The Court Decision that struck down Ley Lleras 2.0
This week, the Constitutional Court published the judgment C-011/13 that struck down the Law 1520 of 2012, also known as Law Lleras 2.0., on the procedural grounds from a substantive law providing requirements of how a law needs to be passed in Congress (Act 3 of 1992).
Although the dissenting votes have not been published, the judgment is in force.
This ruling shows the issue in Court was to decide if a copyright bill that implements an international treaty (FTA Colombia -US) should be addressed by the Committees (Commissions) in Congress in charge of International laws and affairs, or if such law should be addressed by the Committees in Congress in charge of Intellectual Property laws. The other charges of the challenge brought upon Law Lleras 2.0. were not decided by the Court.
In accordance to Article 2 of Colombian Act 3 of 1992, Intellectual Property laws are assigned for first debate in the First Committees of the Senate and the House of Representatives. In Act 3 of 1992 we may find, among others, the following responsibilities that must be addressed by this Committees: the constitutional reforms, statutory laws, territorial organization, structure and organization of the central national administration, the strategies and peace policies, and intellectual property norms.
While the Second Committees of the Senate and the House of Representatives are assigned the first debate on all international affair bills; according to Act 3 of 1992 the Second Committees in Congress are in charge of debating bills related to international politics, national defence, public treaties, diplomatic and consular affairs, including foreign trade, economic integration and free trade.
With a short analysis, the Court found that the Second Committees of Congress are not entitled for first debate of any bills or constitutional modifications related to intellectual property, instead this job is assigned to the First Committees of Congress.
Despite the fact that the laws approving the FTA with the United States, Protocol of Amendment and the Side Letter, – including the commitments on intellectual property- were discussed in first debate by the Second Committees in 2007, by norm included in Act 3 of 1992, the First Committees are in charge of the first debate and “will not cease to be by the mere fact that the laws that ratified these international instruments had been processed in the first debate by the Second Committees of Congress (C -011/13)”.
It is important to consider that even though the Court did not address the fact that the law was passed in a matter of 15 days (normally takes 6 months to 2 years), the Court considered that such allocation of competences, under the matter to regulate, must obey important rules that seek to rationalise and facilitate legislative work. In the same sense, for this organ to run efficiently, its activities must be subject to the principles of “publicity (the debate must be public) and democratic participation (C -011/13)”.
The principles of publicity and exercise of democratic control in the legislative process established in Colombian Act 5 of 1992, grants the opportunity for participation of civil society during the debate of the bills in Congress. It also gives the possibility to submit comments on any bill or constitutional reform that is being addressed by any of the Permanent Constitutionals Committees, permits the publication of the views expressed by any person or entity in the Congress Gazette, and requires to introduce in the bill all proposals or proposed modifications that are important with in the debate. (Act 5 of 1992, arts. 230-232)
With this Constitutional Court Decision the obligation to implement the copyright commitments established in the Free Trade Agreement subscribed with United States are still pending.
Most certainly a new bill will be introduced in the months to come. This time we hope Congress follows the procedure according to the legal terms set forth in the Act 3 of 1992 and Act 5 of 1992, with a balanced debate and participation of civil society during the process.