:quality(85)//cloudfront-us-east-1.images.arcpublishing.com/infobae/M22GD4UQXFH2ZO2I7K6J6NN2VQ.jpg "Common or statutory law: how entangled is the health reform approval process? 1")
There constitutional Court He overturned several laws or deleted articles due to procedural errors in the Congress of the Republic. A risk on which several members of Congress have already warned is perhaps the health reform put in place by the national government, and which must be clarified before starting its discussion, to avoid that once published, it don’t end up falling.
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The problem starts with defining the type of project that is the health reform: if it is a statutory law or one ordinary. The former is superior to the others and therefore has special procedural rules that make its process stricter. The second is the most common in Congress, it must pass four debates and be sanctioned by the President of the Republic, it has time for two legislatures (two years) before being archived.
Both the president Gustavo Petro like the minister Caroline Liege They argue that this is ordinary law. However, nearly 30 members of Congress have warned that it is law and should therefore be dealt with by this special procedure. If this is not done correctly, the court may declare the rule or part of it unenforceable when approved.
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The ace statutory laws are through which the Congress of the Republic It will regulate, in accordance with article 152 of the Constitution, the fundamental rights and duties of the people as well as the procedures and means of their protection. Through this, legislation relating to the administration of justice, electoral matters, participation or states of emergency must also be legislated.
These types of laws have a different procedure. First, it must be known to the first committees of Congress, responsible for statutory laws, second, it is more rigorous than other laws because it requires absolute majority and not simple for approval. In other words, it must have 50% plus one (1) vote and not just more votes than the negative option.
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must be approved in the same legislature, i.e. one year; In addition, statutory laws have previous constitutional review. In other words, when approved, before the presidential sanctionit will go before the Constitutional Court to determine the conformity of its articles with the Constitution.
The analysis is complicated because not all fundamental rights projects should be treated as statutory law. However, the Court reiterated that the articles which directly affect them, in the essential core of the rights, must be treated as such and not according to the ordinary procedure.
One of the cases is National Police Code of 2016 to which the Court declared several articles inapplicable because they dealt with rights such as freedom, assembly, inviolability of the home, among others and were not treated according to the procedure of the statutory laws, according to the judgment C-223 of 2017.
Another aspect is that statutory laws cannot be dealt with under extraordinary sessions. The most recent case was Electoral code which Congress approved in the additional term of December 2020 and fell under constitutional scrutiny. The Court indicated that it did not meet the procedural requirement in a single Parliament.
If so, in the case of health reform, the project should wait until March 16, the date of the start of the ordinary sessions, to continue the process. This situation puts the project in an impasse, because an in-depth discussion is planned and in the first legislative session of this year, there will be only 58 days of sessions.
Minister Corcho points out that the health reform she presented does not establish the fundamental right to health, but regulates it, since the organic law in this sense was approved in 2015. This reform was built on the basis of the Commission monitoring this law.
President Petro, for his part, pointed to an incoherent argument. He said that Law 100 was an ordinary law, unaware that this procedure was practiced long before health was considered a basic right in the country.
There is a precedent, the judgment C-791 of 2011, in which the Court carried out a constitutional review for Law 1438 of 2011 which modified the General System of Social Security in Health, which was prosecuted for the same conflict that presents the current reform: it was treated as ordinary law.
There constitutional Court declared the rule enforceable because not all laws regulating fundamental rights must have statutory procedure. But only those that affect the essential core of the right, in this case health.