INTRODUCTION
This document makes a comparison of the constitutional provisions contained in articles 267, 268, 271, 272 and 274 against the reform promoted by legislative act 04 (September 18, 2019) by means of which the Control Regime is reformed Fiscal. For the development of this exercise, the aforementioned articles will be cited selectively disaggregated into selected paragraphs to compare them with paragraphs of the legislative act that proposes the modification of the aforementioned Constitutional articles, to extract the most notorious and important differences and at the end express some general conclusions.
ARTICLE 267
CONSTITUTION
Fiscal control is a public function that will be exercised by the Comptroller General of the Republic, which oversees the fiscal management of the administration and of the individuals or entities that handle funds or assets of the Nation.
DRAFT LEGISLATIVE ACT No. 355 OF 2019
Surveillance and fiscal control are a public function that will be exercised by the Office of the Comptroller General of the Republic, which monitors the fiscal management of the administration and of individuals or entities that handle public funds or assets, at all administrative levels and with respect to all type of public resources
DIFFERENCES I
The draft legislative act adds the concept of oversight of the Comptroller's Office, as an additional power to that of Fiscal Control, and goes on to specify that oversight is at all administrative levels and all types of public resources, perhaps giving more scope to what has been up to now. Today the Political Constitution expresses when it specifies that the surveillance is over funds or assets of the Nation.
I believe that the strictness proposed by the draft legislative act in this paragraph fragment aims to avoid jurisprudential interpretations by the Constitutional Court.
CONSTITUTION
Said control will be exercised later and selectively in accordance with the procedures, systems and principles established by law. This may, however, authorize that, in special cases, the surveillance is carried out by Colombian private companies chosen by public competition of merits, and contracted prior to the Council of State.
DRAFT LEGISLATIVE ACT No. 355 OF 2019
Fiscal control may be preventive, concomitant, subsequent and selective, as necessary to guarantee the defense and protection of public assets. The Preventive and Concomitant Control will not imply co-administration and will be carried out in real time through permanent monitoring of the public resource, its cycles, use, execution, contracting and impact, through the use of information technologies and with the active participation of social control. The law will regulate its exercise and the applicable systems and principles for each type of control
DIFFERENCES II
In the draft legislative act it incorporates the concept of preventive control, that is, before the deviations object of prevention occur, and concomitant, that is, with support to the management, that is, an execution or permanent control exercised continuously while the process under surveillance and control lasts. In addition, the project eliminates the mention made by the constitution about the possibility that the surveillance be carried out by Colombian private companies chosen by public tender of merits, and contracted prior to the opinion of the State Council
CONSTITUTION
The supervision of the fiscal management of the State includes the exercise of financial, management and results control, based on efficiency, economy, equity and the valuation of environmental costs. In exceptional cases, provided for by law, the Comptroller's Office may exercise subsequent control over the accounts of any territorial entity.
DRAFT LEGISLATIVE ACT No. 355 OF 2019
The supervision of the fiscal management of the State includes the permanent monitoring of the public resource, without enforceability of legal reserve for the access to information by the fiscal control bodies, and the financial, management and results control, based on the efficiency, economy, equity and environmental sustainability. The Office of the Comptroller General of the Republic will have prevailing competence to exercise control over the management of any territorial entity, in accordance with what the Law regulates.
DIFFERENCES III
In the draft legislative act it incorporates the concept of permanent monitoring, in this section, it reiterates in other words the introduction of the concomitant term as a synonym for permanent or continuous control. It also underlines in the project the nature of unenforceability in access to legal reserve information within the framework of the fiscal surveillance and control process. The bill specifies the prevalence of the Comptroller General of the Republic to exercise control, over any other Comptroller of different levels of fiscal control. Aspect not strictly contained in the Constitution.
CONSTITUTION
DRAFT LEGISLATIVE ACT No. 355 OF 2019
The jurisdictional control of the judgments of fiscal responsibility will enjoy special stages and procedural terms in order to guarantee the timely recovery of the public resource. Its process may not be longer than one year in the way that the law regulates.
DIFFERENCES IV
The constitution does not contemplate in article 267, the provision contemplated in the draft legislative act.
CONSTITUTION
Only Congress can accept the resignation presented by the Comptroller and provide the absolute and temporary absences from the position.
DRAFT LEGISLATIVE ACT No. 355 OF 2019
Only Congress can admit the resignation presented by the Comptroller and provide absolute absences from the position.
DIFFERENCES V
The power of Congress to provide temporary absences from the office of Comptroller General of the Republic would be eliminated from the political constitution.
CONSTITUTION
To be elected Comptroller General of the Republic, it is necessary to be Colombian by birth and in the exercise of citizenship; be over 35 years of age; have a university degree; or have been a university professor for no less than 5 years; and accredit the additional qualities required by law.
DRAFT LEGISLATIVE ACT No. 355 OF 2019
To be elected Comptroller General of the Republic, it is necessary to be Colombian by birth and in the exercise of citizenship; be over thirty-five years of age; have a university degree in legal, human, economic, financial, administrative or accounting sciences and professional experience of no less than 5 years or as a university teacher for the same time and accredit the other conditions required by law.
DIFFERENCES VI
The draft article of the legislative act restricts the professional training to be elected Comptroller General of the Republic, limiting it to graduates in legal, human, economic, financial, administrative or accounting sciences.
CONSTITUTION
Anyone who is or has been a member of Congress or held any public office of the national order, except teaching, in the year immediately prior to the election may not be elected Comptroller General. Neither may anyone who has been sentenced to prison for common crimes be elected.
DRAFT LEGISLATIVE ACT No. 355 OF 2019
Anyone who is or has been a member of Congress or has served as fiscal manager of the national order, in the year immediately prior to the election, may not be elected Comptroller General. Neither may anyone who has been sentenced to prison for common crimes be elected.
DIFFERENCES VII
The project changes the inability to be elected Comptroller General from “whoever has held any public office of the national order cannot be elected” to “whoever has served as fiscal manager of the national order cannot be elected”, that is, the inability would be more lax in this sense by specifying the inability in the specific condition of fiscal manager and not in the broadest sense that any national public office
CONSTITUTION
DRAFT LEGISLATIVE ACT No. 355 OF 2019
This concomitant and preventive control will be carried out as a warning to the fiscal manager and must be included in a general warning system that must be public. "
DIFFERENCES VIII
The constitution does not contemplate article 267, it does not mention this development of the concomitant control that it introduces to the legislative act.
ARTICLE 268
CONSTITUTION
The Comptroller General of the Republic will have the following powers:
3. Keep a record of the public debt of the Nation and of the territorial entities.
4. Demand reports on its fiscal management from official employees of any order and from any person or public or private entity that administers funds or assets of the Nation.
5. Establish the responsibility that derives from the fiscal management, impose the pecuniary sanctions that are the case, collect their amount and exercise coercive jurisdiction over the scope deducted from it.
8. Promote before the competent authorities, providing the respective evidence, criminal or disciplinary investigations against those who have caused damage to the patrimonial interests of the State. The Comptroller's Office, under its responsibility, may demand, known truth and good faith, the immediate suspension of officials while the investigations or the respective criminal or disciplinary processes are completed.
12. Issue general rules to harmonize the fiscal control systems of all public entities of the national and territorial order.
DRAFT LEGISLATIVE ACT No. 355 OF 2019
3. Keep a record of the public debt of the Nation and of the territorially decentralized entities or by services.
4. Demand reports on its fiscal management from official employees of any order and from any person or public or private entity that administers public funds or assets.
5. Establish the responsibility derived from fiscal management, impose the pecuniary sanctions that may be the case, collect the amount and exercise coercive jurisdiction, for which it will have priority.
8. Promote before the competent authorities, providing the respective evidence, tax, criminal or disciplinary investigations against those who have allegedly caused damage to the patrimonial interests of the State. The Comptroller's Office, under its responsibility, may demand, known truth and good faith, the immediate suspension of officials while the investigations or the respective fiscal, criminal or disciplinary processes are completed. Likewise, you may exercise criminal action when the prosecution does not do so in the six months following the sending of the audit findings with criminal incidence, for which you may formulate the accusation in the same terms provided by law for the private prosecutor, as to the provisions of paragraph 2 of Article 250 of the Constitution.
12. To dictate general norms to harmonize the fiscal control systems of all public entities of the national and territorial order; and direct and implement, with the support of the General Auditor of the Republic, the National System of Fiscal Control, for the unification and standardization of the monitoring and control of fiscal management.
13. Warn public servants and individuals who administer public resources of the existence of an imminent risk in operations or processes in progress, in order to prevent the occurrence of damage, so that the fiscal manager can adopt the measures it deems proceeding to prevent it from materializing or spreading, and to exercise control over the events thus identified.
14. Intervene, within the framework of the fiscal surveillance and control function, when a territorial comptroller's office requires technical support, there is evidence of a lack of impartiality and objectivity, or it is requested by the local government, the popular election corporation of the respective territorial entity., a permanent commission of the Congress of the Republic, citizenship through any of the citizen participation mechanisms, or the territorial comptroller itself. The law will regulate the matter.
15. Present to the House of Representatives the General Budget and Treasury Account and certify the balance of the Treasury presented to Congress by the Accountant General of the Nation.
16. To exercise, directly or through the entity's public servants, the functions of judicial police that are required in the exercise of fiscal surveillance and control in all its forms. The law will regulate the matter.
17. Impose sanctions ranging from a fine to suspension to those who omit the obligation to supply information or prevent or obstruct the exercise of fiscal surveillance and control, or fail to comply with the fiscal obligations provided for by law. Likewise, to the representatives of the entities that, with intent or gross negligence, do not obtain the expiration of the accounts or favorable concept or qualification in the equivalent procedures for those entities not obliged to render an account, during two (2) consecutive fiscal periods.
DIFFERENCES IX
The draft legislative act incorporates 5 additional numerals to the provisions contained in the same article of the Constitution, expanding the range of powers of the Comptroller General of the Republic.
In numeral 3 it is proposed to change the obligation of the Comptroller General to keep the record of the public debt of territorial entities to keep a record of the public debt of territorially decentralized entities or services.
In numeral 4 only the term is changed to refer to the administration of assets of the Nation to use the term of managing public assets
In number 5, priority would be given to the coercive jurisdiction processes promoted by the Comptroller's Office over other coercive jurisdiction processes.
In numeral 8, the draft legislative act would be empowering the Comptroller's Office to exercise criminal action when the prosecution does not do so in the six months following the sending of the audit findings with criminal incidence, for which it may formulate the accusation in the same terms provided in the law for the private prosecutor, in accordance with the provisions of paragraph 2 of Article 250 of the Constitution
In number 8 of the project, the competence of the Comptroller is amplified when it is proposed that it direct and implement, with the support of the General Auditor of the Republic, the National Fiscal Control System, for the unification and standardization of surveillance and control. of fiscal management.
ARTICLE 271
CONSTITUTION
The results of the preliminary investigations carried out by the Comptroller's Office shall have probative value before the Attorney General's Office and the competent judge.
DRAFT LEGISLATIVE ACT No. 355 OF 2019
The results of the fiscal surveillance and control exercises, as well as of the preliminary inquiries or the processes of fiscal responsibility, carried out by the Comptrollerships will have probative value before the Attorney General's Office and the competent judge. "
DIFFERENCES X
The draft legislative act would introduce the results of the fiscal surveillance and control exercises as elements of probative value in the framework of the criminal process or assessment of the judge of knowledge.
ARTICLE 272
CONSTITUTION
The supervision of the fiscal management of the departments, districts and municipalities where there are comptrollers, corresponds to these and will be exercised later and selectively.
It corresponds to the assemblies and the district and municipal councils to organize the respective comptrollerships as technical entities endowed with administrative and budgetary autonomy.
The departmental, district and municipal Comptrollers will be elected by the Departmental Assemblies, Municipal and District Councils, by public convocation in accordance with the law, following the principles of transparency, publicity, objectivity, citizen participation and gender equity, for a period equal to that of the Governor o Mayor, as the case may be
DRAFT LEGISLATIVE ACT No. 355 OF 2019
The supervision of the fiscal management of the departments, districts and municipalities where there are comptrollers' offices corresponds to them concurrently with the Office of the Comptroller General of the Republic.
It is up to the assemblies and the district and municipal councils to organize the respective comptrollerships as technical entities endowed with administrative and budgetary autonomy, and to guarantee their fiscal sustainability.
The departmental, district and municipal Comptrollers will be elected by the Departmental Assemblies, Municipal and District Councils, from a shortlist made up of those who obtain the highest scores in public announcement in accordance with the law, following the principles of transparency, publicity, objectivity, citizen participation and equity. gender, for a period of four years that may not coincide with the period of the corresponding governor and mayor.
The next election of all territorial comptrollers will be held for a period of two years. The next territorial comptrollers must be elected and take office between January 1 and February 28, 2020.
DIFFERENCES X
The draft legislative act specifies the authority that the Office of the Comptroller General of the Republic has, to concur together with the territorial Comptrollers' offices in the surveillance and control processes, so that the control and surveillance in municipalities, departments and / or districts will be attribution exclusive of the municipal, district or departmental Comptrollerships.
The project adds the responsibility to the assemblies and the district and municipal councils to guarantee the fiscal sustainability of the comptrollers 'offices at their territorial level, beyond organizing the comptrollers' offices with administrative and budgetary autonomy.
The project specifies that beyond a public call to elect departmental, district and municipal Comptrollers, a shortlist will be constituted that will be made up of the candidates with the highest scores. Thus, the project seeks to detract from ambiguity or to eliminate interpretations, specifying the context of the election of Comptrollers at territorial levels.
The draft modification of this article of the constitution incorporates a provision not presented in this same article of the constitution, in the sense of establishing that the next election of all territorial comptrollers will be held for a period of two years. The next territorial comptrollers must be elected and take office between January 1 and February 28, 2020.
ARTICLE 274
CONSTITUTION
The supervision of the fiscal management of the Office of the Comptroller General of the Republic will be exercised by an auditor elected for two-year periods by the Council of State, from a list sent by the Supreme Court of Justice.
The law will determine the manner of exercising said surveillance at the departmental, district and municipal levels.
DRAFT LEGISLATIVE ACT No. 355 OF 2019
The oversight of the fiscal management of the Office of the Comptroller General of the Republic and of all the territorial comptrollers will be exercised by the Auditor General of the Republic, elected by the Council of State through public convocation in accordance with the law, following the principles of transparency, publicity, objectivity, citizen participation and gender equity, for a period of four years.
The law will determine the manner of exercising said surveillance at the departmental, district and municipal levels.
DIFFERENCES XI
The bill proposes that the oversight exercised by the Office of the Comptroller General of the Republic be exercised by the Auditor General of the Republic, leaving aside the current provision that only refers to such oversight being exercised by an auditor. By introducing some degree of meritocracy for the election of the Auditor General of the Nation, in addition, it expands its period from 2 years to 4 years.
CONCLUSIONS
In general terms, the aim is to strengthen the surveillance and control of public resources by increasing the budget of 500,000 million pesos, increasing the attributions of the Comptroller's Office and the very remarkable introduction of preventive and concomitant control through the form of warning control, which is budgeted for more opportunity in the fiscal surveillance and control function.
Departmental, district, and municipal comptrollers will continue to be elected by councils and assemblies respectively.
The councils and assemblies are obliged to guarantee the fiscal sustainability of the comptrollers' offices at their territorial level.
The process for the election of the new auditor remains firm, highlighted by the Council of State from a list sent by the Supreme Court of Justice
