It is said that in Colombia there are more than five million laws in force. Neither Congress nor the Government, nor even the judges, have a centralized register of laws; nor do they have a mechanism that enables them to ascertain whether a provision is in force or has been repealed. Not even lawyers specializing in a single field of law know and can locate all of the provisions regulating their sector. And rather than facilitating things, the new system of legislative unification under sole decrees has actually created greater confusion, among other reasons because of the absurd way of numbering articles. All attempts to simplify procedures have also failed miserably.
If we stop a moment to reflect on the reason why laws exist, we see that this astonishing level of regulatory incontinence is an example of an error in the way Colombian society has set up its self-government. The idea is not to legislate everything, among other reasons because the abuse of the law leads to its deterioration and discredit. The law is a valuable resource that should be used only to foster desirable collective behaviors in matters deemed essential by society.
Nonetheless, the most serious problem is not really the proliferation of laws, but rather the fact that it has not occurred to us to take the last step in the process: implementation. The governments of Colombia, especially that of Santos, have committed an historical error, i.e., they believe that problems are solved with the sanction of the law, forgetting that the enactment of a law is but the first and easiest step in the process. The true challenge is to insert each new regulation into the soul of society and to enforce it. In Europe, the most sensitive regulatory matters are studied for years, and reforms enter into force only after the issue of various working papers and rigorous impact assessments. After a bill has become a law, it must be taken seriously: everyone must obey it. In our country, however, a mere 2% of all public entities obey the data protection law, and levels of informal labor are higher today than they were before the issue of the law on the formalization and generation of employment, to give only two examples.
Enforcement requires commitment, not only from the government in the executive sector, but also from the judges, who must procure to give stability to the rule of law by interpreting the law in a way that is consistent and serves to reduce legal uncertainty. The objective should be to construe and defend standard and stable statutory provisions which provide a simple solution for most events or disputes, and only certain especially atypical cases should have to be reviewed in depth, as now occurs with the VAR (Video Assistant Referee) in football. I make this comparison because, in my opinion, football continues to be a good example of a well-aimed effort to set up a clear legislative system, increasingly effective in its enforcement, which has been making progress in the reduction of unfair decisions. In the end, a good regulatory system, whether for sports or for life in society in general, should help to foster competition on conditions that are fair, subject to clear and predefined rules.
José Miguel de la Calle, partner at Administrative Law department of Garrigues in Bogota.