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ABC to understand the decrees issued during the crisis

by | Dec 17, 2020 | Uncategorized | 0 comments

Since March 2020, the National Government has issued numerous Decrees and Resolutions to address the emergency
health caused by the COVID-19 pandemic and its socioeconomic consequences.

Through this Bulletin, we present you a practical guide to understand the nature and validity of the numerous
standards that have been issued. Make no mistake, not all decrees issued are the same.

What kind of Decrees can be issued by the National Government?

The decrees can be of legislative content (with the force of law) or of administrative content (ordinary). The
The former obey extraordinary legislative powers, while the latter develop the
ordinary regulatory head of the Executive. In turn, these types of decrees are subdivided into other
categories:

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LEGISLATIVE CONTENT DECREES
Decrees Law Legislative Decrees Statutory Decrees
At the request of the Government, Congress empowers the President for six (6) months to issue regulations
with the force of law.		 They are dictated on the occasion of states of exception . There are three types, one of them
It is the state of economic, social and ecological emergency .		 Issued by the Government based on extraordinary powers granted by the Constituent
Primary.
Requirements
In force after the extraordinary powers cease.

They cannot issue codes, statutory laws, organic laws, framework laws or decree taxes.

Constitutional control is subsequent by way of action.

 Indefinite validity 1 , except for tax matters 2 .

They must meet the connection requirement.

They must bear the signature of the President and all the Ministers.

They must be issued within the validity of the state of exception.

Automatic and exceptionally informal constitutional review.

 They should be statutory laws to regulate fundamental rights.

Decree 2591 of 1991 and Decree 2067 of 1991 on the protection action and the
proceedings before the Constitutional Court.
DECREE OF ADMINISTRATIVE CONTENT
Regulatory Decrees “Special” Regulatory Decrees Executive Decrees
Permanent power of the President to guarantee the development and execution of the
laws. They cannot modify rules of a higher hierarchy. Control of constitutionality assigned to the Council of State.		 The Government can issue these Decrees at any time and in the necessary number, provided
that the Decrees are framed within the criteria and objectives defined by framework laws.		 They allow the execution of administrative activities of the Executive.
The previous powers are not exclusive , so the National Government – during the
validity of the state of exception – has issued both decrees of administrative content and decrees
Legislatures in development of the State of Emergency.
Is the State of Emergency equivalent to the Health Emergency?
  • The State of Emergency and the Health Emergency are not equivalent, nor do they have the same effects.
  • The State of Emergency is declared by legislative decree and
    allows the issuance of additional legislative decrees for 30 days (maximum 90 days per year).
  • The Health Emergency is a measure taken through a act
    administrative     , byl Ministry of Health, within the powers granted in the
    Article 69 of Law 1753 of 2015 and establishes health and emergency measures, but does not give any power
    to issue or modify laws.

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So what is Mandatory Preventive Isolation?
  • Preventive Isolation is a public order measure that is based on the
    faculty
    constitutional law granted to the President to preserve public order and take health measures.
    This Decree serves as the basis for the measures adopted by Mayors and Governors.
  • Currently, Decree 1076 of 2020 that establishes the restriction on mobility and circulation is not a
    law
    legislative, but a regulatory decree.

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What is the validity of the Decrees for the previous figures?
  • It is important to verify the validity of the measures adopted by the Government to control
    pandemic, since some were subject to the termination of the State of Emergency or the period of
    Mandatory isolation, while others have a longer or even indefinite validity.

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  1. States of Emergency: Legislative Decree 417 of 2020 (in force between March 17 and
    he
    April 16, 2020) and Legislative Decree 637 of 2020 (in force between May 6 and June 5,
    2020) 4 .
  2. Health Emergency: Resolution 844 of 2020 in force until August 31, 2020.
  3. Mandatory Isolation: Regulatory Decree 1076 of 2020 in force until 1
    September 2020.
  4. Tax regulations: some of them in force until December 31, 2021.
  5. Others: some of the regulations issued by the Government have a different validity
    (case
    of Legislative Decree 817 of 2020, in force for 2 years) or they do not have a clear time limit on their
    validity (case of some articles of Legislative Decree 811 of 2020).

1 In States of Exception due to external war and internal commotion,
Legislative decrees are transitory, they suspend laws that are incompatible and govern only while
last
the state of exception.
2 In the case of taxes created or modified during the state of economic, social and
ecological shall govern for the term of the following fiscal period, unless Congress during the following year
them
grant permanent character.
3 The State of Emergency was decreed by Decree 417 of March 17, 2020 (current
until the
April 16, 2020), and then by Decree 637 of May 6, 2020 (in force until June 5,
2020).
4 Although a third decree has not been issued, in any case the State of Emergency will not be able to
to declare
for a period of more than 90 days in the year.