The Colombian Constitutional Court decided to annul the creation of the Ministry of Equality and Equity of Colombia in early May of this year, a decision that generated concern within the Government but allowed, specifically, two years to “reorder” the situation.

The Ministry of Equality was established through Law 2281 of 2023, as part of President Gustavo Petro’s Government Plan. Its purpose was to coordinate “all policies for the comprehensive empowerment of women, gender and sexual orientation diversities, generational, ethnic, and regional groups in Colombia.” Pursuant to Article 150 of the Constitution, only Congress has the power to create, abolish, or merge ministries, necessitating Congressional approval of the Executive’s proposal. Thus, after swift coordination between the Senate and the House, Law 2281 was enacted, and on January 4, 2023, it was signed in Istmina, Chocó, a vulnerable region reflecting the intended reach of the Ministry to support those most in need.

Despite criticism from certain sectors of the population, a new department was created under the leadership of Vice President Francia Márquez. The creation of this Ministry represented “hope” for Colombia’s most vulnerable sectors, signifying the Government’s commitment to communities often neglected by those in power. However, in the same month of its enactment, on January 25, 2023, a group of citizens filed a lawsuit challenging the constitutionality of Law 2281, essentially arguing issues of legislative procedure and the powers granted to the President.

In adjudicating the case, the Court analyzed the three unconstitutionality claims presented and found the first and third claims to be unfounded. Regarding the first claim, which challenged the Law because the report for the first debate was not approved in accordance with the quorum, voting method, and majorities stipulated in Articles 145 of the Constitution and 119 of Law 5 of 1992, the Court noted that there was reasonable doubt requiring the application of the in dubio pro legislatoris principle. The Court emphasized that both the Constitution and jurisprudence were clear on the quorum required for voting on laws of this type, and the video and photographic evidence presented to question its validity were not sufficiently reliable to rebut the compliance with the quorum.

As for the third claim, concerning the alleged violation of Article 12 of Law 2281 of 2023 against Article 150.10 of the Constitution, specifically the requirement for precision in granting extraordinary powers to the President, the Court held that the contested article was sufficiently clear regarding the specific functions to be addressed, as jurisprudence had already defined the terms contained in the text.

However, it was the second claim, which argued that the Congress of the Republic and the National Government failed to analyze the fiscal impact of the initiative as required by Article 7 of Law 819 of 2003, that ultimately led to the downfall of the Ministry. The Court determined that there had indeed been an incurable procedural defect due to the failure to conduct a fiscal impact analysis for the creation of the Ministry. The ruling established that the Government had presented arguments without the necessary minimum information, and had not sought input from the treasury office. On this basis, the Court found that there had been a serious violation of the law requiring the Ministry of Finance and Public Credit to present the fiscal cost of the Ministry’s creation and identify a substitute source of income intended to offset the expenditure.

Nevertheless, despite the ruling of unconstitutionality regarding Law 2281, the Court decided to defer the effects of the ruling until 2026, following the end of the 2025-2026 legislative term, to avoid “jeopardizing the rights of individuals under special protection to whom the public policy was directed.” With this decision, the Court granted the Government a grace period to determine the future of the Ministry of Equality and Equity, giving two options:

1. If the Government seeks to maintain the Ministry, it would have to restart the process from the beginning. This would involve submitting a new legislative proposal to Congress to seek approval for the creation of the Ministry of Equality and Equity, in compliance with the approval requirements stipulated by the Constitution and Law 819 of 2003.
2. If not, the Government could use the two-year period provided as sufficient time to reassign the functions granted to the Ministry and implement the necessary modifications within the national public administration to avoid infringing upon the rights of individuals under special constitutional protection who benefit from the public policy.

Regardless of the Government’s decision, the emphasis on this final point should prevail. Indeed, the Ministry’s mission was to eliminate economic, political, and social inequalities, which the national Government is obliged to minimize in order to promote the effective enjoyment of the right to equality, the principle of non-discrimination, and non-regressivity, as well as to defend the interests of those subject to special constitutional protection as identified by law. However, from the Ministry’s creation—tainted by mere procedural formalities—to the execution of its programs and budget—which have been questioned by opposition leaders—it seems that the Government has made efforts to create a department that is wholly ineffective and fosters bureaucratic inefficiency while neglecting the very reasons for its initial proposal. As of the time of writing, the Ministry of Equality has a budget exceeding that of other ministerial offices concerned with issues such as science or justice, yet it has not surpassed 1% of its budget execution.

Thus, in consideration of the legal framework, it is not difficult to create a ministry. The complexity lies in the competence of the officials within the National Government and Congress to carry out the task. In this case, it is evident that, although there are good intentions, there is very little capacity to advance the necessary procedures to fulfill a government program.