Ley Marco vs. Superintendencia de Servicios Publicos
In February of the present year, the Law No. 511 on the Creation of the Superintendence of Public Services (SISEP) was enacted. This Law substituted on its functions the Institutions rendering Public Services of Telecommunications, Energy and Drinking Water, (INAA, TELCOR; INE), and revoked their Organic Laws leaving them without any effect. From this legal event it existed in Nicaragua uncertainty for all the private parties who had established legal relationships with these institutions. Such uncertainty resulted from the political “legal” conflict between the Legislative Branch and the Executive Branch, among other reasons, caused by the amendments to the Political Constitution reducing the Executive Branch's attributions. The Executive did not recognize the appointment of the superintendent of public services nor of the commissioners of Energy, Telecommunications and Drinking Water, made by the National Assembly, arguing that these appointments lacked of legality, like the Constitutional Reforms, because, in the content of the same, reference was made to the appointment of the authorities of the Superintendence of Public Services. However, as part of an agreement made between the Frente Sandinista and the Executive Branch, on October of the present year, through Law No. 558, “Ley Marco (Framework Law) for the Country's Stability and Governance”, published in The Gazette, Official Newspaper No. 203 of October the 20 th 2005, the National Assembly suspended the application of the referred Law No. 511. The Ley Marco, on its Section 1, suspends until January the 20 th 2007, the application of the Law No. 520 on the Partial Amendment of the Nicaraguan Political Constitution; Law No. 511 on the creation of the Superintendence of Public Services; Law No. 512 on the Creation of the Institute for Reformed Urban and Rural Property; the Social Security Law; as well as other laws and legislative acts resulting from the same, leaving to the new authorities elected in 2006, the authority to accept or reject these laws. And it was established that the officials appointed by the National Assembly to hold the positions in the institutions created by virtue of these suspended laws, shall assume their positions until January the 20 th 2007. In section 2, it is established that during the current presidential period, the authorities appointed according to the laws in force prior to Law No. 520 on Partial Amendments to the Constitution, shall continue exercising their positions, and in the case of INE, the President shall submit to the National Assembly short lists for the appointments established in its Organic Law, appointments which has been already made. This so called “medicine” applied in good faith by the Executive Power has in our opinion, some legal deficiencies. Although it is certain that in Law, the expression: “…things are undue as they are due” is valid, this time, this principle was applied against the constitutional legal order, since it is legally impossible to revive through another law one that have been previously revoked, simply by stating that those officials exercising positions on these institutions shall continue on the same. The Organic Laws of these institutions were already revoked and these could only be revived if this new law would comprise all the provisions pretended to be revived. Besides the doctrinal and legal conceptions on what is possible or not, the fact is that once again, in our country, as a consequence of the enactment of the Ley Marco, the Organic Laws of the institutions responsible for the regulation of public services such as: water, energy and telecommunications (INAA, INE, TELCOR) are “in force” and this will contribute to the integration of new agents in the power and telecommunicationsmarket in benefit of our economic development.