procedures, the Presidency asks: Do the senators present that the approved bill has its way in the honorable House of Representatives? And these respond in the affirmative.
The Presidency tells the Secretariat to continue with the next project "[46] (original denials and cursive).
Also in this case are the conditions set forth in article 129 of Law 5th of 1992 (as amended by article 1 of Law 1431 of 2011), which are met in this case. enable ordinary voting. The unanimous will of the members of the Senate Plenary to give approval to the bill is inferred: (i) of the approval of the report, without any of the senators raising objections or proposals. to the contrary; (ii) to approve the read omission of the articulated; also, (iii) because no requests were made to vote the project in nominal or other form manifestations of dissent to this initiative. On the other hand, thanks to the fact that the votes immediately before and after the one that was analyzed were made in a nominal manner, it was possible to infer the existence of a decision-making quorum at the time of the vote (art. 145 C.P.), made up of at least fifty-eight (58) senators; therefore, the bill was approved with the required majorities (art. 146 C.P.) Similarly, it can be reasonably co-established that the voting rule provided for in Article 123 is fulfilled in number 4 of the 5th Act of 1992.
2.4.4. Publication of the final text. The final text approved in the second debate in the Senate Plenary was published in the Congress Gazette No. 483 of 2013[47].
2.5. Third debate in the Second Permanent Constitutional Commission of the House of Representatives
2.5.1. Report on presentation. The Bill 145 of 2012 Senate was referred to the House of Representatives where it adopted the number 329 of 2013. In the Second Permanent Constitutional Commission, Representative Carlos Eduardo Leon Celis was appointed as the only rapporteur. His speech, which ends with the proposal to give the first debate to the bill in the House of Representatives, was published in the Gazette of Congress No. 768 of the twenty-six (26) of September of two thousand thirteen (2013).
2.5.2. Advertisements. The Bill 329 of 2013 House, 145 of 2012 Senate, was announced in accordance with the provisions of the Constitution, by the Secretary of the Second Committee of the House of Representatives and on the instructions of the President of that Commission, in Twenty-three (23) October session of two thousand thirteen (2013)[48]: "[p] roectos to be discussed and voted on in the next Commission session where bills are discussed and voted on". President precise immediately after the same one would take place " today in eight (8) days at 9 and a half in the morning, with the presence of the Ministers who have presented these projects", that is, for the session corresponding to the thirty (30) October next.
2.5.3. Approval. According to the announcement, the discussion and vote of the bill in the Second Committee of the House of Representatives took place on the thirty (30) October of two thousand thirteen of (2013), as stated in the Act No. 19 of the date, published in the Congress Gazette No. 116 of the first (01) of April two thousand fourteen (2014).
2.5.3.1. Regarding the decision-making quorum required by Article 145 of the Constitution, according to the record, the attendance register states that the session will be The presence of seven (7) of the nineteen (19) representatives that make up this legislative cell, and in the course of this one, ten (10) representatives were present, for a total of seventeen (17) attendees. In the meantime, before the vote on the draft law was initiated, an impediment presented by one of the members of the Commission, by ten (10) votes in favour and two (2) against, was approved in nominal form, which allowed verification of the the existence of twelve (12) representatives in the enclosure at the moment prior to the approval of this initiative and, with this, the existence of a decision-making quorum[49].
2.5.3.2. After reading the paper report, and accepted the impediment formulated by one of the representatives, the project was approved by means of ordinary vote, as follows:
"Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
the light of the Commission's proposal to end the report, the discussion will be opened and the Commission will be closed, will the Commission approve it?
The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak:
Mr President, the proposal has been approved with the end of the report.
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
Articulated of the project Madam Secretary.
The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak:
Mr. President, I must inform you that they are 3 articles duly published in the corresponding Gazette .
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
Do you have proposals?
The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak:
No Mr. President.
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
In consideration of the Commission, the article of the project, the discussion opens, is going to be closed, it is closed. Does the Commission approve this?
The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak:
If you approve it, Mr. President.
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
The formalities of law, after I grant him the use of the word Representative Pedro Pablo Pérez, Representative Zuluaga also afterwards.
The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak:
Yes Mr. President. Title of the project by means of which the Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela is approved, [...]. According to what the Lord has determined The president is asked the honorable representatives if they approve this title of the bill read and you want this bill to go to second debate and become law of the Republic.
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
In consideration of the Commission the formalities of the present bill, the discussion is opened, it will be closed, it is closed. Does the Commission approve these?
The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak:
The title read, Mr. President, has been approved.
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
The speaker is appointed for the second debate in the Chamber of the House to the honorable Representative Carlos Eduardo Leon Celis, and in his order, the representative Pedro Pablo Pérez and the ministers have the floor.
The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak:
Excuse Me, Mr. President, and in addition to the fact that there are no problems in the formality in the process, the representatives want this bill to be the law of the Republic and to move on to the second debate.
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
I had forgotten.
The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak:
No, Mr. President, it was that you interrupted me.
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
The lady who agreed late, but formally approved by the Commission all the formalities required by the bills, and in this case the approval of this agreement.
The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak:
Yes Mr. President.
[...]
The honorable Representative Augusto Posada Sanchez makes use of the word:
Thank you President, to put on record that I have just made income after the project was approved and that it is discussed about it, has already been approved and evacuated by the Commission, thank you President.
Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega:
And you were approved by Representative Posada. Well, Representative Pedro Pablo Pérez has the floor.
[...]
President (e) honorable Representative Juan Carlos Martínez Gutiérrez has been used to speak:
Thank you Representative, let us continue with the Order of the Day Madam Secretary "[50] (original denials and cursive).
Also in the present case are the requirements that, according to article 129, number 16, of Law 5 of 1992 (as amended by article 1 of Law 1431 of 2011), are met. authorize the exception to the nominal and public voting rule. Although this opportunity did not omit the reading of the article, the unanimous will to approve the project can be inferred, since: (i) the positive proposition with which the report was finished was approved and I do not know Additional proposals were made; (ii) none of the members of the Commission requested the roll call of this initiative, and (iii) the interventions of the congressmen during the debate They were on course to support the initiative. On the other hand, the use of ordinary voting did not prevent the existence of a decision-making quorum at the time of the vote (art. 145 C.P.); this in turn allowed to verify that the project was approved with the required majorities (art. 146 C.P.) and in compliance with the voting rule provided for in Article 123 , number 4 of the 5th Act of 1992.
2.6. Fourth debate in the House of Representatives Plenary
2.6.1. Report on presentation. At the end of the vote on the bill in the Second Committee of the House of Representatives, it was appointed as the rapporteur for the debate in plenary with Rep. Carlos Eduardo Leon Celis. His presentation, which ends with the proposal to give second debate in the Chamber to the project, was published in the Gazette of Congress No. 965 of twenty-six (26) of November of two thousand thirteen (2013).
2.6.2. Advertisements. The bill was announced three times in the House of Representatives Plenary. The first announcement was made on the 13th (13th) May of two thousand fourteen (2014) "for next Tuesday, May 20, or for the Plenary Session in which bills or legislative acts are discussed"[51]. In the plenary session of the twentieth day (20) in May, this initiativenot discussed[52], so that, at the end of it, projects were announced "for the next 27 May 2014", among them the initiative that is currently under control[53]. In the session of twenty-seven (27) of May two thousand fourteen (2014) it was also not possible to debate this project, for which, at the end of it, a third announcement was made for "the day of tomorrow May 28, 2014 at 2:00 p. m."[54].
It is noted that the three announcements were made in due form, since: (i) were made in advance of the date when the initiative was actually discussed under examination; (ii) in all of them the session for which the discussion of the initiative was scheduled was determined, and (iii) there was continuity in the chain of announcements, because the initiative was announced in succession in the Thirteen (13), twenty (20) and twenty-seven (27) sessions in May of two thousand fourteen (2014), to be debated in the following session, until it finally took place in the twenty-eight (28) session of May of the same year. Therefore, compliance with the requirement of article 160 final article of the Constitution was fulfilled.
2.6.3. Approval. According to the third announcement, on twenty-eight (28) May of two thousand fourteen (2014) the bill was discussed and approved, as stated in the Plenary Act No. 277 of that date, published in the Gazette of Congress No. 270 of the nine (9) of June two thousand fourteen (2014).
2.6.3.1. In principle, project approval was surfed by ordinary vote, as follows:
Direction of the Presidency, Dr. Hernan Penagos Giraldo:
Let's continue with the agenda, first point.
Secretary General, Dr. Jorge Humberto Mantilla Serrano:
With the modifications.
Bill number 329 of 2013 House, 145 of 2012 Senate, by means of which the "Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela" is approved [...].
[...]
Mr. President, on this project there is a record of Dr. Augusto Posada Sanchez, where he says: | I am on record that I have not participated and will not participate, nor have I voted nor will I vote on Bill 329 of 2013 House, 145 of 2012 Senate. Trade Agreement between the Republic of Colombia and the Bolivarian Republic of Venezuela.
[...]
Direction of the Presidency, Dr. German Alcides Blanco Alvarez:
Mr. Secretary, please read to the proposal with which the report of the paper corresponding to the Bill of Law No. 329 of 2013 ends.
Secretary General, Dr. Jorge Humberto Mantilla Serrano:
Says this: It ends the presentation with the following proposition that has already been published in the Gazette of the Congress.
For the above stated and based on the provisions of the Political Constitution and the law, I allow myself to propose to the honorable representatives to give second debate to the Bill of Law No. 329 of 2013 Chamber, 145 of 2012 Senate, in the Plenary of Camara, [...]. | | Signature: Carlos Eduardo Leon Celis, Representative to the House, and annexed the statement.
It is noted, Mr. President, that Dr. Posada Augusto is not in the chamber while this Project is being dealt with.
It has been read, Mr. President, the proposition with which the presentation ends.
Direction of the Presidency, Dr. German Alcides Blanco Alvarez:
In consideration of the proposal with which the paper corresponding to the House Bill 329 of 2013 ends, the discussion continues, it is going to close, it closes. Does the Plenary Assembly approve the proposal to end the report?
Secretary General, Dr. Jorge Humberto Mantilla Serrano:
So the Plenum wants it, it has been approved.
Direction of the Presidency, Dr. German Alcides Blanco Alvarez:
Articulate, Mr. Secretary.
Secretary General, Dr. Jorge Humberto Mantilla Serrano:
It consists of three articles without any proposal and was published in the Congress Gazette, Mr. President, to take the three articles into consideration.
Direction of the Presidency, Dr. German Alcides Blanco Alvarez:
In consideration of the articles corresponding to the House Bill 329 of 2013, the discussion is being held, announced that the discussion will be closed, the discussion is closed. Does the Plenary Assembly approve the article corresponding to the House Bill 329 of 2013?
Secretary General, Dr. Jorge Humberto Mantilla Serrano:
It has been approved, Mr President.
Direction of the Presidency, Dr. Hernan Penagos Giraldo:
Title and question, Mr. Secretary.
Secretary General, Dr. Jorge Humberto Mantilla Serrano:
Bill number 329 of 2013 House, 145 of 2012 Senate, "by means of which the" Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela " is approved, signed in Caracas, Bolivarian Republic of Venezuela, on 28 November 2011 ', and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: | | Annex I' Tariff treatment preferential ". | | Annex II" Regime of origin ". | | Annex III "Technical regulations, conformity assessment and metrology". | | Annex IV "Health, animal and plant health measures". | | Annex V "Trade defence measures and special agricultural measure". | | Annex VI " Solution mechanism of controversies. "
And the question, because it is the last debate of the Project, if it wants the honorable Plenary of the House that is Law of the Republic.
Direction of the Presidency, Dr. German Alcides Blanco Alvarez:
In consideration then the title read by the Secretary and the question of whether the Plenary wants the present Project to become Law of the Republic.
Secretary General, Dr. Jorge Humberto Mantilla Serrano:
Yes, Mr. President. It has been approved by the Plenary.
Direction of the Presidency, Dr. Hernan Penagos Giraldo:
Continue, Mr. Secretary, with the Order of the Day[55].
It follows from the foregoing that there are also elements in this opportunity that allow us to infer the unanimous will to approve the bill by the members of the House of Representatives who participated in the vote. Thus, (i) approved the positive proposal with which the report of presentation was concluded, without any of the parliamentarians making proposals against or in any way express their opposition to this initiative; manner, (ii) none of the attendees requested that the roll call of the project be carried out. Therefore, in principle, the requirements that, according to Article 129, number 16, of the Law 5 of 1992 (as amended by article 1 of Law 1431 of 2011), authorize, are met. the exception to the nominal and public voting rule.
2.6.3.2. To verify the conformation of the decision quorum required by Article 145 Superior, the Secretariat of the House of Representatives was required to submit " certification, duly supported, of the quorum and total number of votes with which the bill of law 145/2012 Senate and 329/2013 House, today Law 1722 of 2014"in the plenary of the Chamber" and if the total number of votes cast coincided with the number of congressmen present in the respective corporation at the time of voting, as set out in article 123 number 4 of the 5th Act of 1992"[56].
In response to the request made by the Court, the Secretary of the House of Representatives provided a record of the total number of congressmen who took part in the plenary session of the House of Representatives. discussed this initiative, for a total of one hundred and thirty-five (135). However, it does not inform whether the number of Members of Parliament present at the time of its approval was, in fact, the last thing to be found in order to verify the decision-making quorum and what was requested of it by the Court of Justice. will certify[57].
2.6.3.3. In view of the lack of concrete information of the deliberative and decision-making quorum, after consulting the relevant minutes, it was possible to establish that: (i) both at the moment, and after the reading of the agenda, the Secretariat reported on the existence of a decision-making quorum[58]; (ii) after reading the order of the day, and after proposing some modifications that were eventually withdrawn, that was approved by ordinary vote, followed which was initiated to the discussion of the Draft Law 329 of 2013 Chamber, 145 of 2012 Senate, which was as the first item on the agenda; (iii) just below, when considering the second draft of the agenda, proceeded to vote in nominal manner the impediments presented by some Members of Parliament, but at the time of closing the register and announcing the outcome of the vote, it was reported that the decision-making quorum[59]had been disintegrated.
Thus, the Court found that during the procedure in the fourth debate of the Bill 145 of 2012 Senate, 329 of 2013 Chamber, it was incurred in a vice of procedure, for the way in which the vote was carried out and recorded in the record This initiative did not permit the establishment of the number of congressmen who gave their approval to the bill. For the same reason, it was not possible to verify that at the time of the vote, the condition of validity of the vote provided for in Article 123 4) of Law 5 of 1992, or with the requirement of The decision-making quorum provided for in Article 145 Superior.
Through the order 175 of the six (06) May of two thousand fifteen (2015)[60], the Plena Chamber returned to the House of Representatives Law 1722 of the three (03) of July of two thousand fourteen (2014), in order that the vices of the procedure detected, as follows: compliance with the requirement of the quorum decision in the fourth debate of the draft, as how the manner in which the ordinary vote of this initiative was carried out and recorded in the minutes did not allow to establish the number of members who gave their approval to the project. Therefore, it was not feasible to verify that at the time of the vote the condition of validity provided for in the article 145 Superior, nor with the requirement contained in the article 123, numeral 4, of Act 5th of 1992. The same irregularity was presented during the approval of the conciliation report in the plenary sessions of the Senate and the House of Representatives.
In response to the above requirement, the Secretary-General of the House of Representatives[61], notes in writing of the three (03) of June two thousand fifteen (2015), in order to correct the procedural vices in the substantiation of the presentation in the second debate, which:
" In Plenary Session on June 2, 2015, the House of Representatives was considered and approved without modifications in the second debate, the paper, the article and the title presented by the speakers to the Bill of Law No. "[...]" [...] "[...]" [...]] "[..." [...] " [passage omitted] (El Universo, 12 March) Senate Approves The 2012 Senate-145 Senate-145 [...] (Law 1722 of July 3, 2014).
The above giving compliance to Auto No. 175 of May 06, 2015, offered by the Honorable Constitutional Court, and the number 2, article 2 and 220 of Law 5 of 1992, (Congressional Regulation), and in accordance with article 5 of Legislative Act No. 1 of 2009, the procedure for the procedure in this Corporation was corrected to the draft Law in comment. The above as stated in the Plenary Session Act No. 067 of June 2, 2015, prior to its announcement in Plenary Session on June 01 of the currents, according to the Minutes of Plenary Session No. 066 " (original negrills and capital letters)[62].
By car of twenty-three (23) of September two thousand fifteen (2015), the Secretary General of the House of Representatives was required to send to the Constitutional Court of the Chamber of the Plenary Session No. 067 of the two (02) of June of two thousand fifteen (2015) and the Chamber of the Plenary Session Act No. 066 of the first (01) of June of two thousand fifteen (2015), with indication of the gazettes in which they were published, for the purposes of making the verification corresponding to the deliberative quorum and Decision in the procedure of the fourth debate of the Bill of Law 145 of 2012 Senate, 329 of 2013 Chamber in the Plenary the House of Representatives[63].
In response to the previous requirement, the thirty (30) September of two thousand fifteen (2015) the Secretary General of the House of Representatives[64], referred to an original copy of the Gazette of Congress No. 551 of 2015, in which Plenary Session Act No. 066 of the first (01) of June of two thousand fifteen (2015)[65], in which the announcement of the "projects for the ordinary session of the day of tomorrow June 2, 2015 (sic) or the when bills or administrative acts are dealt with", with reference to" Auto number 175 of May 2 (sic) of 2015 Constitutional Court, remedy procedure vice"[66]. Also, attached copy of the printed record of the Gazette of Congress No. 673 of 2015, in which the Minutes of Plenary Session No. 067 of two (02) of June of two thousand fifteen (2015)[67]was published. In the development of the session it can be read that approved by a nominal and public vote, and with the constitutionally required majority (art. 146 C.P.), the proposal of the favorable presentation, the article, the title and the question "if it is the wish of this plenary, that the bill becomes Law of the Republic?". The relevant paragraphs are then transcribed:
" Second point, correction of procedural defects, number two, article two, Law 5th of 92, presentation for second debate, in order of the Auto 175 of May 6, 2015 offered by the honourable Court Constitutional.
Bill number 329 of 2013 House, 145 of 2012 Senate, by means of which the "Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela" is approved, signed in Caracas, Bolivarian Republic of Venezuela, on November 28, 2011, and its six annexes, with their respective appendices, signed in Cartagena, Republic of Colombia on 15 April 2012, [...].
Rapporteur: Representative Carlos Eduardo Leon Celis, publication for the second debate Congress Gazette number 965, 2013, was announced for this debate in June 2015.
The paper says so, it ends with the following:
Under these considerations I allow myself to be in favor of the bill in the terms of the following.
Proposition
For the above and based on the provisions of the Political Constitution and the law, I allow myself to propose to the honorable representatives to give second debate to the Bill No. 329 of 2013 House, 145 of 2012 Senate; [...]
Signature,
Carlos Eduardo Leon Celis.
Mr President, the report for the vote on the plenary session has been read.
Address of the Presidency, Fabio Raul Amin Saleme:
Thank you, Secretary, I want the plenary to have enough illustration in front of what we are doing, the second point of the Order of the Day is the correction of a vice of procedure, vice of procedure on the Bill number 329 of 2013 Camara, 145 of 2012 Senate, in compliance with the self proffered by the honorable Constitutional Court.
Read the paper that asks to give second debate to the bill, announced that the discussion is opening, and we are voting for the proposal with which the report of the presentation of the bill that requests the second debate is being ended. announced that the discussion will be closed. Dr. lina Barrera; Mr. Secretary, the discussion is closed and the plenary is asked, if you approve of the proposal with which the report of the report of the Bill of 329 of 2013 House, 145 of 2012 Senate ends?
The record is opened. Voting Yes, the proposal with which the paper ended is approved. Voting No, he would refuse the same.
Secretary General, Jorge Humberto Mantilla Serrano:
The register is opened to vote on the proposal with which the paper ends, asking that this bill be debated in the second place. [...]
[...]
Address of the Presidency, Fabio Raul Amin Saleme:
Honorable representatives we are voting for the correction of the procedural vice of a bill, and at this moment we are considering the proposal of the paper, announced that the discussion will be closed.
Secretary General, Jorge Humberto Mantilla Serrano:
Maria Fernanda Cabal, votes YES.
Address of the Presidency, Fabio Raul Amin Saleme:
Mr. Secretary, last call to vote. Honourable representatives I thank you for making use of the electronic system.
Secretary General, Jorge Humberto Mantilla Serrano:
Hernan Prada, vote YES.
Address of the Presidency, Fabio Raul Amin Saleme:
[...]. Mr Secretary, we will order to close the register and announce the outcome of the vote.
Secretary General, Jorge Humberto Mantilla Serrano:
Cabin lords close registration, suspend voting, close registration and vote is as follows:
By the YES 85 electronic votes, 2 manuals; for a total by the YES of 87 votes, by the NO zero electronic votes, zero manuals.
Mr. President has been approved the report of presentation that seeks to be given second debate to the Bill number 329 of 2013 House, 145 of 2012 Senate, articulated Mr. President.
Vote Log Publication
[...]
Address of the Presidency, Fabio Raul Amin Saleme:
Thank you Secretary, you have approved, in the procedure for the correction of vice, the proposal with which the report of the report ended. We continue Mr. Secretary with the articulate, how many are the articles?
Secretary General, Jorge Humberto Mantilla Serrano:
Mr. President, this project has three articles, which have already been published in the Gazette of the Congress, has no modification, and so say the articles: | | [...].
Mr President, the articles have been read.
Address of the Presidency, Fabio Raul Amin Saleme:
Thank you Mr. Secretary. In consideration the block of three articles that have been read and have no proposition. I announce that the discussion opens, gentlemen, representatives, we are discussing the article of the bill. He announced that the discussion will be closed, the discussion will be closed. Mr Secretary, the register opens, voting YES, the block of three articles is approved; voting NO, they would refuse.
Secretary General, Jorge Humberto Mantilla Serrano:
The register is opened to vote on the articles of the Bill of 329 of 2013 House, 145 of 2012 Senate. Dr. Maria Fernanda Cabal, votes YES.
Address of the Presidency, Fabio Raul Amin Saleme:
Gentlemen representatives we are voting on the block of three articles of House Bill 329 of 2013 House, 145 of 2012 Senate.
Secretary General, Jorge Humberto Mantilla Serrano:
Jaime Serrano, vote YES.
Address of the Presidency, Fabio Raul Amin Saleme:
[...].
Gentlemen representatives, last call to vote, prior to the management of the registration. Mr Secretary, we are going to order the registration to be closed and we announce the result of the vote.
Secretary General, Jorge Humberto Mantilla Serrano:
The record is closed. Cabin lords please close the register. The vote is as follows:
By the SI 85 electronic votes and 2 manuals, for a total by the YES of 87 votes; by NO 1 electronic vote, none manual, for a total by NO of 1 vote. Mr President, the articles have been adopted, I repeat with 85 votes in favour and 1 against.
Address of the Presidency, Fabio Raul Amin Saleme:
Thank you Secretary, approved the proposal of the paper and approved the article. Let's consider the Title.
[...]
Vote Log Publication
[...]
Address of the Presidency, Fabio Raul Amin Saleme:
Thank you Secretary, approved the articulated, we consider then the title and the question. Secretary, let's read the title as it comes posted and we announce the question please.
Secretary General, Jorge Humberto Mantilla Serrano:
If Mr. President, title by means of which is approved the "Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela" [...]
Address of the Presidency, Fabio Raul Amin Saleme:
El Pais] Thank you, Mr. Secretary for consideration, and the question, if it is the wish of this plenary, that the bill will become Law of the Republic? title and the question, Doctor Gallon, announced that the discussion will be closed, the discussion will be closed
Mr. Secretary, the registration opens, voting YES, the title is approved and the question, being the wish of this plenary that the bill becomes Law of the Republic, voting NO, would deny the title and the question.
Secretary General, Jorge Humberto Mantilla Serrano:
The registration is opened to vote on the title and the question on House Bill 329 of 2013 House; 145 of 2012 Senate.
Honorable representatives, you can vote.
Address of the Presidency, Fabio Raul Amin Saleme:
[...]
Secretary General, Jorge Humberto Mantilla Serrano:
Jaime Buennow votes Yes.
Address of the Presidency, Fabio Raul Amin Saleme:
Gentlemen representatives, announced that the registration will be closed; we still have a couple of votes in amarrillo without defining the sense of their vote.
Secretary, close the register and announce the outcome of the vote.
Secretary General, Jorge Humberto Mantilla Serrano:
Cabin lords please close the register, voting is as follows:
By the YES 84 electronic votes and 1 manual for a total by the YES of 85 votes, by NO 1 electronic vote, no manual, for a total by NO of 1 vote.
Mr. President, the title and the question on the House Bill 329 of 2013 has been approved; 145 of 2012 Senate.
Publication Registration Record
[...]
Address of the Presidency, Fabio Raul Amin Saleme:
Thank you Mr. Secretary, approved the proposal of the paper, approved the articulated, approved the title and the question, then we continue with the next item of the order of the day "[68] (original and italics).
Thus, the Chamber observes the fulfilment of the requirement of the decision-making quorum and of the nominal and public vote, in accordance with what has happened in the debates that are the subject of the under-healing, complying with the provisions of the articles 1h33 and 146 of the Political Constitution.
2.6.4. Publication of the final text. The final text approved in the fourth floor debate in the House of Representatives was published in the Congress Gazette No. 441 of 2015[69].
2.7. Conciliation procedure of the Bill 145 of 2012 Senate and 329 of 2013 Chamber
Among the texts approved in the Senate and the Chamber were some terminological discrepancies that made the conciliation procedure necessary[70].
The reconciliation report presented by the Senate and House speakers[71] in front of the 2013 House Bill 329, 145 of 2012 Senate, warns that "legal technical adjustments are made that do not affect the The bill's "articulate and spirit fund" and proposes to accept as final text the one that was approved by the House of Representatives.
2.7.1. Publication of the reconciliation report. The reconciliation report was published in the Congress Gazette No. 295 of seventeen (17) of June two thousand fourteen (2014), giving compliance to what was established in article 161 This is a matter of course, but it is not a matter of course.
2.7.2. Advertisements. The announcement for the vote of the conciliation in the Senate of the Republic was made the seventeen (17) of June two thousand fourteen (2014) to be discussed and voted "in the plenary session following the one of Tuesday, June 17 of 2014", which was called for the day"Wednesday 18 June 2014 at 9:00 a.m"[72]. Compliance with this requirement in the House of Representatives was also carried out during the session of seventeen (17) in June, indicating that "following projects are announced for the Plenary Session on June 18, or for the next Plenary Session on which bills or legislative acts are discussed"[73].
2.7.3. Approval of the conciliation report in the Plenary of the Senate. In principle, as announced, this took place in the session of the eighteen (18) of June of two thousand fourteen (2014), according to the Act No. 58, of the date, published in the Gazette of Congress No. 351 of 2014.
2.7.3.1. Initially it appears that the reconciliation report was approved in the Senate Plenary by ordinary vote. At this point on the agenda, one of the speakers[74] used the floor to explain the meaning of the conciliation report and to request its approval from the plenary. The following was read to the reconciled text, after which it is stated in the Minutes that "l] the Presidency submits to the plenary the Report of Conciliation to the Bill of Law No. 145 of 2012 Senate, 329 of 2012 (sic) Camera and, closed its discussion, it imparts its approval"[75]. During the time the report was considered, none of the attendees expressed any qualms or requested the roll-call vote on the same.
2.7.3.2. In relation to the requirement of decision-making quorum, the Secretary General of the Senate of the Republic, did not refer to this Corporation the information required on this aspect of the procedure[76]. When reviewing the minutes of the session, it is stated that in the call to list that is related to the beginning of the minutes, the attendance of ninety-four (94) senators is certified and they are reported to have stopped attending with excuse (4) MPs[77].
The information in the session's record allows the Court to have by the way: (i) that the session was attended by ninety-four (94) senators; (ii) that at a time before the vote of the reconciliation report object of analysis, the Secretariat certified the existence of a decision-making quorum; finally, (iii) that the permanence of the assistants in the enclosure was not unchanged, since it was necessary to wait between the conformation of the deliberative quorum and the decision-making and, then, at an advanced moment of the session, one of the parliamentarians warned about the decay of the quorum (although this was not verified)[78].
2.7.3.2. In view of the lack of the express certification that the Senate Secretariat would be required twice on this point, it could be assumed that the deliberative quorum with which the conciliation report was approved was made up of the total of the senators who attended the Plenary of the Senate that took place the eighteen (18) of June of two thousand fourteen (2014). To this conclusion was opposed the evidence that during the course of the session, the number of parliamentarians that remained in the room was variable. In this order of ideas, it was also not possible to establish what the number of votes with which the conciliation report was approved in the Senate was approved. Therefore, as indicated in previous lines, through the order 175 of the six (06) of May two thousand fifteen (2015)[79], the Plena Room returned Law 1722 of the three (03) of July of two thousand fourteen (2014), in order that the The procedure indicated, giving the House of Representatives " a term of thirty (30) days, counted from the notification, to correct the detected vice, after which the Congress of the Republic will have until the end of the legislature that culminates the twenty (20) of June Fifteen (2015) to take up the later stages of the legislative process. In the event that the conciliation stage is required to be exhausted, the vote on the respective reports shall be carried out in accordance with the number set out above. '
In response to the above requirement, the Secretary General of the Senate of the Republic[80], writes in writing of the sixteen (16) of June two thousand fifteen (2015), on the basis of the substantiation of the report of the commission accidental mediation, which:
" In Plenary Session of the H. Senate of the Republic on Wednesday ten (10) of June of the year two thousand fifteen (2015), it was considered and approved, the report of the Accidental Commission of Mediation by Senator TERESITA GARCIA ROMERO, In order to correct the procedural vice to the Bill of Law No. 145/12 Senate-329/13 House " BY MEANS OF WHICH IS APPROVED THE AGREEMENT OF PARTIAL SCOPE OF COMMERCIAL NATURE BETWEEN THE REPUBLIC OF COLOMBIA AND THE REPUBLIC OF BOLIVARIAN VENEZUELA ", [...]" (Law 1722 of July 3, 2014), based on the provisions of the Auto of the Constitutional Court No. 175 May 6, 2015, number 2, article 2 , and 220 of Law 5th of 1992 and article 5 of Legislative Act No. 01 of 2009. Published in the Gazette of Congress No. 383/15.
The result of the votes submitted for approval of this (sic) Bill are those recorded in Act No. 66 dated June 10, 2015, having regard to the provisions of article 5or of the Legislative act 01 of 2009, which states: "(...) The vote of its members shall be nominal and public, except in cases determined by the Law (...)", as developed by Law 1431 of 2011.
This substantiation is based on the registration made by the General Secretariat of this Corporation, in this (sic) plenary session itself and with the required constitutional quorum. The constancy of consideration and approval of this Bill, are indicated in Minutes 66 of June 10, 2015, prior to the announcement in plenary session on June 9, 2015, Act No. 65" (capital letters) originals)[81].
2.7.3.4. By order of twenty-three (23) September of two thousand fifteen (2015), the Secretary General of the Senate of the Republic was required to send to the Constitutional Court of the Senate Plenary Session Senate No. 066 of the ten (10) of June of two thousand fifteen (2015), and the Senate Plenary Session Act No. 065 of the nine (09) of June of two thousand fifteen (2015), with indication of the gazettes in which they were published, for the purposes of making the verification corresponding to the deliberative and decision-making quorum in the processing of the reconciliation report in the Senate plenary[82].
In response to the previous requirement, the twenty-eight (28) September of two thousand fifteen (2015), the Secretary General of the Senate of the Republic[83] referred authentic copy of the Gazette of Congress No. 729 of 2015, content of the Minutes of the Senate Plenary Session No. 066 of the ten (10) of June of two thousand fifteen (2015), in which was approved the project[84]. While the Senate Plenary Session Act No. 065 of the nine (09) of June of two thousand fifteen (2015) was not annexed, in the search carried out on the Web it was possible to locate the Gazette of Congress No. 681 of 2015[85], in which it was published the same. At the point of the Order of Day II "Project Announcement" reads:
"the instructions of the Presidency and in accordance with Legislative Act 01 of 2003, the Secretariat announces the projects that will be discussed and approved in the next session.
Yes, Mr. President, announcements of bills and legislative acts to be considered and voted on in the Plenary Session following that of Tuesday, June 9, 2015.
Correction of subsable vices in congressional acts, referred by the honorable Constitutional Court
[...]
Bill 145 of 2012 Senate, 329 of 2013 Chamber, by means of which the "Agreement of Partial Outreach of Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela" is approved, signed in Caracas, the Bolivarian Republic of Venezuela, on 28 November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, ... ".
The following plenary session was held on ten (10) June of two thousand fifteen (2015). In the Minutes of Plenary Session Senate No. 065 of the date, in the order of the day, point IV, are indicated the bills or legislative acts with report of conciliation that will be voted, among them, the Bill of Law 145 of 2012 Senate, 329 of 2013 Chamber, published in the Congress Gazette No. 383 of 2015[86]. In the course of the session, it can be read that the reconciliation report was approved by roll call and public vote, as follows:
" The Presidency grants the use of the word to the honorable Senator Teresita García Romero.
The words of the honorable Senator Teresita Garcia Romero.
With the coming of the Presidency, the honorable word is used by Senator Teresita Garcia Romero, whoreading the report on the correction of vices to the Bill of Law No. 145 of 2012 Senate, 329 of 2013 Camara, by means of which is approved the "Agreement of Partial Outreach of Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela", signed in Caracas, Bolivarian Republic of Venezuela, 28 of November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, [...].
Thank you Mr. President, the report of the correction of vices is of Law 145 of 2012 Senate and 329 of 2013 of the House, by means of which the agreement of partial scope of the commercial nature between the Republic of Colombia and the The Bolivarian Republic of Venezuela, and it consists in the fact that the title is different from that of the House and we must also ratify the vote of the plenary of the Senate, therefore we agree Mr. President that this correction be approved.
The Presidency submits to the Plenary the report of the correction of vices presented by the honourable Senator Teresita García Romero to the Bill of Law No. 145 of 2012 Senate, 329 of 2013 Chamber and, closed its discussion opens the voting and indicates to the Secretariat to open the electronic register to proceed in a nominal manner.
The Presidency closes the vote, and tells the Secretariat to close the electronic register and report the outcome of the vote.
By Secretariat the following result is reported:
By YES: 57
TOTAL: 57 Votes
Nominal voting on the correction of vices to Bill No. 145 of 2012 Senate, 329 of 2013 Chamber [...].
[Below is the list of senators who voted for him].
The report of the correction of vices presented by the honourable Senator Teresita García Romero to the Bill of Law No. 145 of 2012 Senate, 329 of 2013, has been approved.
Approved June 10, 2015"[87] (original denials).
In that order of ideas, the Chamber observes that the requirement of the previous announcement in which it was communicated about the session in which the discussion and vote of the report of conciliation to the Bill 145 of 2012 Senate was communicated was fulfilled. 329 of 2013 Camara. In addition, the existence of the decision-making quorum was verified, and compliance with the requirement of the nominal and public vote, established respectively in articles 146 and 133 of the Political Constitution.
2.7.4. Approval of the conciliation report in the Plenary of the House of Representatives. In principle, as announced, this took place in the session of the eighteen (18) of June of two thousand fourteen (2014), as recorded in the Minutes No. 281 of the same date, published in the Gazette of the Congress No. 336 of 2014.
2.7.4.1. Initially it appears that the approval of the conciliation in the House of Representatives was carried out by means of a ordinary vote. At this point on the agenda, after the reading of the respective report, approval was given to it, with none of the members of the Corporation to object to it or to request its roll call[88].
2.7.4.2. As required by the quorum certification[89], the House Secretariat noted the following: (i) in the plenary session at which the conciliation report was approved One hundred and thirty-one (131) Honorable Representatives were made to the House; (ii) said report " was considered and approved through ordinary voting [...], with eighty-eight (88) votes being the last recorded nominal voting result, held prior to the vote of interest" [90].
From this certification, two conclusions are inferred: firstly, it is confirmed that the number of parliamentarians attending the session does not remain unchanged in the course of the session, with which the verification of the deliberative quorum cannot be maintained. to be replaced by the formal certification of the number of assistants to the relevant session. Secondly, that in the present case, because of the manner in which the vote was taken, the House Secretariat itself failed to establish precisely, and so to certify, what was the decision-making quorum and the number of the votes on which the conciliation report was approved.
Thus, given the impossibility of crediting the number of representatives present at the time of voting on the bill, the House Secretariat noted the number of votes cast in the last registered nominal vote[91]. However, it did not immediately go before the vote, the validity of which is examined in this case. After that, the ordinary vote of two other reconciliation reports was carried out[92], after which the approval of the reconciliation report to the bill corresponding to the approval bill in study[93]took place. After that, the session continued with the ordinary vote of two reconciliation reports and five bills[94]. However, when it was time to take the roll call for one of the initiatives, in the absence of unanimity, it could not be carried out because, open the register, the dissolution of the decision-making quorum was verified. then only 51 out of 165 representatives were[95].
2.7.4.3. In view of the lack of precise certification of the existing deliberative and decision-making quorum in the process of conciliation in the House of Representatives, and the lack of data in the minutes of the session, which would lead to a well-founded conclusion On this aspect of the procedure, through the order 175 of the six (06) of May two thousand fifteen (2015)[96], the Chamber Plena returned the Law 1722 of the three (03) of July two thousand fourteen (2014), in order that the vice of indicated procedure, granting it to the House of Representatives " a term of thirty (30) days, counted from the notification, to correct the detected vice, after which the Congress of the Republic will have until the end of the legislature that culminates the twenty (20) of June Fifteen (2015) to take up the later stages of the legislative process. In the event that the conciliation stage is required to be exhausted, the vote on the respective reports shall be carried out in accordance with the number set out above. '
In response to the above requirement, the Secretary General of the House of Representatives[97], writes in writing of the eleven (11) of June two thousand fifteen (2015), in order to correct the procedural vices in the substantiation of the reconciliation report:
"In Plenary Session of the day of June 10, 2015 of the House of Representatives, was considered and approved the report of the Accidental Commission of Mediation to the Bill No. 329 of 2013 House-145 of 2012 Senate" OF WHICH IS APPROVED THE 'AGREEMENT OF PARTIAL SCOPE OF COMMERCIAL NATURE BETWEEN THE REPUBLIC OF COLOMBIA AND THE REPUBLIC OF BOLIVARIAN OF VENEZUELA', [...] ". (Law 1722 of July 3, 2014).
The above giving compliance to Auto No. 175 of May 06, 2015, offered by the Honorable Constitutional Court, and the number 2, article 2 and 220 of Law 5 of 1992, (Congressional Regulation), and in accordance with article 5 of Legislative Act No. 1 of 2009, the procedure for the procedure in this Corporation was corrected to the draft Law in comment. The above as stated in the Plenary Session Act No. 071 of June 10, 2015, prior to its announcement in Plenary Session on June 09 of the currents, according to the Minutes of Plenary Session No. 070 " (original negrills and capital letters)[98].
2.7.4.4. By order of twenty-three (23) September of two thousand fifteen (2015), the Secretary General of the House of Representatives was required to send to the Constitutional Court of the Chamber of Session Plenary Session No. 071 of the ten (10) of June of two thousand Fifteen (2015), and the Chamber of the Plenary Session No. 070 of the first (01) of June of two thousand fifteen (2015), with indication of the gazettes in which they were published, to proceed to the verification of the deliberative quorum and the decision demanded for the processing of the reconciliation report in the Chamber's plenary[99].
The Secretary General of the House of Representatives reported that "the Acts of Plenary Sessions No. 70 and 71 corresponding to the 9 and 10 June 2015, respectively, are in the state of elaboration in the Section of Rapporteurship of the Corporation", specifying that once they are published in the Gazette of the Congress the General Secretariat will forward them to the Corporation for their knowledge[100].
2.7.4.5. In order to continue the process of exequability of Law 1722 of 2014, through the order of six (06) October of two thousand fifteen (2015)[101], the Secretary General of the House of Representatives was required to, for the purposes of to conclude with the control over the processing of the under-healing within the terms of the law, of priority to the elaboration of the Acts of Plenary Session No. 070 of the nine (09) of June of two thousand fifteen (2015) and No. 071 of the ten (10) of June Fifteen (2015), its respective publication in the Gazette of the Congress, and its immediate submission to this Corporation.
By trade of the fifteen (15) October of two thousand fifteen (2015), the General Secretariat of the Corporation made it clear that the order of date six (06) of October of two thousand fifteen (2015), was notified by means of the state number 151 of eight (08) of October of the same year. Also, that the term of execution was silent[102].
2.7.4.6. This is the case, and given that in the file they did not review the necessary evidence to verify whether the procedure provided for the approval of the conciliation report in the House of Representatives was complied with, through the order of 505 of twenty-one (21) of October of two thousand fifteen (2015)[103], the Plena Room refrained from deciding on the exequibility of Law 1722 of 2014, until the constitutional and legal budgets required to do so are fulfilled. Likewise, among other orders, it will award the Secretary General of the House of Representatives to collect all the documents required and to have them sent to the Corporation, within three (3) days of the publication of the minutes of the Congress, if they have not yet been published, or within a period of one (1) business day counted from the notice of the providence, otherwise.
The twenty-eight (28) October of two thousand fifteen (2015)[104], the Secretary General of the House of Representatives[105] referred to the Corporation an original copy of the Congress Gazette No. 840 of 2015, in which finds published the Minutes of Plenary No. 70 of the nine (09) of June of the year in progress, informing that it remainspending only the Minutes of Plenary No. 71 of June 10, 2015, since it is still in the state of elaboration in the Corporation's Rapporteurship Section"[106]. The Gazette referred to reads:
Address of the Presidency, Fabio Raul Amin Saleme:
Thank you Mr. Secretary. After the decision was taken before the intervention of the minister, the plenary session was closed, with the presence of 73 honourable representatives, Mr Secretary-General. I would also like to thank the rapporteur, Mr President, for his report, which I have just mentioned, and which I would like to make to the House. I would like to thank the rapporteur, Mr President, for his report. Mr Secretary.
Assistant Secretary General, Yolanda Duque Naranjo:
The following projects are announced for the plenary session on June 10, or for the next plenary session in which bills or legislative acts are debated.
Auto number 175 May 2, 2015, Constitutional Court, remedy procedural defects.
Report of Conciliation to Bill 329 of 2013 House, 145 of 2012 Senate, " by means of which the 'Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela' is approved, signed in Caracas, Bolivarian Republic of Venezuela, on 28 November 2011, and its six annexes with the respective Appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, [...] "[107] (original denials, underlined).
As can be observed, the requirement of the prior announcement in which the discussion and vote of the report of conciliation to the Draft Law 329 of 2013 House, 145 of 2012 Senate, is reported, is fulfilled. For the plenary session of the day ten of June or for the next plenary session", according to the requirement made by the Constitutional Court through the order 175 of 2015, for the purpose of correcting the procedural vices detected.
Later, the eighteen (18) November of two thousand fifteen (2015)[108], the Secretary General of the House of Representatives referred to the Constitutional Court an original copy of the Congress Gazette No. 927 of 2015, in which Plenary Act No. 71 of the ten (10) of June of the current year is published. It can be read in that document that the conciliation report was approved by roll call and public vote, as follows:
" Secretary General, Jorge Humberto Mantilla Serrano:
Procedure Vice Correction numeral second, article 2, or, Act 5th of 92.
Reconciliation Report in Compliance with the Auto 175 of May 6, 2015, offered by the honorable Constitutional Court.
Bill 329 of 2013 House, 145 of 2012 Senate, by means of which the agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela is approved, signed in Caracas, Bolivarian Republic of Venezuela, on November 28, 2011 and its six annexes with the respective appendices, signed in Cartagena, Republic of Colombia, on April 15, 2012, [...]
[...]
The reconciliation report to this project reads as follows:
[...]
Address of the Presidency, Fabio Raul Amin Saleme:
Thank you Mr. Secretary. It is up to the conciliation report to be considered, giving the right to the right of the honourable Constitutional Court to correct the procedural defects.
El Comercio] Mr. Secretary, we are going to submit to consideration, announced that the registration will be opened, voting if the conciliation report would be approved in compliance with the Constitutional Court's order, voting would not deny the report of reconciliation in the and in the task of correcting procedural defects.
Mr. Secretary we will order to open the register.
Secretary General, Jorge Humberto Mantilla Serrano:
The record is opened.
[...]
Assistant Secretary General, Yolanda Duque Naranjo:
Cabin lords please close the register.
Chief Rapporteur, Raul Enrique Avila Hernandez:
Mr President, the conciliation report has been adopted with the following result.
By the yes 85 electronic votes none manual.
By the No 6 electronic votes no manual.
[The following are the voting records and the group and individual result boxes].
Address of the Presidency, Fabio Raul Amin Saleme:
Thank you Mr. Secretary. Approved the report of conciliation procedure correction of procedure, from point three of the agenda we will continue with point four, that are the projects for second debate ... "[109] (original and italics).
Thus, compliance with the nominal and public voting requirement set out in Article 133 of the Political Constitution was verified, and the constitutionally required majority was found. (art. 146 C.P.).
2.8. Lapse between debates. The compliance with what is established in the article 160 is verified, as the first and second debate in each chamber has elapsed over eight (8) days. In the present case: (i) the first debate in the Second Commission of the Senate took place on the fifteenth (15th) May of two thousand thirteen of (2013), and the second debate in the Plenary of that corporation took place on the twelve (12) of June of two thousand thirteen of (2013); in turn, (ii) the first debate in the Second Commission of the House of Representatives was held on the thirty (30) October of two thousand thirteen of (2013), and the second debate in the Plenary was carried out Twenty-eight (28) May two thousand fourteen (2014).
Also, between the approval of the bill in the Plenary of the Senate, twelve (12) of June of two thousand thirteen of (2013), and the beginning of the debate in the Chamber the thirty (30) of October of two thousand thirteen of (2013), passed a time of more than fifteen (15) days.
2.9. Process in maximum two legislatures. Article 162 of the Constitution provides that no bill may be considered in more than two legislatures. Such a rule was fulfilled in the present case, since the bill of approval on examination was established in the Senate twenty-four (24) of October of two thousand twelve (2012), that is, during the first period of the legislature that started the twentieth (20) from July two thousand twelve (2012) and ended the twenty (20) of June of two thousand thirteen (2013). In the meantime, the approval of the conciliation report, with which the procedure was completed in Congress, took place on the eighteen (18) of June of two thousand fourteen (2014), that is, two (2) days before the expiration of the legislature that started the twentieth (20) July of two thousand thirteen (2013) and ended the twenty (20) of June two thousand fourteen (2014).
The Room specifies that the time limit referred to in Article 162 Superior according to which "n] ingun bill may be considered in more than two legislatures", It is only a predictor of the procedure given by the Congress, but not of the revision entrusted to the Constitutional Court. In this regard, in Case C-027 of 2011110], in the framework of the official review of Law 1254 of 2008, "By means of which the Basic Convention of Technical and Scientific Cooperation between the Government of the Republic of Republic of Guatemala and the Government of the Republic of Colombia ', made in the city of Lima, on 23 November 2001", the Corporation held:
" Thus, given that the procedure to be dealt with for the vice-healing of the identified vice is a consequence of the exercise of the control carried out by the Court (art. 241-10), it cannot be understood that in these circumstances the requirement that the procedure be taken up in maximum two legislatures (art. 162 C. P.), since this one preaches the action of the legislator-who in the present case effectively dealt with and voted on the bill in that period as is clear from the legislative file analyzed by the Court, but not the consequences that they are derived from the exercise of the control of constitutionality, which are governed by the superior and legal mandates that allow the consolidation of the procedural vices (paragraph of the article 241 C. P., article 202 of the 5th Act 1992 and article 45 of Decree 2067 of 1991) "[111].
2.10. Government sanction and timely referral to the Constitutional Court. Initially, the government sanction of Law 1722 of 2014 took place on three (03) July of two thousand fourteen (2014), and its submission to the Constitutional Court was carried out on the eight (08) July following[112].
However, as through the order 175 of the six (06) May of two thousand fifteen (2015)[113], referred to above, the Plena Chamber returned to the House of Representatives Law 1722 of 2014, in order to remedy the procedural vices detected in the bill's approval (i) in the fourth debate in the House Plenary, and (ii) of the respective conciliation report in the Senate and Chamber plenary, providing for the Third party of such order that ' Finalized the procedure in Congress, the President of the Republic will have the deadline set in the Constitution to sanction the bill, fulfilled which will send to the Constitutional Court the Law 1722 of 2014, to decide definitely on its exequability". It was necessary then to again dispense with the presidential sanction of the bill before referring it back to this Constitutional Court in accordance with the provisions of Articles 157, numeral 4, and 241, numeral 10, of the Political Constitution, a requirement that was not fulfilled.
According to article 157 of the Political Constitution, no bill will be law without the following requirements: (i) Haber was officially published by Congress, prior to giving it to the respective commission; (ii) having been approved in the first debate in the corresponding standing committee of each chamber. The Congress rules will determine the cases in which the first debate will be held in joint session of the standing committees of both Houses; (iii) having been approved in each Chamber in the second debate; and (iv) have obtained the Government sanction. Despite the norms, the Bill 145 of 2012 Senate, 329 of 2013 Chamber, "by means of which the" Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela ", signed in Caracas, Bolivarian Republic of Venezuela, on November 28, 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I" Tariff treatment preferential '. Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism"", which took up all its constitutional and legal procedures in the Congress of the Republic, has not obtained the sanction of the Government, that is, it has not complied with the last requirement of formation of the laws.
So things, and considering that the Bill 145 of 2012 Senate, 329 of 2013 House, has not been sanctioned by the National Government and, consequently, has not reached the status of Law of the Republic, the Constitutional Court will be able to decide on its exequability, since the function attributed to it by the numeral 10 of the article 241 constitutional refers to definitively deciding on the exequability of the international treaties and the laws that approve them.
Given that, according to the foundations of this providence, the Congress of the Republic has fulfilled the other requirements for the approval of the draft law, but its will has not achieved the stated purpose due to the lack of sanction The Chamber of the Government, the Chamber will dictate an inhibitory sentence until the bill is sanctioned and sent for the purposes of constitutional control. Consequently, it will return the bill to the Congress of the Republic, for its competence.
However, as the constitutional case law has pointed out for example in the case 232 of 2007, while the presidential sanction referred to refers to the same approving act subject to analysis, its verification will not contract the change in the identity of the law. Therefore, the Legal Secretariat of the Presidency of the Republic will retain the number of Law 1722 of July 3, 2014.
VI. DECISION
On the merits of the above, the Plena Chamber of the Constitutional Court, administering justice on behalf of the people and by mandate of the Constitution,
RESOLVES:
First. IRSE to rule on the exequibility of Bill 145 of 2012 Senate, 329 of 2013 Chamber, "By means of which the" Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela, signed in Caracas, Venezuela, on 28 November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I "preferential tariff treatment". Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism"" for the reasons set out in this judgment.
Second. RETURN to the General Secretariat of the Congress of the Republic the Bill 145 of 2012 Senate, 329 of 2013 Chamber, "By means of which the" Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela, signed in Caracas, Venezuela, on 28 November 2011, and its six annexes with their respective Appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, Annex I 'preferential tariff treatment'. Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI "Dispute Settlement Mechanism"", to be referred immediately for the sanction corresponding to the President of the Republic.
Third. REQUEST that once the previous procedure has been exhausted, the present draft converted into law must be sent to the Constitutional Court to complete its control.
Copy, notify, communicate and comply.
Auto 576 Page Pies
| 1 | Folio 245, main notebook. Henceforth, whenever a portfolio is mentioned, it is understood that it is part of the main book, unless otherwise expressly stated. |
| 2 | Subscribe by Augusto Fernando Rodríguez Rincon, in his capacity as judicial agent of the Special Administrative Unit of the National Customs and Tax Directorate-DIAN-. Folios 291-309. |
| 3 | Folio 294. |
| 4 | OALI-134" of the twenty (20) October of two thousand fourteen (2014), signed by Cecilia Alvarez-Correa Glen. Folios 310-348. |
| 5 | Folio 316. |
| 6 | Folio 324. |
| 7 | Folio 328. It supports its arguments in Case C-446 of 2009 (MP Mauricio González Cuervo). |
| 8 | Folio 337. |
| 9 | Opicio radicado el twenty one (21) of October of two thousand fourteen (2014), signed by Alejandra Valencia Gartner. Folios 350-366. |
| 10 | Folio 352 |
| 11 | Folio 354. |
| 12 | Folio 358. |
| 13 | Subscribe by Francisco Morales Falla, manager of the Ministry of Finance and Public Credit, delegated by Resolution 2736 of 2013. Folios 367-373. |
| 14 | Folio 370. |
| 15 | Subscribe by Jazmin Rocio Soacha Pedraza, Coordinator of the Judicial Management Group. Folios 374-379. |
| 16 | Subscribe by Julia Astrid of the Santogal Castle, Head of the Legal Advisory Office (E) and close to this Court the twenty-two (22) of October of two thousand fourteen (2014). Folios 381-385. |
| 17 | Folio 381. |
| 18 | Concept signed by the Attorney General of the Nation, Alejandro Ordonez Maldonado. Folios 392-408. |
| 19 | Folio 402. |
| 20 | |
| 21 | |
| 22 | signed by Maria Alejandra Encinales Jaramillo, Coordinator of the Internal Working Group of the Treaties, Directorate of International Legal Affairs of the Ministry of Foreign Affairs. Folio 133, a test notebook. |
| 23 | Approved by Law 32 of 1985. Article 7 of that instrument states: " ARTICLE 7. I. Full powers. 1. For the adoption or authentication of the text of a treaty, or to express the consent of the State to be bound by a treaty, a person shall be deemed to represent a State: (a) if he presents the appropriate full powers, or (b) if deduces from the practice followed by the States concerned, or other circumstances, that the intention of those States has been to consider that person representative of the State for such purposes and to dispense with the presentation of full powers. | | 2. By virtue of their duties, and without having to present full powers, they shall be deemed to represent their State: (a) Heads of State, Heads of Government and Ministers for External Relations, for the implementation of all acts concerning the conclusion of a Treaty;b) Heads of a diplomatic mission, for the adoption of the text of a Treaty between the European Union and the (c) the representatives accredited by the States to an international conference or an international organisation or one of its bodies for the adoption of the text of a declaration of the European Parliament. treated in such a conference, organization or organ. " |
| 24 | This is the case in the certification issued by the Ministry of Foreign Affairs. Folio 133 (reverse), notebook one of tests. |
| 25 | 160 of the Constitution was added by article 8 of Legislative Act 01 of July 3, 2003, as follows: " Article 8o. Article 160 of the Political Constitution will have an additional paragraph of the following tenor: " No bill will be put to a vote in session other than that which has previously been announced. The notice that a project will be put to the vote will be given by the Presidency of each Chamber or Commission in session other than that in which the vote will be held. " |
| 26 | See among many others the sentences C-644 of 2004 (M.P. Rodrigo Escobar Gil. S.V. Rodrigo Uprimny Yepes; C-549 of 2006 (M.P. Manuel José Cepeda Espinosa); C-172 of 2006 (M.P. Jaime Córdoba Trivino); C-241 of 2006 (M.P. Marco Gerardo Monroy Cabra) and cars 038 of 2004 and 089 of 2005 (M.P. Manuel José Cepeda Espinosa). |
| 27 | |
| 28 | |
| 29 | Regulated in article 130 of Law 5th of 1992 (as amended by article 2 of Law 1431 of 2011). This kind of vote discriminates against each congressman's sense of vote and the outcome of the vote. |
| 30 | This type of vote, as regulated in article 129 of Law 5th of 1992 (as amended by article 1or Law 1431 of 2011), is effected by giving the Congressmen, with the hand, a blow on the pupil, followed by which the Secretary report on the outcome of the vote, which shall be taken into account if the verification is not requested in the act. |
| 31 | In this respect, in the car 118 of 2013 (M.P. Jorge Ivan Palacio Palacio. A.V. Maria Victoria Calle Correa, A.V. Nilson Pinilla Pinilla, S.V. Mauricio González Cuervo, S.V. Jorge Ignacio Pretelt Chaljub), the Court held that there was a procedural defect in the process of the statutory bill of participation, which was approved in the plenary of the Senate by ordinary vote, without acting any element of which could reasonably be inferred nor the fulfillment of the absolute majority rule provided for in the article 153 of the Charter for these types of initiatives, or the existence of a unanimous will to approve it. |
| 32 | Folios 239 and 240 reverse. |
| 33 | |
| 34 | |
| 35 | Constancy of handing over documents to the senators of the Second Senate of the Senate of the Republic in April twenty-nine (29) of two thousand thirteen (2013). Folio 4 of the test notebook one. |
| 36 | Act No. 30 of the seven (07) May of two thousand thirteen (2013) Senate, published in the Gazette of Congress No. 737 of Tuesday seventeen (17) September two thousand thirteen (2013): " COMMISSION SECOND CONSTITUTIONAL PERMANENT ACT NO. 30, 2013 (May 7). [...] | | Mrs. Secretaría, Dr. Claudia Patricia Alzate, gives reading point to Announcement and vote on bills. | | On the instructions of the President of the Second Commission of the Senate of the Republic, announcement of discussion and vote of bills for the next session [...] | | 5. Bill 145 of 2012 Senate by means of which the " Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela, signed in Caracas, is approved, The Bolivarian Republic of Venezuela, on November 28, 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I "Preferential tariff treatment". Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI " Dispute settlement mechanism. | | Authors: Ministries of Foreign Affairs and Trade, Industry and Tourism. | | Ponentes: Honorable Senators Carlos Emiro Barriga Penaranda (Coordinating Coordinator) and Edgar Alfonso Gomez Roman. | | Publications: Text of the Bill: Congress Gazette number 734 of 2012. First Debate: Congress Gazette number 230, 2013. [...] | | The bills are read for the next session Madam President. | | Madam President, Senator Myriam Alicia Paredes Aguirre, reports: the session is closed and is called for next Tuesday, beginning at ten in the morning " (original denials and cursive). |
| 37 | Act No. 31 of the fourteen (14) May of two thousand thirteen (2013) Senate, published in the Gazette of Congress No. 737 of Tuesday seventeen (17) September two thousand thirteen (2013): " COMMISSION SECOND CONSTITUTIONAL PERMANENT ACT NUMBER 31 of 2013 (May 14). | | [...] | | " The Secretary, Dr. Diego Alejandro González González, gives reading to the announcement of bills: | | [...] | | 4. Bill 145 of 2012 Senate, by means of which the "Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela", signed in Caracas, Bolivarian Republic of Venezuela, on November 28, 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on April 15, 2012, as follows: | | Annex I "Preferential tariff treatment". | | Annex II 'Regime of origin'. | | Annex III "Technical regulations, conformity assessment and metrology". | | Annex IV "Health, animal and plant health measures". | | Annex V "Trade defence measures and special agricultural measure". | | Annex VI " Mechanism for the solution of ". | | Authors of Foreign Affairs and Trade, Industry and Tourism. | | Ponentes: Honorable Senators Carlos Emiro Barriga Penaranda (Coordinator Rapporteur) and Edgar Alfonso Gomez Roman. | | Publications: Text of the Bill: Congress Gazette number 734 2012. First Debate: Congress Gazette number 230, 2013. [...]. | | The bills are announced for the next session Mr. President. | | The President, Senator Carlos Emiro Barriga Penaranda, reports: | | Having announced bills, it is called for the day Wednesday, May 15 at 10:00 a.m., in this same precinct ... " (original blackls and cursive). |
| 38 | 2 of Law 3 of 1992, "For which rules on congressional committees are issued and other provisions are issued," the Second Permanent Constitutional Commission is Thirteen (13) members of the Senate and nineteen (19) members of the House of Representatives. |
| 39 | |
| 40 | |
| 41 | Act number 65 of the ordinary session of the day of Tuesday, June 11, 2013 [...] | By instructions of the Presidency and, in accordance with Legislative Act number 01 of 2003, the Secretariat announces the projects that will discuss and approve in the next session. | | Announcements for the following Plenary Session of the honorable Senate of the Republic of the Republic of the Republic of Korea, Wednesday, June 12, 2013. Projects to discuss and vote in the next plenary session [...] Draft law with speech for second debate: | | [...] | Bill 145 of 2012 Senate, by means of which the " Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela, signed in Caracas, Venezuela, on 28 November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I 'Preferential tariff treatment'. Annex II 'Regime of origin'. Annex III "Technical regulations, conformity assessment and metrology". Annex IV: Health, animal health and plant health measures. Annex V "Trade defence measures and special agricultural measure". Annex VI " Dispute Settlement Mechanism [...]. Being 2:00 p. M., the Presidency lifts the session and convenes for the day Wednesday, June 12, 2013, at 11:00 a.m. " (original blackls and cursive). |
| 42 | 123 numbered 4 of the Law 5th of 1992 ". In response to the request, by trade OPC-410/12 of the twenty-nine (29) of August of two thousand fourteen (2014), the official referred a copy of the Gacetas of the Congress No. 600 of 2013 (pp. 15 and 16, announced) and 662 of 2013 (pp. 7, 14, 30 and 31, project approval). |
| 43 | Act No. 66 of the Senate Plenary Session of the twelve (12) June of two thousand thirteen (2013), published in Gazette of Congress No. 662 of 2013, pp. 1-2 (sheet 28 of the test notebook two). |
| 44 | |
| 45 | by which Articles 116 and 221 of the Political Constitution of Colombia are developed and others are dictated provisions". The roll-call vote on the positive proposal with which the report was concluded yielded a result of 53 votes in favor and 6 against, for a total of 59 senators ' votes present in the chamber (p. 53 of the Gazette, page 54 reverse of the test book two). |
| 46 | Act No. 66 of the Senate Plenary Session of the twelve (12) June of two thousand thirteen (2013), published in Gazette of Congress No. 662 of 2013 (p. 31 of the Gazette, sheet 43 of the test book two). |
| 47 | |
| 48 | Act No. 18 of twenty-three (23) October of two thousand thirteen (2013), published in the Gazette of Congress No. 1013 of Friday six (06) December of two thousand thirteen (2013): " COMMISSION SECOND OF EXTERNAL RELATIONS, SECURITY AND NATIONAL DEFENCE ACT NUMBER 18 of 2013 | | (October 23). | | [...] Next item of the Order of the Day Madam Secretary, businesses substantiated by Presidency. | | The General Secretariat of the Second Commission, Dr. Pilar Rodriguez Arias, has used the floor: | | Projects to be discussed and voted on in the next session of the Commission where bills are discussed and voted on, the above to give compliance with Legislative Act 01 of 2003 in its article 8. | | [...] | | Bill number 329 of 2013 Chamber, 145 of 2012 by means of which the agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela, signed In Caracas, Bolivarian Republic of Venezuela, on 28 November 2011, and its six annexes with respective Appendices, signed in Cartagena, Republic of Colombia, on 15 April 2012, as follows: Annex I Preferential Tariff Treatment, Annex II System of Origin, Annex III Technical Regulations, Evaluation of Opportunity and Metrology, Annex IV, Sanitary Measures, Zoosatesinary and Phytosanitary Measures, Annex V, Trade Defense Measures and Agricultural Special Measure, Annex VI, Dispute Settlement | | First Debate in the House Gazette Congress number 768 of 2013. | | The announcements have been made as you ordered it Mr. President. | | Makes use of the word Mr. President, honorable Representative Telesforo Pedraza Ortega: | | Well it has already been clear to all of today's colleagues in eight (8) days at 9 and a half in the morning, with the presence of the Ministers who have presented these projects " (original black-cursive and cursive). Pag. 40 of the Gazette, folio 369 (reverse) of the test notebook one. |
| 49 | This was recorded in Act No. 19 of the thirty (30) October of two thousand thirteen of (2013) of the Second Senate Committee, published in the Gazette of Congress No. 116 of 2014: " [...] The General Secretariat of the Commission Second, Dr. Pilar Rodriguez Arias: | | V. Second Bill 329 of 2013 Chamber, 145 of 2012 Senate, "by means of which the agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela is approved [...]" | | Mr President-in-Office of the Council, Mr President-in-Office of the Council, Mr President-in-Office of the Council, President-in-Office of the Council. | | The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak: | | With great pleasure. Proposal with the end of the report for the first debate. Because of the above and based on the provisions of the Political Constitution and the law I allow myself to propose to the honorable representatives to give first debate to the Bill numbers 329 of 2013 House, 145 of 2012 Senate [...] | | ...] use of the word Mr. President honorable Representative Telesforo Pedraza Ortega: | | Well to you thank you very much, honorable Representative. The Secretary-General has informed me, but now I had said before, but we have to do it at the beginning when we start, there is an impediment that we are going to vote on quickly. Madam Secretary, please read the request for an impediment. | | The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has used the floor: | | Mr. President, what happens is that the honorable Representative Augusto Posada Sanchez, before he can do his attendance at the session I submit to you the following impediment: I manifest to you that in my capacity as Representative to the House by the department of Antioquia, I present to the Second Constitutional Committee of the House of Representatives, to participate in the session at which the Bill 329 of 2013 will be discussed Chamber and 145 of 2012 Senate, Trade Agreement between the Republic of Colombia and the Bolivarian Republic of Venezuela, the impediment I present to you is that I am a partner of the society for actions Simplified, moto people, as it consists in the book of register of interests and given that the bill grants a commercial preference to the automotive sector has declared me prevented. Intently Augusto Posada Sanchez. | | Makes use of the word Mr. President honorable Representative Telesforo Pedraza Ortega: | | On a roll call, please call a list. | | The General Secretariat of the Second Commission, Dr. Pilar Rodríguez Arias, has been used to speak: | | Yes, Mr. President, with great pleasure. The NO is denied by the IF the impediment is denied. [A call to list and vote is made] | | Ten votes (10) for the YES, two (2) for NO, consequently the impediment of the honorable Representative Augusto Posada Sanchez has been approved. " |
| 50 | Act No. 19 of the thirty (30) October of two thousand thirteen of (2013) of the Second Senate Committee, published in the Gazette of Congress No. 116 of 2014. |
| 51 | This is the case in the Minutes of Plenary 274 of the thirteen (13) of May of two thousand fourteen (2014), published in the Gazette of Congress No. 269 of 2014: " [...] Address of the Presidency, Dr. Hernan Penagos Giraldo: | | Announce projects. | | Subsecretaria General, Dr. Flor Marina Daza Ramírez: | | If Mr. President, the bills are announced for next Tuesday, May 20, or for the Plenary Session in which bills or legislative acts of agreement are discussed. to Legislative Act No. 1 of July 3, 2003, in its article 8or. | | [...] | | Bill number 329 of 2013 Chamber, 145 of 2012 Senate, by means of which the " Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela... " (original blackls and cursive). |
| 52 | by means of which the "Agreement between the Republic of Colombia and Japan for the Liberalization, Promotion and Investment Protection", signed in Tokyo, Japan on September 12, 2011is approved. " See Minutes of Plenary No. 275 of the twenty (20) of May two thousand fourteen (2014), published in the Gazette of Congress No. 277 of 2014. |
| 53 | This is the case in the Minutes of Plenary No. 275 of the twenty (20) of May of two thousand fourteen (2014), published in the Gazette of the Congress No. 277 of 2014: " [...] Direction of the Presidency, Dr. Hernan Penagos Giraldo: | | Mr. Secretary, Please announce projects for next Tuesday. | | Undersecretary, Dr. Flor Marina Daza Ramírez, reports: | | If Mr. President, the following projects are announced for May 27, 2014. | | [...] | | Bill of law number 329 of 2013 Chamber, 145 of 2012 Senate, by means of which the " Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela"..." (original blackls and cursive). |
| 54 | Address of the session by the Presidency, Dr. Hernan Penagos Giraldo: | | Secretary, please announce projects for the day of tomorrow. | | The General Secretariat reports, Dr. Jorge Humberto Mantilla Serrano: | | The following projects are announced for the next session. | | The General Secretariat reports, Dr. Flor Marina Daza Ramírez: | | Mr. President, the following projects are announced for the day of tomorrow, May 28, 2014 at 2:00 p. m. | | Bill number 329 of 2013 Chamber, 145 of 2012 Senate, by means of which the " Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela "..." (original denials and cursive). |
| 55 | Plenary Act No. 277 of the twenty-eight (28) of May two thousand fourteen, published in the Gazette of Congress No. 270 of the nine (9) of June two thousand fourteen (2014). |
| 56 | certification, duly supported, of the quorum and the total number of votes with which the project was approved". In addition, "if the number of votes cast coincided with the number of congressmen present in the respective corporation at the time of voting, as set out in article 123 number 4 of Law 5 of 1992" (folios 260 and 261). |
| 57 | |
| 58 | Directorate of the Presidency, Dr. Hernan Penagos Giraldo: | | Mr. Secretary, please read, certify that we have a quorum and if there is a quorum, please read the agenda. | | Deputy Secretary General, Dr. Flor Marina Daza Ramírez: | | Mr. President at this time, the secretariat informs you that there is a decision-making quorum" (original denials). |
| 59 | Next Project: Bill number 334 of 2013 House, 175 of 2012 Senate, "for which some provisions regarding the legal regime applicable to companies of public services domiciled and of information and communications technologies" [...] | | Address of the Presidency, Dr. German Alcides Blanco Alvarez: | | Are there any impediments, Mr. Secretary, about the project in mention? | | Secretary General, Dr. Jorge Humberto Mantilla Serrano: | | There is a record of Dr. Alejandro Carlos Chacón. | | Mr President, in the last sitting we were in a vote of impediment, it was lifted because at the end of the vote the decision-making quorum was broken. | | Address of the Presidency, Dr. German Alcides Blanco Alvarez: | | Mr. Secretary, I understand that a new impediment was established yesterday; please read to the impediments that have been submitted to consideration, add it yesterday and we will open the register for the respective vote ... " (original grills). After the reading of the impediments made by the representatives Efraín Torres, Luis Antonio Serrano and Alfredo Deluque, it is noted that they are withdrawn from the chamber while the Plenary decides on the same. At this point the session continues as follows: "Direction of the Presidency, Dr. German Alcides Blanco Alvarez: | | Yes, Mr. Secretary, verifying that the representatives who requested to be prevented are absent. In consideration the previously read impediments, announced that the discussion will be closed, the discussion is closed. Mr Secretary, please order the opening of the register for the vote. | | Secretary General, Dr. Jorge Humberto Mantilla Serrano: | | Cabin senors, open the register for voting on these three impediments. [...] | | The auxiliary precinct, please inform the honourable representatives who are in the corridors and in the offices attached to the elliptical that we are in a vote of impediments. | | Address of the Presidency, Dr. German Alcides Blanco Alvarez: | | Madam Secretary, please order the closure of the register and certify the existing vote. | | Secretary General, Dr. Jorge Humberto Mantilla Serrano: | | The registration is closed and the vote is as follows: | | Mr. President, it is reported by the Secretariat that the decision-making quorum has been broken down, Deliberative quorum" (original blackboards and out-of-text underscores). When reporting on the results of the vote it was verified that sixty-three (63) representatives were present, who cast seventeen (17) votes in favour and forty-six (46) against the impediments to their consideration. |
| 60 | M. P. Maria Victoria Calle Correa. S.V. Luis Guillermo Guerrero Pérez; S.V. Jorge Ivan Pretelt Chaljub; A.V. Gabriel Eduardo Mendoza Martelo; A.V. Jorge Ivan Palacio Palacio (folios 248 to 276 of notebook two). |
| 61 | Jorge Humberto Mantilla Serrano. |
| 62 | Folio 277 of the notebook two. |
| 63 | Folios 295 and 296 of notebook two. |
| 64 | Jorge Humberto Mantilla Serrano. |
| 65 | Folios 329 to 340 of notebook two. |
| 66 | Folio 336 (reverse) of notebook two. |
| 67 | Folios 341 to 374 of notebook two. |
| 68 | Folios 350 (reverse) to 354 of notebook two. |
| 69 | After the transcript of the text approved in plenary session to the Bill 329 of 2013 House, 145 of 2012 Senate, reads: " Bogota, D. C., June 3, 2015 | | In Plenary Session of the day of June 2, 2015 of the House of Representatives, was considered and approved without modifications in second debate the presentation, the articulated and the title presented by the speakers to the Bill number 329 of 2013 House, 145 of 2012 Senate, by means of which the " Agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela, signed in Caracas, Venezuela, on 28 November 2011, and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, on April 15, 2012, [...]. The above giving compliance to Auto number 175 of May 6, 2015, offered by the Honorable Constitutional Court, and the numeral 2, article 2or and 220 of the Law 5 of 1992, (Congress Regulation), and in accordance with article 5or Legislative Act number 01 of 2009, the procedure for the procedure in this Corporation was corrected law in commented. The above as stated in the Plenary Session number 067 of June 2, 2015, prior to its announcement in Plenary Session on the 1st of June of the currents, according to the Minutes of Plenary Session number 066 ". |
| 70 | Thus, in article 2 approved in the Senate, reference was made to the word "country", while in the version approved in the House of Representatives it appeared instead of the word "State". |
| this regard, it is important to note that the Secretary General of the House of Representatives, Jorge Humberto Mantilla Serrano referred two certifications to this Corporation about the process of the project under discussion. In the first one, the four (04) August of two thousand fourteen (2014) and identified with the number SG.CERTI are located in this Court. 233/2014, in the number 3o notes " [q] ue in the process of the mentioned bill did not arise discrepancies in the Chambers with respect to the same, therefore did not give place to stage of the Conciliation and does not apply the fulfillment of the requirement of publicity provided in the final paragraph of article 161 of the Political Constitution " (sheet 408 of the test book one). Subsequently, the four (04) of September of two thousand fourteen (2014), in response to the requirement made in the car of twenty-six (26) of August two thousand fourteen (2014), proposed by the masterful rapporteur (folios 260 and 261), lies in the Secretary General of this Corporation the certification SG.CERTI.365/2014, signed by the same Secretary General of the House of Representatives, where in item 2o is recorded: " [e] n plenary session of the H. House of Representatives of the 18th of May (sic) of 2014, which consists in the Act No. 281-Gazette of Congress No. 366 of 2014-to which they were made One hundred and thirty-one (131) Honorable Representatives to the House, was considered and approved through ordinary vote the reconciliation report, with eighty-eight (88) votes the last result of the registered nominal vote, prior to the vote of interest " (folio 122 of the test book two). In spite of the information provided in the initial certification, the information provided by the interveners and contained in the Congress ' Gacetas in the file, allowed to establish that a conciliation was actually carried out on the texts approved in the Senate and in the House of Representatives. | |
| 71 | |
| 72 | Act No. 57 of the Senate Plenary on Tuesday seventeen (17) of June two thousand fourteen (2014), published in the Gazette of Congress No. 333 of 2014: " Project Announcement | | On the instructions of the Presidency and, in accordance with Legislative Act 01 of 2003, the Secretariat announces the projects to be discussed and approved in the next session. | | Next item, announcements of bills or legislative acts to be considered, discussed and voted on in the plenary session following the one on Tuesday, June 17, 2014. | | [...] | | With reconciliation report: | | Bill 145 of 2012 Senate, 329 of 2013 Chamber, by means of which is approved " Partial Scope Agreement of Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela ", signed in Caracas, Bolivarian Republic of Venezuela [...] | | [...] | | Being 8:04 p. Mr President, the Presidency is meeting and calling for the next meeting on Wednesday 18 June 2014 at 9:00 a.m. m. " (original grills). |
| 73 | passage]]" [passage] [subhead] [passage] [subhead] [passage] [subhead] [passage] [subhead] [passage] [subhead] [passage] [subhead] [passage] [subhead] [passage] [subhead] The following are the words of the President of the House of Representatives of the House of Representatives of the House of Representatives of the President of the Council of Representatives of the European Union [subhead] Mr Secretary, please announce projects for the day of tomorrow. | | Deputy Secretary General, Dr. Flor Marina Daza Ramírez: | | If Mr. President, the following projects are announced for the Plenary Session of June 18 or for the next Plenary Session in which bills or acts are discussed legislation. | | Reconciliation Report. Bill No. 329 of 2013 House, 145 of 2012 Senate, by means of which the "agreement of partial scope of commercial nature between the republic of Colombia and the Bolivarian Republic of Venezuela" is approved, signed in caracas, Bolivarian Republic of Venezuela. | | [...] | | The Session is closed at 6:57 p. m., is scheduled for Wednesday, June 18, at 2:00 p.m. Thank you very much " (original grills). |
| 74 | |
| 75 | This is stated in the Minutes No. 58 of the Senate Plenary of the eighteen (18) of June of two thousand fourteen (2014), published in the Gazette of the Congress No. 351 of 2014: " The Presidency indicates to the Secretariat to continue with the next reconciliation of the Order of the Day. | | Bill of Law No. 145 of 2012 Senate, 329 of 2013 Chamber, by means of which is approved " Agreement of Partial Outreach of Commercial Nature between the Republic of Colombia and the Bolivarian Republic of Venezuela [...]. | | The Presidency grants the use of the word to the honorable Senator Carlos Emiro Barriga Penaranda. [...] | | With the coming of the Presidency, the honorable Senator Carlos Emiro Barriga Penaranda has used the word: Thank you, Mr. President, simply this report of conciliation is intended to correct an error that is The President-in-Office of the Council of the Republic of the Republic of the Republic of the Republic of the Republic of the Republic of the Republic of the Republic of the Republic of the Republic of the Republic of the Republic of the Republic of the Republic of the Republic of the Republic of the Republic of the Republic of the Republic of The House will vote in favour of this conciliation report, thank you very much. | | By Secretariat, read to the Mediation Report that the Commissions appointed by the Presidents of both Corporations agreed to, to reconcile the discrepancies that have arisen in the approval of Bill 145 of 2012 Senate, 329 of 2012 (sic) Camara [...] | | The Presidency submits to the plenary the Conciliation Report to Bill 145 of 2012 Senate, 329 of 2012 (sic) House and, closed its discussion, is imparting its approval " (grills original). |
| 76 | certification, duly supported, of the quorum and the total number of votes with which the bill was passed 145/2012 Senate and 329/2013 House, today Law 1722 of 2014"in the Plenary of the Senate,"and yes the total number of votes cast concurred with the number of congressmen present in the respective corporation at the time of voting, in accordance with the provisions of article 123 numeral 4 of the 5th of the 1992". In response to the request, by trade OPC-410/12 of the twenty-nine (29) of August of two thousand fourteen (2014), the official referred a copy of the Gacetas of the Congress No. 600 of 2013 (pp. 15 and 16, announced) and 662 of 2013 (pp. 7, 14, 30 and 31, project approval). I do not include any information about the way the conciliation report was approved in the Senate Plenary. |
| 77 | Act No. 58 of the Senate Plenary of eighteen (18) of June of two thousand fourteen (2014), published in the Gazette of Congress No. 351 of 2014. The Secretariat is reported to have registered a deliberative quorum. | | Being 10:38 p. m., the Presidency states: | | Open the session and proceed with the Secretary to read the Order of the Day, for the present meeting. | | By Secretariat is read to the Order of the Day for the present session ... " (original grills). |
| 78 | Ver auto 175 of May 6, 2015 (M.P. Maria Victoria Calle Correa. S.V. Luis Guillermo Guerrero Pérez; S.V. Jorge Ivan Pretelt Chaljub; A.V. Gabriel Eduardo Mendoza Martelo, and A.V. Jorge Ivan Palacio Palacio (folios 248 to 276 of notebook two). |
| 79 | M. P. Maria Victoria Calle Correa. S.V. Luis Guillermo Guerrero Pérez; S.V. Jorge Ivan Pretelt Chaljub; A.V. Gabriel Eduardo Mendoza Martelo; A.V. Jorge Ivan Palacio Palacio (folios 248 to 276 of notebook two). |
| 80 | Gregorio Eljach Pacheco. |
| 81 | Folio 278 of notebook two. It is annexed to the report of conciliation to Bill 145 of 2012 Senate, 329 of 2013 House, signed by Senator Teresita García Romero and Representative to the House Jaime Armando Yepes Martínez (folios 279 and 280 of notebook two). |
| 82 | Folios 295 and 296 of notebook two. |
| 83 | Gregorio Eljach Pacheco. |
| 84 | Folios 301 to 325 of notebook two. |
| 85 | |
| 86 | In the Gazette of Congress No. 383 of 2015, appears published the Report of Conciliation to the Bill 145 of 2012 Senate, 329 of 2013 House, by means of which the " Commercial Nature Outreach Agreement between the Republic of Colombia and the Bolivarian Republic of Venezuela, signed in Caracas, Venezuela's Bolivarian Republic, twenty-eight (28) November of two thousand eleven (2011), and its six annexes with their respective appendices, signed in Cartagena, Republic of Colombia, the fifteen (15) of April of two thousand twelve (2012). The Gazette has a date of five (05) June of two thousand fifteen (2015). |
| 87 | Folio 316 of notebook two. Following is the text of the report of conciliation to Bill 145 of 2012 Senate and 329 of 2013 House, concluding: " In order to fulfill the designation, after an analysis we have concluded that the text approved by The honourable House of Representatives collects the approval in the plenary of the Senate, at the same time they make some adjustments of legal technique that do not affect the substance of the articulated and spirit of the bill " (fold 316 reverse and 317 of the notebook two). |
| 88 | Address of the Presidency, Dr. Hernan Penagos Giraldo: In consideration of the Conciliation Report to the Bill number 329 of 2013 House, 145 of 2012 Senate, by means of which the agreement of partial scope of commercial nature between the Republic of Colombia and the Bolivarian Republic of Venezuela, [...], the discussion opens, announced that it will be closed, closed, approved honorable representatives. | | Secretary Dr. Jorge Humberto Mantilla Serrano, reports: | | It has been approved, Mr. President. | | Address of the Presidency, Dr. Hernan Penagos Giraldo: | |Let's continue Mr. Secretary " (original denials). |
| 89 | certification, duly supported, of the quorum and the total number of votes with which the project". In addition, "if the number of votes cast coincided with the number of congressmen present in the respective corporation at the time of voting, as set out in article 123 number 4 of the 5th Act of 1992". |
| 90 | General Secretariat of the House of Representatives. SG. CERTI.365/2014, issued on the four (4) September of two thousand fourteen (2014) and signed by Jorge Humberto Mantilla Serrano, Secretary General of the said Corporation (folio 122, test notebook two). |
| 91 | by means of which is declared cultural and artistic patrimony of the Nation to the Carnival of Riodirty Caldas. |
| 92 | It was dealt with the reports of conciliation to the Bill of Law number 207 of 2012 Chamber, 113 of 2013 Senate, by means of which the fund of the parafiscal promotion is created, rules for the collection and administration of a quota for the promotion of fishing and other provisions are dictated; and After this report to Bill 014 of 2012 House, 151 of 2013 Senate, by means of which measures are dictated to prevent high blood pressure and excessive consumption of salt, sodium in the Colombian population. |
| 93 | |
| 94 | The vote on two other projects, included on the agenda, was suspended. |
| 95 | for which the scholarships are created credit support and support to the student in institutions of higher education of public nature, is amended Law 21 of 1982 and Law 1607 of 2012 and other provisions are dictated. This was recorded in the minutes: " [...] Secretary, Dr. Jorge Humberto Mantilla Serrano, reports: | | The register is opened to vote on the proposal with which the paper ends that asks for the second debate to be given to this bill. | | Address of the Presidency, Dr. Hernan Penagos Giraldo: | | [...] Close the register, Mr. Secretary; announce the result of the vote. | | Undersecretary, Dr. Flor Marina Daza Ramírez, reports: | | The register is closed, Mr. President. The Secretariat informs you that the decision-making quorum has been broken down " (original denials). In the published voting record, it is stated that only 51 representatives voted for that moment. |
| 96 | M. P. Maria Victoria Calle Correa. S.V. Luis Guillermo Guerrero Pérez; S.V. Jorge Ivan Pretelt Chaljub; A.V. Gabriel Eduardo Mendoza Martelo; A.V. Jorge Ivan Palacio Palacio (folios 248 to 276 of notebook two). |
| 97 | Jorge Humberto Mantilla Serrano. |
| 98 | Folio 281 of notebook two. It is annexed to the report of conciliation to Bill 145 of 2012 Senate, 329 of 2013 House, signed by the Senator Teresita García Romero and the Representative to the House Jaime Armando Yepes Martínez (folios 282 and 283 of the notebook two). |
| 99 | Folios 295 and 296 of notebook two. |
| 100 | |
| 101 | Folios 476 to 477 of notebook two. |
| 102 | Folio 480 of the notebook two. Through the trade of eight (08) October of two thousand fifteen (2015), the General Secretariat of the Constitutional Court brought to the attention of the Secretary General of the House of Representatives, Dr. Jorge Humberto Mantilla Serrano, that was ordered by the Masterful Rapporteur on the order of six (06) September of two thousand fifteen (2015), folio 479 ibid. |
| 103 | Folios 529 to 532 (reverse) of notebook two. |
| 104 | |
| 105 | Jorge Humberto Mantilla Serrano. |
| 106 | Folio 486 of notebook two. |
| 107 | Folio 526 (reverse) of notebook two (pag. 80 of the Congress Gazette No. 840 of 2015). |
| 108 | |
| 109 | Folios 550 (reverse) to 551 (reverse) of notebook two (pages. 18-20 of the Congress Gazette No. 927 of 2015). |
| 110 | Jorge Ignacio Pretelt Chaljub. |
| 111 | |
| 112 | Folio 244. |
| 113 | M. P. Maria Victoria Calle Correa. S.V. Luis Guillermo Guerrero Pérez; S.V. Jorge Ivan Pretelt Chaljub; A.V. Gabriel Eduardo Mendoza Martelo; A.V. Jorge Ivan Palacio Palacio. |
