THINKING

The Impact of the ‘Fast Track’ on companies

The current political scene is dominated by the package of measures that have been proposed by the National Government for the implementation of the Legislative Act for Peace. Said Legislative Act (AL 01/16) established an express procedure in Congress to expedite the laws needed to implement the Peace Accord. In addition, extraordinary powers are granted to the President, who can decree the implementation of anything that Congress has not managed to pass via the express mechanism, or ‘fast track’, within the established six month period.

It is important to bear in mind that said legislative act established that during a 6 month period, which can be extended by another 6 months, the National Government will have discretionary power to present laws and legislative acts related to issues that are part of the peace agreement. Said projects are a priority during the legislative term and will thus prevail over any other issue on Congress’ agenda.

In addition, the Legislative Commission for Peace has been created, which will hear the first debate over said laws. This commission is made up of the first joint constitutional commissions and 12 additional congressmen designated by the directorial committees of each chamber in accordance with their proportion of seats and quotas for representation of gender and ethnicities.  The second debate will be heard by each chamber while both the first and second debates will only be followed by a single vote.

However, even though the Special Procedure for Peace, also known as ‘Fast Track’, has been questioned, especially by the public, for the speed at which laws and administrative acts are approved by Congress, greater concern lies with the provision of Legislative Act 01 of 2016 which grants extraordinary powers to the National Government for 90 days, which can be extended by another 90 days, during which the Executive will be able to issue legally enforceable decrees to facilitate the implementation of the peace accords, which will be later examined by the Constitutional Court.

The examination of laws by Congress will necessarily be less rigorous but it will at least involve debates that will scrutinize the text to be approved, while there will be no way to scrutinize, evaluate or modify the content of  legal decrees by the Executive branch, which will have exclusive power to pass this legislation.

The Legislative Act states: “The President of the Republic shall be granted the power to issue legally enforceable decrees exclusively to facilitate and ensure the implementation and development of the Final Agreement.” Here we see that this provision grants a power that is not specified very precisely, allowing for legislative decrees in areas not governed by the act or that have no direct relation with said subjects. Currently, the terms of the Special Procedure for Peace do not include a provision that would inform the Colombian public of the provisions and scope contained within said decrees, which relate to issues such as: comprehensive agrarian development, the finalization of the conflict, illegal drugs, victims, and budget issues, among others.

Impact of the Fast Track Process on the Private Sector

Presently, the National Government is planning to present a legislative packet of 73 regulations for the Fast Track process. Approximately 32 of these will be processed as a ‘Law’ by the Congress of the Republic and the others will be implemented by decree or executive resolution. These will include the Law of the Land and Agrarian Regulation, the Four Year and Multi-Year National Development Plan, the allocation of ownership of areas of forest reserves and the Law of Healthcare Infrastructure, among others. Also affected are essential issues related to the economic, political and industrial development of the country which will be addressed by legal decrees signed by the President of the Republic such as: the Modification to the SISBEN Subsidy Regime, tourism in post-conflict areas, provision of rural housing, labour reforms, criteria for affiliation to the healthcare system, the creation of the Colombia Fund for Peace, and Fonpet.

In the area of labour reform, the Ministry of Labour has prepared a proposed law (via Fast Track) that regulates the signing of collective agreements. It is also preparing two decrees. One is related to stimulating collective negotiations by branch of activity and the other seeks to strengthen the representation of unions in companies. These decisions by the National Government could limit the freedom of companies to negotiate with their workers without the involvement of unions, obliging them to interact with them through collective conventions.

This decision by the National Government will oblige all workers to become members of a union if they want to receive the benefits of a collective agreement, contravening the opinion of the Constitutional Court as this will violate the right of association, which gives workers the choice to sign up to a union or not.

This initiative, like many others proposed for implementation through the Fast Track process, is worrying companies because of the uncertainty surrounding the complexity of the modifications that the Executive is seeking to implement and also the aforementioned inability to scrutinize the proposed laws or decrees that will become part of the Law of the Republic.

Below is a list of the main initiatives that the National Government is seeking to implement through the Fast Track process that will affect the private sector:

Issue Governmental Portfolio Procedure
Allocation of small properties in the forest reserve Environment Fast Track Law
Affiliation with the healthcare system Health Ordinary Decree
Creation of the National Programme of Comprehensive Intervention to Combat the Consumption of Illegal Drugs Health Ordinary Decree
Creation of the Comprehensive National Programme of Replacement of Crops Destined for Illegal Use Presidency Ordinary Decree
Colombia Peace Fund Presidency Law Decree
Fonpet Treasury Law Decree
Agrarian Jurisdiction Justice Fast Track Law
Land Law Agriculture Fast Track Law
Improved remuneration for rural energy connection projects   Mining Fast Track Law
Modification of the organic law on PND Planning Fast Track Law
Payment for Environmental Services — PSA Environment Fast Track Law
National Environment System Environment Fast Track Law
National System of Agricultural Innovation Agriculture Fast Track Law

The National Government thus hopes to finish implementing the peace accords in 2017, in accordance with the terms set out in the Legislative Act for Peace, including the respective extensions. However, the country questions the Government’s hasty move to approve a package of laws, only some of which will be debated, and only then insufficiently, while others will only be made public when they are already compulsory for the Colombian people.

This raises questions such as: Is such a large package of laws necessary? What will the long term impact of these decisions be for the productivity and competitiveness of the productive sectors? Why aren’t unions and companies being properly informed so they can gain an adequate understanding of the projects that affect them?