THINKING

The controversial Proposed Law of “Managing State-related Interests” in the midst of corruption scandals and the post-war period. The Government would appear to be seeing the twig in the other person’s eye.

In February, Ágora noted that the National Government, through the Ministry of Transparency, would be presenting a law to regulate lobbying, or cabildeo, in Colombia at the beginning of the new legislative term under the title ‘Proposed Law by which provisions will be established for the regulation of Management of State-related Interests’. This comes as part of the process of Colombia’s application to join the OECD and the commitments to transparency and the fight against corruption that the international body demands of all its member states.

As we have seen, this isn’t the first time that attempts have been made to regulate lobbying, now labelled ‘Management of State-related interests’, between the private sectors, as represented by lobbyists, and public officials at every level. The proposed law suggests that those who act as lobbyists must be planning to distort the decisions of a public official by asserting their own personal interests, leading us to ask the question: ‘Does the Government assume that the private sector always acts in bad faith?’ Why does it only refer to the relationship between the private and public sectors, leaving out, for example, the management of interests by public officials themselves?

In addition, the Proposed Law states the following: “The objective of this Law is to regulate activities related to the Management of State-related Interests in fulfilment of the principles of participation, political pluralism, the primacy of the general interest, transparency, social evaluation, the fight against corruption, access to public information and the Colombian State’s duty to prevent corruption.” (My underlining) According to the above text, the fact that the National Government is presenting this initiative implies that a fight against corruption is required in the realm of lobbying, or, in other words, that corruption is propagated by the sector.

It is thus incumbent upon us to assess why the National Government is focusing exclusively on individuals’ dealings with the State. Obviously, in the current climate where the media have assigned most of the blame for the Odebrecht scandal to ‘lobbyists’ and ‘advisors’ who facilitated the relationship between the company and high-ranking figures in the Government, limiting the lobbying activities of companies becomes a pressing issue. However, this still begs the question: Why doesn’t it address the role of ministerial advisors (and others who play similar roles) and also Legislative Work Units that in one way or another influence actors in the public sector for a specific purpose? It is worth remembering that in 2015 there was a public scandal during the debate over the reform of the ‘Balance of Powers’ in which an ‘advisor’ of the Attorney General within the Senate went from seat to seat persuading Congressmen to vote against a proposition that would prevent the Attorney General from litigating before the Office of the Attorney General for a period of five years. In the end this ‘management of interests’ bore fruit as the proposal was not approved. It thus becomes clear that it is not enough to presume the bad faith of the private sector in its relations with the public sector while ignoring the different activities that occur within the State itself.

Specifically, the proposed law involves a series of obligations that would apply to lobbyists such as filling out a form in the Public Agenda that includes a list of the meetings they have held with public officials; the creation of a registry of benefits or gifts by each state body; and the registration of the privileges received by any public official from a ‘manager of state-related interests’, among other measures.

In addition, it provides for the creation of a Public Registry of Managers of Interests in which all natural and legal persons from Colombia and overseas seeking to carry out lobbying activities must be registered – on pain of sanctions – stating the name of the client, the industry sectors represented and the state entities with which the manager of interests is seeking to interact, amid other information.

With these measures it is clear that the National Government is seeking, without a consensus, to impose new processes upon those who carry out lobbying activities, interfering in the contractual freedom of the Private Sector and its ability to choose a lobbyist or advisor, on the assumption that all the activities involved in lobbying have a nefarious purpose.

This is worrying because, rather than promoting transparency, it could lead to irregular situations in which registered information that may not be accurate could be used as evidence for or against a government official. In any case, it would not represent any meaningful change to business as usual, which currently murky and oblique.

Another aspect that must be taken into account is that the National Government is seeking approval of this proposed law under the Special Procedure for Peace, or ‘Fast Track’, stating that it is mandated by the peace accords. In the Government’s words, “it is a fundamental requirement for their effective implementation,” especially the terms of Article 2 of the Final Agreement (‘Political participation: democratic expansion to build the peace’). This point establishes in general terms the need for an expansion and consolidation of democracy that allows i) “An enrichment of debates and deliberation upon major national problems and thus the strengthening of pluralism and the representation of different visions and interests in society” and ii) “To create an environment that encourages civil society and the citizenry in general to exercise effective control of the public administration and the use of public resources.”

It should also be borne in mind that the Fast Track process applies to laws proposed by the Government that cannot be modified by congress without governmental approval. As things stand, this law would lead to the hyper-regulation of a private activity and the prevention not just of participation but also the right to discussion of the private sector, which is heavily affected.

To sum up, the definition of what we mean by lobbying under Colombian law will be replaced by the National Government’s view of the practice.

The OECD, as an international organization with an increasing influence over the economic relations between different countries across the world, has adopted principles in its own law that applicant member states must include in their legal framework. Colombia, having signalled its intention to become a member state, is obligated to follow the recommendations of the decision-making body that invited the country to begin the preparatory process. One of these recommendations, which cover a wide range of areas, is to adopt a legal instrument that enforces the principles of transparency during lobbying practices.

So, the future regulation of lobbying or, as the government calls it ‘Management of State-related Interests’ in Colombia will no longer follow the guidelines established implicitly by Article 144 of the Political Constitution but, to the contrary, will adopt OECD regulations as a consequence of an international obligation. This is worrying because the text of the Constitution and the principles of the OECD are contradictory and have different goals in mind. If the law is approved as it is, via the Fast Track process, for as long as the OECD Convention is not a part of the Colombian Block of Constitutionality it will be creating an unconstitutional law. As has been mentioned, the Constitutional Court has said that in order to implement the Fast Track procedure, the regulations in question must be directly and unequivocally related to the implementation of the final agreement on the termination of the conflict, which would not seem to apply to this initiative.