Luis Bernardo Mejía-Guinand
1.Introduction
Few days after the first COVID-19 patient was confirmed in Colombia, both the government party Centro Democrático, and the opposition parties, asked President Duque to decree a state of emergency to tackle with the sanitary situation and counter the virus propagation. Various politicians also requested the President to take economic measures to deal with the economic distress that the propagation of the virus would bring about across the country. In particular, the opposition leaders urged the national Government to deploy the State´s full capabilities to confront the public health hazard and assist most vulnerable populations.[1] Echoing these calls for action, on March 18th, President Duque declared a social and economic state of emergency through decree 417 of 2020. According to the Government, this decision was justifiable because of the confluence of situations threatening the country´s economic and social order. On one hand, was the arrival of COVID-19 to the country and the risk of its rapid spread; on the other hand, the volatility of international oil prices was already impacting heavily on the public finances. This combined with the shock on financial markets across the world as a reaction to the pandemic.[2]
This article seeks to present the response of the Colombian President to the outbreak of the virus, relying on his Constitutional faculties. The text is divided in six sections including this introduction. Section 2 describes the Constitutional powers the President is entitled to confront the pandemic. Section 3 presents the checks and balances that the Colombian Constitution includes to limit or balance out Presidential power. Section 4 portrays the measures taken by the President to deal with the health and economic challenges that COVID-19 brings. Section 5 summarizes the conflicts that have emerged between the President and other actors because of the pandemic. Last section concludes.
2.Constitutional powers of the President
According to Colombia´s political Constitution, the state of economic and social emergency is one out of three exception measures that President can rely on in extraordinary circumstances. The other two exceptions are the state of external war and state of internal commotion. Article 215 of the Constitution establishes that when situations emerge, that disturb or threaten to disturb in a grave and imminent manner the economic, social and ecologic order of the country, President can declare the state of economic and social emergency. In order to declare the state of emergency, the President must demonstrate sound reasons to do it and must have full cabinet approval with all Ministers signing the decree. The state of emergency is granted for a 30-day period with a maximum of two extensions, ultimately not surpassing more than 90 days in a given calendar year.
The state of emergency allows the President to issue decrees without the regular transit through Congress granting these decrees same level of law as regular bills. Similarly, during the state of emergency the President can repeal other norms, establish new taxes or modify existing ones. In other words, the Constitution permits the President to take all transitory measures he finds suitable to confront the crisis.
3.Constitutional controls to the President’s powers
However, the emergency powers enabling the President to legislate unilaterally is not an absolute power. The decrees issued by the President during the state of emergency are subject to various controls that seek to avoid the President from extra limiting himself by legislating on any given matter. First, all decrees must be signed by all Cabinet members. This implies not only that the decisions taken by the President must have a unanimous consensus among cabinet members, but also that each Minister takes responsibility for the decrees concerning his given sector. Second, the Constitution states that decrees issued during the state of emergency must exclusively circumscribe to measures to confront and contain the elements that generated the crisis. Third, the Constitution forbids government to undermine through the emergency decrees, workers´ social rights. Finally, during the state of emergency, the President may not interrupt the normal functioning of the judiciary and the legislative, both branches that will continue to oversee the executive.
This last point is essential given the responsibilities that the Constitution assigns to the Constitutional Court and the Congress, during and after the state of emergency. Once the state of emergency is decreed, the Constitutional Court must analyze all decrees issued by the President. It is the Court´s job to observe the Constitutional abidance of the measures taken by government, their relevance and their effects on citizens’ rights. Illustrating this point, only one day after decreeing the emergency state, a copy of the decree was sent by the President to the Court. Immediately the Court gave President Duque a three-day deadline to officially communicate to the Interamerican States Organization (OEA) and to the United Nations (UN) the declaration of the state of economic and social emergency. Additionally, that same three-day period was provided by the Court to the Ministry of Health and Social Protection to explain which contingency plan the government was taking to deal with COVID-19. The Court also requested the Ministry of finance to explain each economic measure adopted and its economic implications, including projections on fiscal deficit. To date, the Court has not objected any Presidential decree.
In turn, the legislative has responsibility to exercise political control during the emergency and to evaluate the consequences of the transitory measures once the emergency period is over. However, Congress has had limitations to allow members of the House of Representatives and the Senate to attend virtual hearings. Even though President Duque authorized through an emergency decree that Congress could legislate through virtual platforms, discussion on the legality of this alternative is still under scrutiny. According to Semana (2020) [3], “Congress´ members have split opinions on the matter and there are doubts on which is the adequate technological platform to be used”. If this situation continues unsolved, many bill projects, not related to the pandemic will not come forward, generating a negative impact on the country’s institutions. Finally, the controversy was overcome and the first virtual Congress hearing took place on April 14th.
Once the emergency is over, Congress must analyze and decide on the pertinence of the emergency decrees and has a year to repeal, modify and/or expand them as permanent laws. Given that the government coalition has a minority representation in Congress and thus has faced large difficulties over the past two years in getting Congress to approve its initiatives, it is unlikely that the decree measures will be ratified beyond the transitory period, particularly those measures related to alleviating private sector economic needs. However, the decisions to extend in time or definitively repeal the emergency decrees will most likely be permeated by party interests, strong economic stakeholders and business lobbying in Congress.
4.The measures taken by the President
Thus far President Duque has issued more than 170 presidential decrees concerning public health, civil order and economic matters. According to the office of the President, besides country´s lockdown and closure of borders, the following are the most important measures:[4]
Financial resources for the health system: The Government seeks to guarantee the necessary resources for the health system. Emergency resources are targeted to the procurement of medical equipment, the improvement of the COVID-19 diagnosis capacity and the strengthening of Intensive Care Units.
Protecting the most vulnerable: close to $75 million dollars were assigned to vulnerable groups targeting people previously registered in various central government direct transfer programs. These resources are expected to reach 2,6 million households of the familias en acción program; more than 204.000 youth (of the jovenes en acción program); and 1,5 million elderly people (of the Colombia Mayor program). Additionally the government is assigning resources to a recently created program, Ingreso Solidario, that will allocate cash transfers to low income people who do not belong to the existing safety social networks but that have lost their income sources (i.e street vendors) because of the quarantines.
Reconnection of water utilities: emergency measures mandated the re-connection of water utilities to over one million households that were lacking the service because of prior nonpayment. Also, tariffs for water utilities will remain frozen while the state or emergency lasts.
Reimbursement of VAT: another emergency decree mandated that the value added tax will be reimbursed to the most vulnerable population.
VAT reduction: imports of medical equipment will benefit from a lower value added tax.
Financial relief: targeted to individuals, small and medium businesses in risk of default on their loans.
Protecting employment: government is providing financial guarantees to facilitate the micro, small and medium size enterprises access to credit with banks. The goal here is to ease financial strain of enterprises throughout the lockdown periods, so that they can continue with payroll payments and protect jobs.
In order to finance the state of emergency, the executive created the Emergency Mitigation Fund. This Fund will loan resources from other two existing Central Government Funds: first, the Fondo de Ahorro y Estabilización Petrolera a fund that had been nurtured with resources from prior oil economic booms; second, the Fondo Nacional de Pensiones de las Entidades Territoriales is a Fund were provisions for pension payments of public local entities are done. Together, both these funds will contribute to the state of emergency an equivalent of 1,4% of the country’s GDP.
5.Clashes between the President and local authorities
Some of the measures taken by the President in the context of the state of emergency have generated clashes amongst local level authorities, more so than among the judiciary or legislative branches. The first conflict that emerged between the President and several local authorities, mainly majors of various cities, was around two matters: the decision on mandatory lockdowns and how to control public order. Few days before the President decreed a national lockdown, majors at different cities had already taken their own measures like curfews, quarantines, closure of state terrestrial borders and limits to ground transportation. This triggered a response by President Duque who issued another decree to stress out that only the Presidency, in search of a unified command of orders, was entitled to take this sort of measures. Local mandatories did not take kindly the President´s posture and insinuated that it had just been a tantrum thrown out by the President who was seeing menaced his leadership capacity throughout the emergency. Instead, other politicians stated that the President was taking the right course of action by impeding that crucial emergency measures got federalized without a national level guidance.
In addition, local authorities have accused the President of being more concerned with the financial strength of enterprises and banks than with the health conditions of the general population. These divergent positions have implied collaborative and jet tense intergovernmental relationships. This has been most notorious between Bogotá city major, Claudia Lopez, and President Duque. Miss López expressed that it was inadmissible that the national Government was taking advantage of the economic emergency to withdraw funds from sources that are supposedly earmarked for local governments (like the Pension funds explained earlier) and then using this money to lend it to banks and enterprises.[5] The most recent clash between President Duque and Miss Lopez was the President´s decision to allow two sectors of the economy, construction and manufacturing to start operating as of April 27th, this in search of a gradual re-opening of the economy. According to Miss Lopez the city of Bogotá does not have the biosecurity protocols and measures in place to allow both sectors to resume activities, fearing that this measure will boost contagion and collapse of the health system. She openly challenged the Presidential decision saying she was not allowing, no matter what, the manufacturing to open yet. She even went further and said “ the Government by decree is forcing workers to go back to work and get infected”.
Another point of conflict between local authorities and the President is who is responsible, the local or the national level, for assisting Venezuelan immigrants, throughout the emergency. ACNUR estimates that there are 1,4 million people of Venezuela immigrants living in Colombia, most of them residing in the cities of Bogotá, Cúcuta, Barranquilla, Medellín and Bucaramanga. Majors of these cities are awaiting a greater commitment and financial aid from the national government to provide basic food, health, shelter services for this population in midst of COVID-19 crisis.
6.Final remarks
According to Gallup polls, President´s Duque approval rate by February 2020 was hardly 23%.[6] The main criticism to President Duque was that his government was blurry, lacking a clear purpose or direction. According to Semana,[7] only 2 out of 10 Colombians approved of President Duque, while 71% of the population disagreed with the way in which President Duque was handling government. These figures contrast sharply with a recent poll conducted by Cifras y Conceptos according to which 61,7% of the Colombian population approves of President’s Duque management of the pandemic crisis. Although this rate of approval is still lower than that of most majors in Colombia, it may provide an opportunity of a “fresh start” for President Duque to reconnect with the citizenry. President Duque is facing a big challenge. The way he will be remembered in history depends on his leadership to deal with the spread of COVID-19 and on the capacity of his government to avoid the economy from collapsing and recovering after the crisis. Of course, this will also depend on the ability of the President to avoid emergency funds from being diverted or misused by corruption networks, concerns that are already emerging, and to the quick and effective response in delivering aid to the poorest sectors in order to prevent social protest from intensifying.
Sources
[1] Retrieved from https://www.bluradio.com/nacion/oposicion-hizo-fuertes-criticas-duque-por-coronavirus-245144-ie430
[2] Retrieved from https://www.portafolio.co/economia/noticias-hoy-lo-que-debe-saber-sobre-el-estado-de-emergencia-economica-coronavirus-hoy-539197
[3] Retrieved from https://www.semana.com/nacion/articulo/congreso-colombiano-no-define-si-sesionara-de-manera-virtual/661208
[4] Retrieved from https://id.presidencia.gov.co/Paginas/prensa/2020/Gobierno-Nacional-medidas-economicas-sociales-Estado-Emergencia-200318.aspx
[5] Retrieved from https://www.semana.com/nacion/articulo/inaudito-que-el-gobierno-nacional-se-aproveche-de-emergencia-economica-para-autoprestarse-recursos-claudia-lopez/658642
[6] Retrieved from https://www.elespectador.com/noticias/politica/desaprobacion-del-presidente-ivan-duque-escala-al-71-gallup-poll-articulo-906733
[7] Retrieved from https://www.semana.com/nacion/articulo/encuesta-gallup-imagen-de-duque/653842
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