By judgment dated August 10th, 2023 (the "Judgment"), the State Council decided on the nullity of certain provisions of Presidential Directives 1 of March 26, 2010, referred to the "Guarantee of the Fundamental Right to Prior Consultation of National Ethnic Groups," and Directive 10 of November 7th, 2013, titled "Guide for Conducting Prior Consultation with Ethnic Communities" (the "Directives").

The annulment arises from a lawsuit filed by certain citizens and the Governing Councils of the Kankuamo, Kogui, Aruhaco, and Wiwa Peoples, where they argued that the Directives violated the principles of legality, due process, and statutory law reserve by defining essential aspects of the fundamental right to prior consultation without being enacted through statutory law. They also contended that the right to participation was violated by issuing the Directives without prior consultation. The Presidency of the Republic argued that the Directives were instructions for various authorities and did not affect the core of the right to prior consultation. Furthermore, according to the jurisprudence of the Constitutional Court, they did not require consultation as they did not directly impact any community.

In the Judgment, the State Council emphasized a crucial aspect for the annulment of the provisions within the Directives. Specifically, it highlighted that presidential directive could encompass both mere informative and confirmatory instructions (aimed at guiding public entities in internal procedures) and, concurrently, provisions that can be considered actual regulatory orders (constituting binding decisions aimed at regulating or implementing laws). Within these latter provisions, there might exist regulatory decisions that, instead of regulating a law, end up regulating a fundamental right. This scenario would be inappropriate for this type of normative instrument.

Based on this, the State Council addressed the charges against the Directives in two distinct ways.

First, it raised the exception of res judicata ex officio to determine the nullity of chapters 1, 3, 4 (second paragraph), and 5 (rules b, c, and d) of presidential directive 1 of 2010 based on a previous decision dated November 24th, 2022, that had declared the nullity of those provisions since the directive was issued exceeding the regulatory powers because said legal instrument pertained to the exercise of a fundamental right and, consequently, should have been processed through a statutory law. Additionally, the State Council found that the directive was irregularly issued due to its failure to comply with the prerequisite of prior consultation, as it directly affected specific communities.

Secondly, when addressing the charges against presidential directive 10 of 2013, the State Council differentiated the purpose of its provisions as informative and confirmatory instructions and regulatory orders. As a result, it determined that certain regulatory orders modified existing norms regarding prior consultation by establishing limits and restrictions on the exercise of the fundamental right to prior consultation and regulated the content of prerogatives derived from the right, without processing them through a statutory law. Moreover, the State Council found that prior to adopting the same presidential directive, it was necessary to carry out prior consultation with ethnic communities since, according to the criteria outlined in Judgement C-1051, 2012, these communities were directly affected. 

In this manner, the State Council declared the nullity of the following excerpts from Presidential Directive 10 of 2013:

•    In Stage 1: The second duty assigned to the Prior Consultation Directorate regarding the verification of the presence of ethnic communities in the project area.
•    In Stage 2: The second objective regarding whether the consultation requires prior, free, and informed consent, and activities 2, 3, 4, and 5 related to the absence of representatives from the ethnic communities invited to the meetings during the pre-consultation and consultation stages.
•    In Stage 3: The second step concerning the call for pre-consultation meeting(s) and the consequences of non-attendance, as stipulated in steps 4 and 5 of the stage.
•    In Stage 4: The first step related to the call for pre-consultation meeting(s) and the scenarios regulated in steps 2 and 3 for cases where an agreement is not reached.

However, the State Council clarified that the decision does not halt ongoing prior consultation processes or those that need to be carried out. These processes should continue based on the applicable regulations, including the current provisions of Decree 1320 of 1998, the Directives, and other presidential directives issued on the subject, such as Directive 8 of 2020 (which is likely to be subjected to the same nullity control in the future).

Finally, the State Council invited the Congress of the Republic to regulate prior consultation matters related to the Judgment, without specifically specifying the mandate's scope.