Uruguay has laws in force declared unconstitutional, others that establish agreements with countries that no longer exist and others that are there but are not respected, such as a law that prohibits butcher shops from opening on Sundays.
Conversely, the country lacks legislation in areas of increasing importance, such as teleworking, or it does, but its application is difficult due to lack of regulation, as in many of the laws on environmental issues.
There are hundreds of laws that are not followed because today they lack meaning, such as Law 9,438 that regulates bullfighting.
Such are some of the conclusions of the 2020 report of the Legislative Modernization Program (Promole), in which dozens of experts in legal matters participated.
The study, whose objective is to improve the performance of Parliament, indicates that for Uruguayans there are two key areas that need urgent fine-tuning: the rules regarding divorce and the tortuous administrative justice procedures that are conducted in the Contentious Court Administrative (TCA).
« The issues of administrative justice and divorce were the two that received the greatest amount of contributions from the public throughout the legislative modernization program, it should be noted that in both cases in general the population referred to the impact that these issues have on daily life » , supports the document that El Observador accessed exclusively.
The report’s conclusions include the opinion of a lawyer who left his contributions through the Promole website: « Access to contentious justice is slow and expensive, which discourages people from exercising their rights. »
Regarding the need to modify the divorce regime, multiple requests were received to « shorten the process », particularly when there are no children under 18 years of age, or when the couple has already agreed on the custody of their sons.
“You don’t need so many hearings, which only generate more pain for those who have to face the breakdown of a bond. Let the laws contemplate the hearts and feelings of the people at once. If to get married I needed specific procedures, to get divorced I don’t need to go five times to tell a judge that I am still determined to get divorced. It is quite painful to complete the bond with the person I chose for my life, ”said a woman who participated in the program. « The laws cannot remain oblivious to it. »
The experts who were part of the project also agreed on the need to adapt the legislation in these two fields.
The Promole was created by the Presidency of the House of Representatives. The program seeks to provide said body with « greater legislative efficiency, adapting the legislation to the current times, » said Deputy Martín Lema in his inauguration speech as president of the chamber.
The project counted with the collaboration of the law schools of all the country’s universities, the Supreme Court of Justice, the Uruguayan Bar Association, the Uruguayan Notaries Association, the Law Student Center and IMPO, among other institutions.
Lema stressed that the report is technical and not political, and that its purpose is to help the laws fulfill their mission.
Prisoners, strike and lockout
Since 1830, 19,891 laws have been enacted in Uruguay, which has become a phenomenon known as « legislative contamination. »
« There are thousands of laws that are obsolete, do not have a regulatory decree (or have been regulated, but partially or insufficiently), or are not applied or have fallen into disuse, » say the conclusions of the study.
Among the laws that cannot be fully applied by the regulation, is the 18,651 Law for the Comprehensive Protection of Persons with Disabilities.
Many environmental regulations have been in this zone of ambiguity and ineffectiveness, sometimes for more than a decade. Laws to regulate air quality laws and emissions to the atmosphere (article 17, law 17.283); noise pollution (law 17,852), on lead (17,774 and 17,775); on waste management (law 19,829) and on water and effluent quality (decree 253/979 and amendments).
There are also deficient or null regulations on the application of pesticides and fertilizers, protection of native flora and the fate of electronic waste.
In criminal matters, there is a lack or deficiency in the regulation on subjects as varied as those that refer to computer crimes; purchase, possession and carrying of weapons; comprehensive law on violence based on gender and against women. Nor was Law 19,430 that approved the Inter-American Convention on Protection of the Human Rights of Older Persons regulated.
In the same situation is article 3 of law 13,720 on prevention and resolution of collective conflicts. “It establishes the need to give notice no less than seven days in advance, to adopt strike or lockout measures. However, the legislation does not establish consequences for non-compliance with the notice ”.
Law 17,897, in its article 14, mandates that 5% of those hired in public works be released from the prison system, but since a specific sanction was not set, the law is breached.
Agreements with Yugoslavia
Another of the issues observed derives from the fact that, due to our legal system, the laws declared unconstitutional are still in force and are applied.
« According to article 258 of the Constitution, the ruling of the Supreme Court of Justice declaring the unconstitutionality of a norm refers exclusively to the specific case and only has effects in the procedure in which it has been pronounced, » explains the work.
The concrete effect of this constitutional mandate – it is added – implies that « the law, even if it has been declared unconstitutional, is still in force and that, therefore, it will continue to apply to anyone who has not obtained a judgment in their favor declaring said unconstitutionality » .
Parliament should study these laws and evaluate whether their repeal, modification or replacement is appropriate, the study by Promole indicates.
Those that should be repealed are hundreds of laws that today no longer have any purpose: they establish ex gratia pensions for people who have already died; laws that authorized the entry or exit of armed forces into the country in the past; they established tributes already celebrated or granted economic benefits for periods already elapsed.
There are 927 laws that name schools, routes, bridges, etc., but it is not known how many are respected. « Many (…) are not even fulfilled at present due to lack of posters, disuse, and even because the name has actually changed. »
And another 902 laws ratify international agreements that on occasions « have fallen into disuse, have been repealed by the approval of subsequent agreements, or even by the dissolution of the signing Agency or State Party »
Among them, for example, there is an agreement signed in 1980 for collaboration in science and culture between Uruguay and the now non-existent Yugoslavia and a 1983 commercial agreement with the now defunct Czechoslovakia.
Rapture of maidens
Regarding future legislative work, Promole obtained 836 suggestions for changes or innovations made by academics, legal professionals (lawyers, notaries and attorneys) and legal operators (judges, prosecutors, public defenders and public auditors).
Through the Parliament’s website, all those interested in the matter could participate.
The proposals were analyzed in meetings attended by academics and legal professionals. There it was chosen which of the ideas should be prioritized by Parliament.
The final document divides such proposals into several fields.
In the “professional practice”, the priority issues were the two already mentioned: modifying the divorce regime and the better functioning and access to administrative justice.
It was also among the main claims to review the regulations on domestic violence and « provide for the effective installation of Specialized Legal Courts in Gender-based, Domestic or Sexual Violence. »
In the Criminal Law chapter, the most highlighted point by the experts was the need to carry out a comprehensive review of the Criminal Code, followed by the establishment of new crimes for the protection of the environment.
Third, the participants in this chapter raised a tie between two issues: dictating norms that guarantee the rights and define the duties of the prisoners in accordance with Human Rights; and harmonize the rules on crimes against the sexual freedom of people.
Among the proposals received from the public, it was proposed to update the wording on computer crimes and classify crimes that repress “fake news”, the traffic of data or private information of people or companies and computer scams.
Among obsolete articles of the Penal Code, those ranging from 266 to 271 were mentioned, which speak of the crime of “kidnapping” and establishes that it applies to “honest” women or “maidens”.
The article that sanctions the « vilification of foreign emblems » was also considered obsolete. And part of article 277 that says that whoever makes « obscene speeches » commits public outrage to modesty.
In the field of international law, the issuance of a General Law of Private International Law and the regulation of food benefits at the international level were proposed as priorities.
Second, the issuance of norms that provide greater clarity regarding the application of the International Conventions on Human Rights ratified by Uruguay was recommended.
The incorporation of new technologies in the Judicial Power that allow access to people living abroad was also called for.
In the chapter on agrarian law, a general review of the Rural Code was indicated as a first need.
Secondly, the need to review the regimes for Water, Colonization and rural leases was considered.
In financial law, it was considered a priority to specify the scope of the principle of legality in tax matters. The specialists indicated the need to review the article of the Tax Code that establishes that the law may set the conditions and limits within which the Executive Power will specify the bases of calculation, aliquots, etc.
Among other outstanding issues, the need to create a charter of taxpayers’ rights was highlighted, as it already exists in other countries.
Also “the issuance of an interpretive law of Article 216 paragraph 2 of the Constitution was proposed, specifying that the Budget and Accountability Laws must be limited to the budgetary and accountability aspects that concern them, being alien to the same other issues that they exceed the theme ”.
Regarding family law, the work indicated that the most urgent thing should be to review the common law regime and « adapt it to the rules relating to marriage. »
The need to modify the current legal regime regarding filiation was placed as a second priority. It was requested « to modify the differences between legitimate and natural filiation » and to change the adoption regime.
Equally important, the need to adapt the disability standards to the international conventions ratified by Uruguay was highlighted. « In particular, it is necessary to update Article 438 of the Civil Code. »
Said norm establishes that « the acts and contracts of the defendant due to incapacity, subsequent to the registration of the respective interdiction, be it provisional or definitive, are null and void » And adds that « the previous ones may be annulled, when the cause of the interdiction existed publicly at the time those acts or contracts were made ”.
In the field of commercial law, the recommended priority was to reform Law 16.060 of Commercial Companies, in order to adapt the hiring of administrators, the form of convening of the assemblies and their place of conduct (enabling new technological means), review the regulations referring to the resignation of directors, expediting the procedure of loss, destruction or theft of company books, etc.
The second priority issue was to update the Law on Contests and Titles, Securities and Checks.
It was also proposed to review the copyright regime, « establishing exceptions for the cases of virtual academic libraries and platforms. »
In Public Law, the priority issue turned out to be the need to approve a General Law of Administrative Law that comprehensively regulates administrative procedures and resources, “with special emphasis on the normative regulation of the effects of the judgments issued by the Court of Administrative Litigation ”, as well as its execution.
In a second order of preference, it was established that « it is necessary to issue a rule that increases the control regime in relation to Non-State Public Persons and State stock companies, in particular by the Court of Accounts. »
It was also proposed to update the regulations on the rights of persons with disabilities and to dictate specific regulations for the protection of personal data in public health.
Another outstanding point was the request to review the disciplinary regime for public officials, that of passes in commission and regulate « workplace harassment in the public function. »
Right to be forgotten
In the field of civil law, the first thing should be the issuance of a new Code « that incorporates, modernizes and harmonizes the current provisions adapted to the current reality. » To this end, the creation of a commission in Parliament was suggested.
Second, it was considered the need to review the system of ineffective donations.
It was proposed to legislate on the « right of people to decide to euthanize and die with dignity », but it was not taken as one of the priority issues.
In terms of employment, the priority issues were working time and the collective bargaining system.
In relation to work time, it was proposed to regulate the weekly and daily work regime for the service sector; review the working hours regime, adapting it to the new reality; review the annual leave regime and that of overtime and intermediate rest.
Regarding collective bargaining, it was advised to review the current regime regarding Salary Councils and the right to strike and its scope.
The second prioritized topic was teleworking and distance work: the issuance of updated standards regarding work on computer platforms and applications was proposed.
Regarding computer law, the specialists established legislation to facilitate electronic contracting between individuals. The updated regulation of electronic commerce and digital means of payment was proposed.
Secondly, « the experts indicated the need to regulate the right to disconnection linked to teleworking. »
On the other hand, the issue of the incorporation of electronic instruments in the work of notaries was prioritized, through the “enactment of a law that allows the registration of digital documents with electronic signatures, as well as the use of registration certificates and acceptance electronic signature ”.
Another of the recommended points was « the legal regulation of artificial intelligence, robotization and artificial intelligence in social security, including provision of civil liability ».
Also the updating of the regulations on access to public information and the regulation of the right to be forgotten: « To issue regulations that guarantee the right of a person to have their data not remain indefinitely on the internet linked to facts or events in their life that could violate other rights or cause serious damage ”.
Environmental and animal protection
In terms of environmental law, the emphasis was placed on responsibility for environmental damage and environmental crimes.
Regarding liability for environmental damage, the specialists proposed regulating it by law, together with environmental insurance. Likewise, it was indicated that it was necessary to “specifically provide for access to environmental justice”.
For their part, in the area of environmental crimes, the specialists proposed the issuance of a comprehensive law on the matter.
The modification of the General Waste Law and the inclusion of the prohibition of certain single-use plastics was also proposed.
Another of the outstanding issues was the issuance of a new Animal Protection Law.
« Commission of the future »
After examining the entire legal system of the country, Promole’s technical advisory team made several recommendations.
It was proposed to form a group of experts made up of professionals from all law schools and with the contribution of the Bar Association and the Notaries Association, to draft bills on each of the prioritized issues.
It was also advocated to create a group that, periodically, detects topics of interest to the academy, to present proposals to Parliament. And another that studies the reform of the current codes: Customs, Aeronautical, Civil, Water, Commerce, Children and Adolescents, Mining, the Criminal, Rural and Tax Process.
The Commercial Code, for example, was promulgated in 1865. And the Penal Code in 1933.
In addition, it was suggested to create spaces for exchange on legislative technique between parliamentarians and academics, and to promote mechanisms for citizen participation in terms of improving legislation.
Another important recommendation is to create a working group made up of representatives of the Legislative and Executive powers that systematically monitor the regulation of laws, so that what is happening today does not happen: that many are not applied due to lack of regulation or have an inadequate or insufficient one.
Another group of experts should analyze compliance with the conventions ratified by Uruguay, such as that of people with disabilities.
It was also proposed to implement mechanisms to consider gender issues in the enactment of laws.
Finally, and among other recommendations, the creation of a « Commission of the Future » was suggested to work on « vanguard issues » and challenges to come at the legislative level.
Promole is scheduled to run until 2025.
The 2020 technical team was made up of lawyers Ximena Pinto Nerón (coordinator), Martín Thomasset, Cecilia Orlando, Mariana Castro, Carlos Esponda, accountant Diego Suárez and analyst Lucía Belén. The attorneys Florencia De Castro, Karina Goday, Mikaela Yarwa Silvera, Lorena Pinto Francia and Victoria Vergara acted as collaborators.