New regulation of the right of petition

Article published on January 9 in the newspaper “Portafolio”.

Through communiqué 47, dated December 3 and 4, 2014, the Constitutional Court announced that, after the automatic review of the constitutionality of the draft Statutory Law on the right to petition, its content was in accordance with the Constitution. It is worth highlighting some effects that this new regulation may have on companies and entrepreneurs in Colombia.

In the first place, the Law establishes that through the figure of the right of petition the petitioner may request, among others: (I) the recognition of a right, (II) the resolution of a legal situation, (III) the provision of a service, and (IV) the intervention of an entity or an official. This means that, through the mechanism of the right of petition, procedures that would imply the exhaustion of a declarative judicial process can be avoided.

Secondly, the law regulates the processing and scope of the right of petition before private organizations and institutions, with or without legal personality, such as companies, corporations, foundations, associations, religious organizations, cooperatives, financial institutions and clubs.

The right to petition these entities shall be governed by the same principles and rules that govern the right to petition authorities, and the latter may only invoke the confidentiality of the information requested in the cases expressly established in the Constitution and the law.

The legislation establishes that the fines for disregarding the rules of the right of petition will be imposed by "the competent authorities", without stating which authorities these are, so it must be understood that these are the same that exercise surveillance and control over the different private organizations.

Thirdly, the rule creates a positive administrative silence with respect to the request for documents. In this sense, if this request is submitted and is not resolved within the following 10 days, it will be understood that it has been accepted by the requested entity and it may not refuse to deliver such documents, but must do so within the following three days.

In conclusion, the new regulation of the right of petition changes considerably the relationship that businessmen had with such figure, since it was not applicable to them except when it was a private individual exercising public functions or performing a situation of subordination or control over another.

With this new regulation, private entities will be obliged to process the different rights of petition, provided that they deal with a fundamental right of the petitioner.



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