If curious as to why the manufacturing and construction sectors can resume activities in Bogotá and Mayor López can’t reverse the decision, but has managed to delay the process for two weeks, and same time frame when she intended to “gradually” open the county’s largest economy, one has to understand the implications of declaring the State of Emergency for public order, personal freedoms and role of democratically elected leaders.
The City Paper spoke to Juan Manuel Charry, a Constitutional lawyer, former co-Judge of the Constitutional Court and founding member of the Colombian Association of Constitutional Law and Political Science, regarding the limits on power of the President’s Office, Governors and Mayors during the State of Emergency.
Up to last week, 74 decrees have been issued by the Government, of which, 72 have been passed to the Constitutional Court for study, the entity in charge of overseeing their legality. The Constitutional Court has up to 45-days to hand down a ruling for every decree, unless it determines another date as to its validity.
The City Paper (TCP): Can the Mayor of Bogotá fail to obey a Presidential decree?
Juan Manuel Charry (JMC): The Constitution is clear when it gives the Presidency the faculty to preserve and restore public order in all the national territory. It does so in Article 198 (section 4) and establishes in Article 113 that Mayors and Governors are part of the executive branch. In turn, Article 296 of the Constitution states in regard to public order that Presidential orders must be immediately implemented and have preference over those issued by Governors and Mayors.
There is no conflict. With regards to public order, which is where the COVID-19 pandemic has been placed, the maximum authority is the President, and Mayors and Governors have to obey the instructions handed down by the President as established with Decree 418 of March 2020.
It is true that Mayors and Governors are autonomous in their territorial entities, which give them relatively ample margin in which to act, but with respect to this issue, they are subordinates of the President. Any dialogue they might have with the President is known in the Constitution as the “Principle of Coordination.” They can, of course, communicate to the President their points of view, difficulties they may face in their territories, but the President has the final word.
TCP: Would Mayor Claudia López incur in any illegality by not letting construction and manufacturing open gradually, arguing possible contagion by use of the public transportation?
JMC: Yes. I would begin by asking if in fact she cannot allow it, because she doesn’t have the competency to do so, and the issue of public health is a global one, yet managed at a national level. We would be making a mistake to fraction such management among 32 departments and their respective municipalities so that each administers the COVID-19 according to their own criterion.
This is a global crisis where the World Health Organization (WHO) is giving directives and governments are implementing these measures. I believe that from a perspective of convenience, what is best is that the governments of every country manage the crisis and there are no different actors opinionating on the matter. From a constitutional point of view, this crisis is one of public order, and responsibility of the national government.
TCP: Can Mayor López have legal consequences for her and for her government if she doesn’t comply with the government order?
JMC: There are different scenarios. I would start with the more general one, and that is that under these emergency circumstances, all decisions taken by Mayors, Governors and the national government that have legal status are under control of the Contentious Administrative Jurisdiction. This means that any decision taken by Mayors, Governors or the President go to the Contentious Administrative Jurisdiction.
When decisions are national, they go to the Council of State. When decisions are territorial, to the Administrative Court. In other words, if a Mayor takes a decision contrary to what we have spoken about, it would be the Administrative Court of Cundinamarca that would study the case.
The National Government issued Decree 418 on March 22 giving instructions to Mayors and Governors regarding the COVID-19 crisis, establishing the terms of what they can do and consult decisions they take. The decisions of the national government will always prevail.
The decree also warns that Mayors and Governors that do not comply with the instructions of the President could face disciplinarily investigation in which case it would be the General Attorney’s office that listens to the case of the respective public servant and could apply sanctions.
TCP: Decree 418 has enabled Mayor López to establish gender-based restrictions on mobility and other mayors in Colombia to enforce curfews, explain.
JMC: I would say so. Because they have a margin to evaluate the circumstances of their respective jurisdictions and can enact curfew, or limit meetings of 50 people or more, there is margin to maneuver by local authorities to take decisions. But, for me it’s clear, constitutionally speaking, that the responsibility falls on the national government to dictate measures to mayors and governors on how to act.
TCP: Mayor López is arguing that she wants to stop the spread of COVID-19 in public transport, does she have any legal recourse?
JMC: I do not know of any administrative acts issued by her. I just know about some declarations she has given to the public through the media.
Her arguments are reasonable. If one wants to avoid infection of coronavirus, it’s unreasonable for a great number of people to use public transportation where social distancing cannot be guaranteed.
Let’s say her arguments are reasonable, but she doesn’t have the decision power to that effect. If she would take a decision by issuing a decree, an administrative act, this would be controlled by the Administrative Court of Cundinamarca, and eventually, the Attorney’s Office could open a disciplinary case for taking decisions against the directives and instructions given by the Presidency.
TCP: What message is this situation giving Colombians and international community of the relative success of the Colombian management of the COVID-19 pandemic?
JMC: There is an apparent conflict in the sense that Mayors and Governors want to demonstrate to their electorate and citizens of their respective jurisdiction that they are being diligent. They want to appear that they are in charge, trying to endure a very serious global crisis. In haste, they could be giving the wrong message of “lack of communication” with the national government.