Is it possible for foreigners to hold public office in Colombia?
“Foreigners shall enjoy in Colombia the same civil rights granted to Colombians.“So reads the beginning of Article 100 of the Political Constitution of Colombia, which then clarifies: “However, the law may, for reasons of public order, subordinate to special conditions or deny the exercise of certain civil rights to aliens.”
Among these rights is the right to work, protected by the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families – approved by Colombia through Law 146 of 1994 and ratified in 1995 – , but limited by Resolution 6045 of 2017 to holders of certain types of visas and/or to the performance of certain work or profession, on which the granting of the visa depended in the first place.
However, the exercise of a public function in the nation is a different story: Even if the foreigner holds a visa that enables him to work in an open manner, that is, it allows him to perform “any lawful activity” in the country, he might not be able to hold public office or even choose to do so by participating in a merit-based competition, due to what the Constitution itself establishes in Article 99: “The quality of citizen in exercise is a prior and indispensable condition to exercise the right of suffrage, to be elected and to hold public offices that have authority or jurisdiction attached to them.
What is a public office?
The public office is that held by a public servant who has been appointed for that purpose and a public servant is, according to Law 80 of 1993:
- The natural person who renders his or her services in a dependent manner to a state entity, with the exception of associations and foundations of mixed participation and public corporations.
- The legal representative, director, advisor, executive or, in general, whoever has the power to enter into contracts on behalf of associations and foundations of mixed participation (public and private).
- Who has the power to enter into contracts on behalf of public corporations.
However, the concepts of public servant and public official should not be confused, since the latter, as a species of the former, is reserved for those who hold a type of position that has authority or jurisdiction attached to it.
And what is the public office that has authority or jurisdiction attached to it?
Concept 307191 of 2021 has explained it as that which by its nature must be attended by a natural person, vested with the qualities required for its performance.
In conclusion and by virtue of the concept of 2006, ratified by concepts 128151 of 2019 and 307191 of 2021, the foreigner who has not acquired Colombian nationality may be a public servant, but not a public official, regardless of its nature or form of connection.
Can they participate in merit-based competitions?
The public merit-based competition has been understood by the Constitutional Court in Ruling T-256 of 1995 as that procedure regulated by the administration through which one or several persons are selected who, due to “their merits and qualities, acquire the right to be appointed to a public position”.
Reiterating the right to equality in Ruling T-380 of 1998, it is stated that, although the rules for participation in public merit-based competitions are imposed by the administration, the latter cannot disregard the constitutional principles that must govern its functions.
Thus, if the law does not provide for an express limitation and no reason is found for such position to be held by a Colombian national, the competition must be guided by the principle of equality and allow foreign persons to participate in public merit-based competitions and acquire the rights they confer, in full compliance with all other requirements imposed for participation.
Can they occupy career positions?
In the same sense, concept 1739 of 2006 provides that “foreigners residing in Colombia who have not acquired Colombian nationality may participate in the competitions for access to public positions classified as career and acquire the rights over it”.
What about foreigners naturalized by adoption?
This type of foreigners will have special rights over the others, since as Colombian nationals they may hold the same positions as a national by birth, except for those of: President or Vice President, Senator, Magistrate of the Supreme Court of Justice, of the Constitutional Court or of the Superior Council of the Judiciary, Attorney General of the Nation, member of the National Electoral Council, National Registrar of Civil Status, Comptroller General, Attorney General, Minister of Foreign Affairs or Defense, officer or non-commissioned officer of the Armed Forces, director of an intelligence and security agency or others as determined by law.
On the other hand, foreign nationals by adoption who have not renounced their other nationality and therefore have dual nationality, may not hold any of the above positions or, in addition, be members of Congress or Ministers or directors of administrative departments.