The Pension Reform and its procedural defects

According to the information available, the paper argues that there was no adequate deliberation during the fourth debate in the House of Representatives. Instead of submitting the text to a detailed discussion, the document previously approved by the Senate was approved directly through a procedure known as "pupitrazo. 

This method implied the omission of more than 500 propositions presented in the Chamber, which, according to the report, violates the due legislative process and jeopardizes the bicameral model established in the Constitution. Congress must discuss and modify the bills in both chambers (Senate and House of Representatives). According to Judge Ibañez, the lack of adequate debate constitutes an irremediable defect that could lead to the total annulment of the reform.

What will happen now?

In recent pronouncements, it has been reported that the ruling that will determine the future of the pension reform will be suspended, given that the concept issued by the Attorney General at the time will not be taken into account. This is because, by the date of issuance of such a concept, the Constitutional Court had not yet resolved an impediment of one of the judges. In this context, the nullity of everything done up to that moment was declared.

Therefore, processing the claim of unconstitutionality of the pension reform will remain suspended until the deputy attorney general, or the person designated for this purpose, issues his opinion on the bill approved by Congress in 2024. This pronouncement should not be made by the current attorney general since he participated during the pension reform process and, therefore, is impeded.

Once the Attorney General's Office issues its opinion, the reporting magistrate must adjust the previously drafted and filed ruling report. Subsequently, the document has to be presented again before the Constitutional Court, where, in our opinion, the following questions must be resolved:

• Was the principle of democratic deliberation violated? The Constitution requires Congress to discuss and modify bills in both chambers.
• Was the bicameral model respected? The House of Representatives directly approved the Senate's text without debating it, which could affect each corporation's independence.
• Can the procedural defect be corrected, or does it render the whole reform unconstitutional? If the Court considers it irremediable, the reform could be annulled, or significant modifications could be required. This decision will have far-reaching implications for the pension system.
• Is the principle of equality violated? The reform establishes exclusive benefits for certain groups, potentially resulting in unequal treatment of other citizens. This issue of fairness is a key consideration for the Court.
• Does it disregard the prohibition of special regimes? The Constitution seeks a single pension system that avoids sectorial privileges. The Court's decision will determine if this principle is upheld.
• Can this aspect be corrected without annulling the whole law? If only this part is unconstitutional, the Court could request modifications instead of "overturning" the entire reform.

The Court's final decision is crucial, given that the reform is scheduled to go into effect on July 1, 2025. The ruling could result in declaring the reform unconstitutional, which would have significant implications for the pension system and the affected parties. Alternatively, the Court could return the bill to Congress to correct the identified procedural flaws, which would also have far-reaching consequences.

At that time, the Plenary Chamber, which is composed of all the magistrates of the Constitutional Court, will resume the discussion and evaluate the new report of Judge Ibanez:

•  If the majority of the magistrates approve it, the reform will be annulled, and the Government will have to present a new pension reform bill.

In relation to this point, it is important to consider that, in the event of the law in question's unenforceability, it could be applied retroactively (to the past) or non-retroactively (to the future, based on a principle of legal certainty). This raises several questions, especially as to what will happen with the transfer opportunity processes and with the transfers of pension regimes, already perfected to date, and how these could be affected by the Court's decision.

• Congress could make adjustments and corrections if the Constitutional Court decides that only some articles are unenforceable.

Notwithstanding the above, the procedures prior to the Constitutional Court's ruling may conclude after the law enters into force. In such a case, the Court will have to consider alternatives, such as the provisional suspension of the law, to avoid any possible effects of the law.

In this context, time plays a crucial role because if the reform is not resolved before it enters force, the country could face profound uncertainties in pension matters.

Therefore, the decision to be made in the coming days will have profound implications not only for legal certainty but also for the stability of the pension system in Colombia.

Given the relevance of this issue, we will remain very attentive to any pronouncement and will keep you updated on the progress and decisions that may arise in this process.