In June 2012, the Colombian Senate approved a Draft Law on Transparency and Right to National Public Information in order to give effect to Articles 20 and 74 of the Constitution guaranteeing the rights of expression and access to information. Virtually unique in comparison with other access to information laws around the world, the Colombian draft law includes a provision which substantially narrows the scope of the law—excluding information related to defense and national security, public order, and international relations. The Constitution requires that the Constitutional Court review draft laws, prior to their enactment, where they affect fundamental rights, and permits concerned parties to submit interventions to the Court during the review process. The Open Society Justice Initiative, as well as other organizations, expressed concerns about this provision limiting the scope of the law, and also various other provisions. The Constitutional Court’s ruling is still pending.
Colombia’s legislature passed a Draft Law on Transparency and Right to National Public Information, Draft Law 156 of 2011 of the Senate, 228 of 2012 of the Lower House. The Open Society Justice Initiative submitted an intervention to the Constitutional Court of Colombia addressing the international and comparative law aspects central to the constitutional review of a Draft Law on Transparency and Right to National Public Information.
The Justice Initiative submission is part of a constitutionally mandated review of any draft law related to a fundamental right. Articles 152 and 153 of the Constitution require the Constitutional Court’s review prior to the enactment of a law related to a fundamental right, and permits interventions to defend or oppose legislative proposals; Decree 2067 of 1991 enacts the procedural rules for the suits and proceedings before the Constitutional Court.
The Justice Initiative submission argues that the draft law reflects many of the core requirements for the protection of the right to information established in the international human rights treaties to which Colombia is a party, but that specific deficiencies in the draft law threaten to undermine its effectiveness and compliance with Colombia’s obligations under these treaties. The submission highlights in particular international law concerns around the narrow scope of the law—the law excludes information related to defense and national security, public order, and international relations. The submission urges the Court to declare the scope-limiting provision of the law unenforceable and in violation of Colombia’s international treaty obligations.
The submission also notes that the lack of a provision ensuring the supremacy of the law in the case of a conflict with other statutes is inconsistent with best practices. It also urges the Court to ensure an interpretation of the public interest test and judicial oversight provisions to ensure their compliance with international human rights law. This means that the provision providing for a public interest test may not allow for the provision of false or misleading information; and the judicial oversight provision should guarantee access to adequate and effective oversight and review mechanisms.
The Open Society Justice Initiative, in collaboration with Roxanna Altholz, Associate Director of the International Human Rights Law Clinic of the University of California at Berkeley, submitted an amicus curiae to the Constitutional Court of Colombia in its review of the draft law.
Maximum disclosure, transparency, and good faith. The Draft ATI Law is in large part consistent with the international requirements for the protection of the public’s right to access information, if interpreted in line with the principles of maximum disclosure, transparency, and good faith. International standards can be utilized to interpret the provisions establishing the public interest test and judicial review or oversight in order that they comply with human rights law. Authoritative guidance from the Court should require such an interpretation.
Necessity and proportionality. The absolute exclusion of information related to defense and national security, public order, and international relations from the scope of the Draft ATI Law is inconsistent with Colombia’s international treaty obligations. Such a limitation on the right of access to information is neither necessary nor proportionate, violates the principle of maximum disclosure, allows for perpetual secrecy, and exempts the withholding of information in these categories from independent oversight.
Supremacy of ATI law. The Draft ATI Law does not include a provision which ensures the supremacy of the Law in the case of a conflict with other statutes. This is inconsistent with best practices internationally and risks that competing laws will undermine access to information.
June 19, 2012. The Colombian Senate approved the Draft Access to Information Law in order to give effect to Articles 20 and 74 of the Constitution guaranteeing the rights of expression and access to information. Prior to its enactment, the draft law must undergo a constitutional review process by the Constitutional Court.
November 1, 2012. The alliance More Information, More Rights (Más información, más derechos) submitted a citizen intervention to the Constitutional Court concerning the Draft ATI Law.
December 3, 2012. The Justice Initiative submitted an amicus curiae brief to the Constitutional Court of Colombia.