Banco de la República: why the Constitutional Court is right, and why the criminal-law risk remains an open question

This week the Constitutional Court, in Judgment C-221 of 2026 (docket RE-393, Justice Paola Andrea Meneses Mosquera), declared Articles 9, 10 and 12 of Legislative Decree 175 of 2026 unconstitutional. Through those provisions the Government sought to directly instruct the Board of Directors of the Banco de la República on how and when to regulate Agricultural Development Bonds (TDA). Public debate has focused on institutional autonomy, but I want to focus on the angle that is actually my field as a criminal lawyer: analyzed through criminal law, the constitutional overreach is clear, though any criminal consequence is a legitimate question, not a foregone conclusion.

What the Court struck down: the high court declared Articles 9, 10 and 12 of the decree unconstitutional. These provisions ordered the Board of the Banco de la República to adjust its regulation of Agricultural Development Bonds — including the applicable interest rate. The Court found these provisions introduced structural reforms to the agricultural-financing regime, bore no direct and immediate relation to the flooding emergency that triggered the decree, had nationwide scope, and undermined the technical autonomy of a Board the Constitution itself designed to be independent from the Government.

The criminal-law point: unconstitutionality alone is not enough: Article 413 of the Criminal Code punishes a public official who issues a decision, ruling, or opinion manifestly contrary to the law. Criminal case law has been consistent on a decisive point: not every annulled or unconstitutional decision amounts to prevaricato. The contradiction with the legal order must be blatant, not merely the result of a legally defensible interpretation that was ultimately rejected by the competent court. The distinction also matters for offenses tied to functional overreach: Article 416 governs abuse of authority through an arbitrary and unjust act, while Article 428 defines abuse of public function, when an official, abusing their position, carries out functions other than those legally assigned to them. These are not interchangeable categories, and which applies depends on the specific nature of the act and the competency exercised.

Why the ruling does raise a legitimate criminal-law question: the Court did not merely identify a minor defect. It found that Articles 9 and 10 introduced structural reforms to the agricultural-financing regime, lacked a direct and immediate relation to the emergency, projected effects across the entire national territory, and undermined the constitutional competencies and technical autonomy of the Board of the Banco de la República. That combination of circumstances raises a legitimate criminal-law question: if those who took part in drafting and issuing the decree knew the measures exceeded the material limits of the state of emergency and nonetheless chose to impose them, a possible offense against public administration could be discussed. But the unconstitutionality ruling does not resolve that question: a criminal charge would require identifying each official's specific involvement, establishing what information and legal analysis they had, determining whether a reasonable interpretation supported the measure, and proving the intent the offense requires. Liability does not follow merely from signing the decree, nor can it rest on the official having "should have known" the rule was unconstitutional.

The constitutional overreach, however, was clear: at the constitutional level, the conclusion is firm. Article 371 recognizes the Banco de la República's administrative, financial, and technical autonomy and entrusts it with central-bank functions. Article 372 assigns its Board of Directors the status of monetary, exchange, and credit authority. Article 215 allows the Government to issue decrees with the force of law during an emergency, but limits those measures to matters directly and specifically related to the crisis and aimed at addressing it. Articles 9 and 10 crossed that line: they used an emergency decree to generally alter the agricultural-credit regime and condition the exercise of powers the Constitution assigns to the Bank. That is why the Court had sufficient grounds to strike them down.

I therefore agree with Judgment C-221 of 2026 — not because every unconstitutionality implies a crime, but because the Banco de la República's independence is not an institutional formality; it is a guarantee designed to keep monetary, exchange, and credit decisions from being subordinated to the Government's immediate needs. The ruling firmly reaffirms that constitutional limit. Any criminal consequence, however, is a separate and still-open question: it requires an individualized, evidence-based examination of each official's knowledge and intent — something the unconstitutionality ruling alone does not supply.