1307 OF 2009

(June 10)

Official Journal No. 47,376 of 10 June 2009

CONGRESS OF THE REPUBLIC

By means of which the nation is linked to the commemoration of the 50 years of the deannexation of the department of Putumayo to the department of Narino and other provisions are dictated.

COLOMBIA CONGRESS

DECRETA:

ARTICLE 1o. The Nation pays homage to the department of Putumayo, in order to commemorate 50 years of its de-annexation to the department of Narino. For such an exalta and recognizes the virtues of its inhabitants and those who have contributed to its development and strengthening.

ARTICLE 2o. As of the sanction of this law and in accordance with Articles 334, 341 and 359 numeral 3 of the Political Constitution, authorize the National Government to incorporate within the General Budget of the Nation and/or to promote through the National System of Co-financing necessary appropriations to allow the construction of the laboratories for the Putumayo Technological Institute (ITP), headquarters in Mocoa, Putumayo Department, code BPIN 0020-05931-0000, registered with the National Investment Projects bank of the National Planning Department, authorized by the Article 6o, numeral 3.3 last paragraph of the bill approved by the Congress of the Republic on Friday, May 4, 2007 with the number 201 of 2007 Chamber 1.99 of 2007 Senate, for which the National Development Plan 2006-2010 is issued.

ARTICLE 3o. The National Government is authorized to carry out the transfers, credit, against credits, inter-administrative agreements between the Nation and the Technological Institute of Putumayo (ITP).

ARTICLE 4. This law governs from the date of its enactment.

The President of the honorable Senate of the Republic,

HERNAN ANDRADE SERRANO.

The Secretary General of the honorable Senate of the Republic,

EMLIO RAMON OTERO DAJUD.

The President of the honorable House of Representatives,

GERMAN MALE COTRINO.

The Secretary General of the honorable House of Representatives,

JESUS ALFONSO RODRIGUEZ CAMARGO.

COLOMBIA-NATIONAL GOVERNMENT

Publish and comply.

Dada en Bogotá, D. C., 10 June 2009.

The Minister of the Interior and Justice, a delegate of presidential functions, by Decree number 2045 of 2009.

FABIO VALENCIA COSSIO

The Minister of Finance and Public Credit,

OSCAR IVAN ZULUAGA ESCOBAR.

CONSTITUTIONAL COURT

GENERAL SECRETARY

Bogotá, D. C., twenty-six (26) May two thousand nine (2009).

Trade No. CS-179

Doctor

HERNAN ANDRADE SERRANO

President

Congress of the Republic

City

Reference: Expediente OP-113 C-286 of 2009, Magistrate Rapporteur Doctor, Luis E. Vargas Silva. Demanded Rule Bill No. 129 of 2007 Senate, 282 of 2007 House, by means of which the Nation is linked to the commemoration of the 50 years of the deannexation of the department of Putumayo to the department of Narino and dictate other provisions.

Dear Doctor:

Comedies and in accordance with article 16 of Decree 2067 of 1991, I allow you to send you a copy of the C-286 of 2009 of twenty-one (21) of April of two thousand nine (2009), proffered within the reference process.

Cordially,

MARTHA VICTORIA SACHICA MENDEZ,

General Secretariat.

Annex the Statement with 25 Foles.

Annex to the legislative file with 182 pages.

REPUBLIC OF COLOMBIA

CONSTITUTIONAL COURT

Full Room

2009 C-286 STATEMENT

Reference: Expedient OP-113

Presidential Objections to Article 2o of Bill No. 129 of 2007 Senate, 282 of 2007 House, by means of which the Nation is linked to the commemoration of the 50 years of the deannexation of the department of Putumayo The department of Narino and other provisions are dictated.

Rapporteur Magistrate:

Luis Ernesto Vargas Silva

Bogotá, D. C., twenty-one (21) of April two thousand nine (2009).

The Full Court of the Constitutional Court, in exercise of the attribution conferred on it by article 241 of the numeral 8 of the Political Constitution and completed the formalities and requirements referred to in Decree 2067 of 1991, has proposed the following

STATEMENT

Within the procedure set out by reason of the objections raised by the National Government, contrary to Article 2o of Bill No. 129 of 2007 Senate, 282 of 2007 House, by means of which the Nation is linked to the commemoration of the 50 years of the deannexation of the department of Putumayo to the department of Narino and other provisions are dictated.

I. BACKGROUND

1. Getting started

The President of the honorable Senate of the Republic referred to this Corporation, by Office dated November 12, 2008, the Bill, through which the Nation is linked to the commemoration of the 50 years of the deannexation of the The department of Putumayo Department of the Narino Department and other provisions are being made to decide on the constitutionality of Article 2o of the Project, given the legislative rejection of the objections raised by the National Government.

2. Text of the Bill

The text of Bill 129 of 2007 Senate, 282 of 2007, is then transcribed and the article objects of analysis of constitutionality are highlighted.

" Law ...

"by means of which the Nation is linked to the commemoration of the 50 years of the deannexation of the department of the putumayo to the department of narino and other dispositions are dictated".

The Congress of Colombia

DECRETA.

Article 1o. The Nation pays homage to the department of Putumayo, in order to commemorate 50 years of its de-annexation to the department of Narino. For such an exalta and recognizes the virtues of its inhabitants and those who have contributed to its development and strengthening.

Article 2o. From the sanction of this law and in accordance with the articles 334, 341 and 359 " Number 3 of the Political Constitution, authorize the National Government to incorporate into the General Budget of the Nation and/or to promote through the National Cofinancing System the necessary appropriations to allow the construction of the block of laboratories for the Technological Institute of Putumayo (ITP), headquarters in Mocoa, Putumayo department, code BPIN 0020-05931-0000, registered with the National Investment Projects Bank of the National Department of Planning, authorized by article 6o, numeral 3.3 last paragraph of the Bill of Law approved by the Congress of the Republic on Friday, May 4, 2007 with the number 201 of 2007 Chamber, 199 of 2007 Senate, for which the National Plan of Development 2006-2010 is issued.

Article 3o. The National Government is authorized to carry out the transfers, credit, counter-credits, inter-administrative agreements between the Nation and the Technological Institute of Putumayo (ITP).

Article 4o. This law governs from the date of its enactment.

3. Processing of the initiative

3.1 On May 8, 2007, the honorable Representative to the House Guillermo Rivera Florez submitted to the Congress of the Republic the initiative through which the Nation is linked to the fifty years of the deannexation of the Putumayo Department, published in the Congress Gazette number 173 of May 10 of the same year [1].

3.2 The initiative to the Fourth Commission was distributed to the honorable Representative Juan Lozano Galdino to present Ponencia for the first debate, which was published in the Congress Gazette number 210 of 25 May 2007 [2].

3.3 According to the report of substantiation rendered by the Secretary of the Fourth Permanent Constitutional Committee, in Session of June 19, 2007, the bill number 282 of 2007 was announced for the next session, the which was approved on 20 June of the same year without amendment [3].

3.4 The presentation for the second debate in the House of Representatives is presented by the honorable Representative Juan Lozano Galdino and published in the Congress Gazette number 401 of August 23, 2001. 2007 [4].

3.5 The Ponencia Reports for First and Second Debate in the Senate of the Republic corresponded to the honorable Senator Juan Carlos Martínez Sinisterra, published in the Congress Gazette numbers 39 of 15 February 2008 and 363 of 13 June 2008, respectively [5].

3.6 The announcement for the second debate in the Senate of the Republic was held on Wednesday, June 18, 2008, as stated in the Minutes of the 56th of the Ordinary Session of that date, published in the Congress Gazette number 563 of 29 August 2008 [6].

3.7 The passage of the bill in plenary of the Senate of the Republic was held on June 19, 2008, as stated in Minutes number 57 of the same date, published in the Congress Gazette number 564 2008 [7].

3.8 According to the Reports of Substance, rendered by the respective Secretaries, the Fourth Permanent Constitutional Commission and the Plenary of the Senate of the Republic in Sessions of April 2, 2008 and June 20 of the same year, prior to the announcement of the previous day, the Bill of Law No. 129 of 2007 Senate, 282 of 2007 House, was approved without modifications [8].

3.9 By Office S.G. 2 1984, 2008, received at the Administrative Department of the Presidency of the Republic on July 8 of the same year, the Secretary General (E.) of the honourable House of Representatives, on the instructions of the President of the Corporation, referred to the Bill to which is mentioned for presidential sanction.

3.10 On July 15, 2008, the Minister of Finance and Public Credit returned to the honorable Congress of the Republic the Bill of Law No. 129 of 2007 Senate, 282 of 2007 House, without the respective sanction, " due to the unconstitutionality of one of its articles (...) " by means of communication of the date addressed to the President of the honourable House of Representatives [9].

3.11 On 13 and 20 August of the same year, the H (s). Representative and Senator Guillermo Rivera Florez and Juan Carlos Martínez Sinisterra, members of the accidental commission created for this purpose, delivered the reports on the presidential objections referred to, the which were considered and approved by the Plenaries of the House of Representatives and the Senate of the Republic on October 14 and November 18, 2008, respectively, as stated in the substantiation reports presented by the Secretaries-General of both legislative cells [10].

They point out the substantiation reports that the votes were announced at Sessions on October 8 and November 12, 2008, respectively.

3.12 Rejected the presidential objections raised against Article 2o of Bill No. 129 of 2007 Senate, 282 of 2007 House, on November 12, 2008 the President of the honorable Senate of the Republic referred the subject to this Corporation for the purposes of its competition.

4. Procedure set before this Court

4.1 Once received and distributed the file in this Corporation and in view of the need to have elements of judgment on the legislative procedure of the presidential objections, the Judge Substantiador Requested the Secretaries General of The Legislative Chambers refer to the Congress Gacts in which the Proceedings for the Plenary Sessions, held on 8 and 14 October 2008, are published in the honourable Chamber of Representatives, and 12 and 18 November of the same year in the honorable Senate of the Republic, and ii) Two copies of the Congress Gacts in which the reports on presidential objections to the Bill to which it is mentioned are published, subject to the consideration of the honourable members. Legislative Chambers.

4.2 On November 28 of the same year, the Secretary General of the Senate of the Republic certified and referred the Congress Gacts in which the Report of Objections-number 426 of Thursday, July 17-was published. 2008-the proposal requesting to declare unfounded the objections-number 550 of 26 August 2008-; the announcements made at the plenary sessions of Wednesday and Thursday 18 and 19 June 2008 and the approval of the last day mentioned-Congress Gacets numbers 563 and 564 on Friday, August 29, 2008-.

The Secretaries-General of the Congress of the Republic pointed out that the Acts corresponding to the plenary sessions had not been published.

4.3 Having regard to the foregoing and taking into consideration the essential character of the probative material, related to the advance in the Congress of the Republic to the presidential objection, the Plena Room, through Auto 360 of the three (3) of In December 2008, he refrained from deciding until the Gacetas of Congress referred to in the November 27, 2008 test request providence.

4.4 In compliance with what was ordered by the Court, the corresponding Congress Gacts were sent. Once verified by the investigating magistrate that all the evidence necessary to fail this constitutionality process was provided, the Court in Plena Chamber, by means of this ruling, will lift the suspension of the term to decide within the the process of constitutionality over presidential objections to the draft law of the reference.

5. The Objection

The National Government, in exercise of the attribution conferred by Articles 165 and 166 of the Political Constitution, objects to Article 2o of Bill No. 129 of 2007 Senate, 282 of 2007 House, by means of which the Nation is linked to the commemoration of the 50 years of the deannexation of the department of Putumayo to the Narino's department and other provisions are dictated, as it is inconsistent with the Framework Fiscal Medium Term, which is required of all bills involving tax impact, without exception, in accordance with Article 7or Law 819 of 2003, of an organic nature.

Expresses the Minister of Finance and Public Credit that article 2o of the draft law is suffering from an unconstitutionality because it is inconsistent with the Fiscal Framework of the Medium Term, which requires that all the bills involved tax impact, without exception, should be compatible with this Framework (MFMP), in accordance with Article 7o of Law 819 of 2002, of an organic nature.

States in this same sense that the bill did not make any projection of the resources required to finance the implementation of the planned works, and that the alternative source of resources for the purposes of such funding. For this reason, he believes that the draft law is inconsistent, however, that such programs are not provided for within the Medium-Term Fiscal Framework, and that, since they are not included, the project's expedition puts pressure on spending without counting with the source needed to cover them.

On the other hand, it assures that the Ministry of Finance and Public Credit by writing to the Congress on June 4, 2007, stated in due time that the bill consisting of the appropriation by the National Government and the the respective territorial entity, of resources for the financing of the works planned by the law, required the clear identification of the costs involved and the respective sources of financing, according to the article 7or Act 819 of 2003, and therefore the allocation of these resources is In the medium term, it is unsustainable for both the nation and the territorial entity. In this regard, he argues that the legislative chambers did not take into account the communication sent by the Ministry, in order to clearly identify the costs involved in the Bill and its sources of funding.

Given that the analysis of the respective fiscal cost and the additional source for its financing were not included in the project's papers, the government objects to this initiative as the precepts of the article 7or Act 819 of 2003, and therefore Article 151 of the National Constitution.

Therefore, in harmony with the foregoing and in accordance with the normative prelation of Article 7or Law 819 of 2003, to which the initiative was to have included the analysis of the fiscal cost and considered the source of financing, the National Government asked the Congress of the Republic "accept this objection in order to prevent the disarticulation of the resources and their destination to isolated objectives of the investment programs" already set ".

6. Insistence of the Congress of the Republic

The Congress of the Republic considers the presidential objections unfounded and insists on the sanction of the Bill to which it is mentioned.

effect, the reports on the objection, rendered by the honorable senator Juan Carlos Martinez Sinisterra and the honorable Representative Guillermo Rivera Florez approved by the plenary of the Legislative Chambers, consider i) that the Article 6or the National Development Plan 2006-2010 establishes that the Nation can make investments in the technological institutes of official decentralized character, under Law 790 of 2000 provided that (ii) the construction of the block of laboratories for the Instituto Tecnológico del Putumayo is registered with the National Investment Projects Bank of the National Department of Planning, and iii) that according to the settled case-law of this Court, " restrictions expressly contained in the C. P., Congress may pass laws that conduct public expenditure, in which case the Government will decide freely whether to include them in the respective draft budget. "

They hold the papers, with support in case law from this Court of which it brings, that the laws that decree public spending are not constitutionally tied to the government initiative, which is why the In the case of the Congress of the Republic in the matter, it is not contrary to the Political Charter, " with the obvious caveat that the initiative of its inclusion in the draft budget is exclusively and discretionally Government " -Statement C-325 of 1997-.

7. Concept of the Attorney General of the Nation

The Attorney General of the Nation, in exercise of the jurisdiction conferred by articles 278-5 of the Political Constitution and 32 of the Decree 2067 of 1991, finds unfounded objections, which is why it requests to declare the article objectionable by the National Government to be exequible and for that purpose it reiterates the concepts 4657 and 4664 of 14 and 25 November 2008, issued in cases similar.

Holds the Fiscal View, in light of the constitutional jurisprudence, which corresponds to the Congress, with the exceptions set forth in the Political Charter, "to order the reruns to execute the commitments inherent in the Social State of Law," That is to say, to create legal titles that the government will have to incorporate, if it deems it appropriate, to the National Budget with a view to satisfying the obligations decreed by the legislature.

In this regard, it stresses that the laws that authorize public spending, as soon as they do not modify the law of appropriations, nor order the execution of expenses, conform to the constitutional order provided that " are limited to enabling the Government to include these expenses in the budget. "

In harmony with the above and in attention to the "grammatical structure used by the legislator in the text of article 2o of the objecting project (...)", the Prosecutor concludes that the provision derives a simple authorization of public expenditure, those who may issue the Congress in use of their constitutional powers in the matter.

Argues that Article 7or Act 819 of 2003 generally refers to bills involving direct and indirect public expenditure, according to state resources or government resources. tax benefits or exemptions, constituting an important tool for streamlining legislative activity in the field of public expenditure, without any restriction of legislative activity in the field.

El Nacional] It is important that at no time did the legislature intend to invade the competition of the National Government in matters of public spending, as the objection maintains, as it would, according to the report of the Ponencia. Legislative chambers, " the construction that authorizes the article objected by the National Government, has been registered with the National Investment Project Bank of the National Department of Planning, authorized in turn by the National Plan of Development 2006-2010 ".

Also considers insufficient intervention by the Ministry of Finance and Public Credit in the course of the initiative if it is considered that

"limited itself to sending a letter to Congress, in which it expresses its inconformity with the bill as it considers it" inconsistent with the Fiscal Framework of the Medium Term (...), " without supporting its right as it is. doing so to whom "has the training, equipment, and technology to analyze the tax impact that a law of these characteristics (...)".

In harmony with the above, the objection made by the Presidency of the Republic, contrary to Article 2 of Bill No. 282 of 2007, House 129 of 2007, Senate, by means of which the Nation is linked to the The government did not meet the 50 years of deannexation of the department of Putumayo to the department of Narino, and other provisions were issued because the provision "does not constitute a mandate for mandatory compliance" and ii) because the executive branch did not satisfy the It forms the burden of explaining the tax costs generated by the contested law and assessing its inconsistent with the medium-term fiscal framework as outlined in article 7or Act 819 of 2003. "

II. CONSIDERATIONS AND FUNDAMENTALS

1. Competence

As provided by paragraph 4 (4) and Article 8 (8) of Articles 167 and 241 of the Political Charter, respectively, the Court Constitutional is competent to decide definitively on the constitutionality of Article 2o of Bill 129 of 2007 Senate, 282 of 2007 House, by means of which the Nation is linked to the commemoration of the 50 years of de-annexation of the department of Putumayo to the department of Narino and other provisions are being dictated, " objected by the National Government.

2. Compliance with the term for objections

Articles 166 and 167 of the Political Charter that the National Government has six days to object and return to the chambers In the second debate, the draft law is wholly or partially objected to, where the initiative will not contain more than 20 articles; 10 days when it will be twenty-one to fifty and up to twenty days when the articles are fifty-one and one or more [11]. Article 166 points out that if the term "no objection" is made, the President must sanction and promulgate the project in question.

They add the provisions that if the Chambers insist on the sanction and the objection is for reasons of unconstitutionality, the bill will go to this Court to decide on its exequibility, within the next six days.

3. Control regarding the processing of the Objections in the second plenary debate in each Legislative Chamber

The case law of this Corporation has been reiterated in stating that the control of the constitutionality of a draft law objected to by the President of the Republic is a matter not only of the objections of a material nature by the National Government, but also this analysis of constitutionality includes the formal verification of the legislative procedure of the objections in the light of the constitutional and legal provisions that deal with it [12]. Therefore, the material examination of the reproaches for unconstitutionality formulated by the Government must precede the formal study concerning the procedure given to the presidential objections to verify whether the procedure is in line with the (a) a review which, however, does not include the legislative procedure of the draft law, which may be subject to control by means of citizens ' claims [13].

On the other hand, this Corporation has also determined that the insistence of the Chambers constitutes a procedural budget in order to be able to assume the competence in the analysis of the exequability of the object project, since if such a requirement is lacking In full or in part, it must be understood that the draft law in question was filed in whole or in part, in accordance with the provisions of Article 200 of Law 5th of l992 [14].

Likewise, as soon as the Chambers are finished in order to insist on the passage of the bill, this Corporation has estimated that, in accordance with Article 162 constitutional, may be extended beyond two legislatures [15]. In other words, in no case can it be superior to the term with which it counts for the formation of the law.

passage omitted] [subhead] As regards the processing of presidential objections by unconstitutionality, it is necessary that, once the respective report is drawn up, this should be voted on by each Plenary in a different session than the one previously held. announced. The notice that a draft will be put to the vote will be given by the Presidency of each Chamber in session other than the one in which the vote will take place.

Regarding the processing of Presidential Objections under study, the following is stated:

3.1 It is noted in the present case that in accordance with the provisions of Articles 157, 165 and 166 of the Policy Charter and 196 of the 5th Act of 1992, by way of office received at the Presidency of the Republic on 8 July 2008, the Secretary General (E.) of the honorable House of Representatives referred for presidential sanction the Bill of Law number 129 of 2007 Senate, 282 of 2007 House, consisting of two articles, accompanied by their antecedents.

3.2 Points out the action that was received by the Minister of Finance and Public Credit on July 15 of the same year, received at the Congress of the Republic on July 16, the same year, and returned to the President of the House of Representatives. Project that is mentioned without sanctioning "due to the unconstitutionality of one of its articles".

That means then that the National Government objected to Project 129 of 2007 Senate, 282 of 2007 House, within the term established by article 166 constitutional, if the July 8, 2008 the Presidency of the Republic received the Project and the return of the same happened on the 16th of the same month, that is, within the next six working days.

3.3. They indicate the background that the Board of Directors of the House of Representatives appointed to the honorable representative Guillermo Rivera Florez a member of the Accidental Commission, for the study of the objection to which it is mentioned and that the Senate of the The Republic designated the honorable Senator Juan Carlos Martínez Sinisterra who presented two reports proposing to the plenary of the legislative chambers to insist on the sanction of the initiative.

3.3 Processing before the Chamber:

3.3.1 The report on presidential objections to Bill No. 282 of 2007 House, 129 of 2007 Senate, is published in the Gazette of Congress number 530 of Friday, August 15 2008 [16].

3.3.3 The announcement of the vote on the report on presidential objections in the House plenary session was held on October 8, 2008, as stated in the plenary session number 139 of that date, published in the i_aj">Congress Gazette number 798 of Friday, November 14, 2008. The announcement was made in the following terms:

" The General Secretariat reports (Dr. Luis Ramón Silva):

On the instructions of the President, with the authorization of the Secretary General, pursuant to Legislative Act 01 of 2003 and as directed by the Constitutional Court, the following projects are announced for the Plenary Session on October 14, 2008 or for the next plenary session at which bills or legislative acts are discussed.

Bill No. 282 of 2007 House, 126 of 2007 Senate, by means of which the Nation is linked to the commemoration of the 50 years of the desanexation of the department of Putumayo to the department of Narino and other provisions. Published in the Congressional Gazette number 530 of 2008 [17]".

3.3.4 The vote and approval of the report on the presidential objections in the Plenary of the House was actually held at the Plenary Session of 14 October 2008, as stated in the Minutes number 140 of the plenary session of that date, published in the Congress Gazette number 866 of November 26, 2008. The approval of the presidential objections report was carried out in the following terms:

" Report of objections to Bill No. 282 of 2007 House, 129 of 2007 Senate, by means of which, the Nation is linked to the commemoration of the 50 years of the deannexation of the department of Putumayo to the department of Narino and other provisions are dictated. "

Proposition: Based on the above considerations, we propose to the Plenary of the House of Representatives, to declare the presidential objections unfounded to Bill No. 282 of 2007, House, 129 of 2007 Senate, by means of which the Nation is linked to the commemoration of the 50 years of the deannexation of the department of Putumayo to the department of Narino and other provisions are dictated, and consequently, to insist on its approval according to the text approved by the Congress of the Republic, in the terms of the article 167 of the Political Constitution. Signing: Guillermo Rivera.

Address of the Session by the Presidency, Dr. German Varon Cotrino:

The Report on Objections is submitted to the Plenary Assembly for consideration, its discussion is opened, it is closed, it is closed. Do you approve of the Plenary?

Secretary Genera Dr. Jesus Alfonso Rodriguez C.:

Approved Mr. President[18]".

3.4 Processing before the Senate:

3.4.1 The rapporteur of the report on the honorable presidential objections Senator Juan Carlos Martínez Sinisterra requests the declaration of unfounded objections.

The report of the Accidental Commission of Study of Presidential Objections where objections are requested not to accept or declare objections and to insist on the approval of the project is published in the Gazette Congress number 550 of Tuesday, August 26, 2008 [19].

3.4.2 The announcement of presidential objections is published in the Congress Gazette number 110 of Thursday, March 12, 2009, according to Minutes number 25 of the ordinary session of the day of Wednesday 12 November 2008.

The announcement was made in the following terms:

" In accordance with Legislative Act No. 01 of 2003, and on the instructions of the Presidency, the Secretariat announces the projects to be discussed and approved at the next session.

Bills for next session with Objections Report:

(...)

Bill No. 129 of 2007 Senate, 282 of 2007 House, by means of which the Nation is linked to the commemoration of the 50 years of the desanexation of the department of Putumayo to the department of Narino and they are dictated other provisions "[20].

The end of the session is "called for Tuesday, November 18, 2008, at 2:00 p.m".

3.4.3 The approval of the project was made in the announced session of November 18, 2008, is published in the Congress Gazette number 111 of Thursday, March 12, 2009, as stated in Minutes number 26 of the ordinary session of the day of Tuesday 18 November 2008 [21].

According to the Secretary-General's certificate, the approval of the report of the Accidental Commission of Study of Objections was approved by 97 honorable senators who appear attending the plenary session as they have not been requested. Nominal vote, no quorum verification, no evidence of negative votes [22].

3.5 Exilibility regarding the processing of objections.

Based on the previous count regarding the processing of presidential objections in respect of Article 2o of Bill No. 129 of 2007 Senate, 282 of 2007 House, in second debate in each of the Legislative Chambers, this Court concludes that the requirements laid down in the constitutional order and in Law 5of 1992 were met, as soon as:

(i) The National Government objected and returned the initiative within the constitutional term.

(ii) The report of objections was published in advance of its debate and approval, in such a way that the Report of Ponence was known to the members of the legislative chambers in advance of their consideration in the Plenary Sessions.

(iii) The ads for discussion and voting on the report on presidential objections in a certain and determined manner, as provided for in Article 160 , were met. constitutional.

(iv) Finally, the requirements for the debate and vote on the report declaring the objections.presidential in the Plenary of each of the Chambers as unfounded were also met, as they took place on the date announced and they have the required constitutional majorities, as certified by the Secretaries-General of the Assembly and are checked by the Minutes of the plenary sessions published in the Congress Gacetas.

All of the above in accordance with the constitutional precepts contained in articles 160, 165 , and 167 Superiors.

Determined that the procedure established in the order was complied with, this Court should rule on the material content of the objection formulated by the National Government against Article 2 of the Law No. 129 of 2007 and Senate 282 of 2007 House, therefore passes the Room below to carry out the material examination of the presidential objections under study.

4. Material examination of objections

4.1 Legal issues raised

It is up to the Court to establish whether in the approval procedure of Article 2o of Bill No. 129 of 2007 Senate, 282 of 2007 House, by means of which the Nation is linked to the commemoration of the 50 years of the deannexation of the The department of Putumayo Department of Narino and other provisions are dictated, objected by the National Government for reasons of unconstitutionality was violated article 7or Law 819 of 2003, which deals with the analysis of the tax impact of the legal rules to be compatible with the Medium Term Fiscal Framework; and Since the latter is a provision of an organic law, article 151 of the Political Constitution was broken.

To resolve these legal problems the Court will make some considerations on the requirement of the analysis of the tax impact of the legal norms and then make the material examination of the above objections.

4.2 Demanding the tax impact of legal rules

4.2.1 In accordance with the provisions of Article 7or Law 819 of 2003 [23], for which organic rules on budget, liability and fiscal transparency are dictated and other provisions, it is required that: (i) the tax impact of bills that order expenditure or grant tax benefits should be made explicit at all times and be compatible with the Medium Term Fiscal Framework; (ii) to comply with these The purpose of the project, both in the project's explanatory statement and in the respective processing papers, must be expressly include the tax costs of the initiative and the source of additional income generated for the financing of these costs, and (iii) the Ministry of Finance and Public Credit, at any time during the legislative process, must provide a concept on the consistency of the aforementioned tax costs and the source of additional income, in accordance with the Medium Term Fiscal Framework [24] and that will be published in the Congress Gazette.

The Court has stated several times on the compliance with these requirements [25]. In Statement C-502 of 2007, he expressed that they are instruments of rationalization of the legislative activity that have a favorable impact on the application of the laws, in the implementation of the policies " Public finances and macroeconomic stability for the country, but they should not be used as a means to limit the exercise of the legislative function by the Congress of the Republic or to confer a veto power to the Ministry of Finance and Public Credit in connection with the processing and approval of the bills, as this would infringe the autonomy of the legislator and the principle of separation of branches from the public power.

Likewise, the Court has pointed out that, because of its functions and the human and material resources available to it, the principal responsible for the fulfillment of such a requirement has been the Ministry of Justice, which is responsible for the fulfilment of this requirement. that entity cannot determine the lack of validity of the legislative process or the relevant law. In this regard, the Court has held:

" 36. For all of the above, the Court considers that the first three incites of Article 7or of Law 819 of 2003 must be understood as parameters of rationality of the legislative activity, and as a " It is up to the Ministry of Finance,the Congress has valued, with the information and the tools it has at its disposal, the tax incidents of a certain bill. This means that they are tools to improve legislative work.

is to say, the aforementioned article should be interpreted as meaning that its purpose is to obtain that the laws that are dictated take into account the macroeconomic realities, but without creating insurmountable barriers in the exercise of the function The government not create a legislative veto in the head of the finance minister. And in that process of legislative rationality the main burden rests with the Ministry of Finance, which is the one that has the data, the officials ' teams, and the economic expertise. Therefore, in the event that the congressmen process a project incorporating erroneous estimates on the fiscal impact, on how to address these new expenses or on the compatibility of the project with the Fiscal Framework of Medium Term, it is up to the Finance Minister to intervene in the legislative process to illustrate to the Congress about the economic consequences of the project. And the Congress will have to receive and value the concept issued by the Ministry. Nevertheless, the burden of demonstrating and convincing the congressmen about the incompatibility of a certain project with the Fiscal Framework of the Medium Term falls on the Minister of Finance

On the other hand, it is necessary to reiterate that if the Ministry of Finance does not participate in the course of the project during its formation in the Congress of the Republic, it may well mean that the legislative process is vitiated by failure to take into account the conditions set out in Article 7or Law 819 of 2003. Since the main burden in presenting the tax consequences of the projects is the Ministry of Finance, the Ministry of Finance's omission to inform the congressmen about the problems presented by the project does not affect the validity of the legislative process or the relevant law "[26]. (Resalta the Room).

Therefore, the Chamber insists on this new opportunity, the jurisprudential criterion outlined and reiterated by this Corporation, about the responsibility that essentially falls to the head of the Ministry of Finance in the field of the study of compatibility between the bills that generate public expenditure and the Medium Term Fiscal Framework.

4.2.2 On the other hand, this Corporation has repeatedly expressed itself in relation to the constitutionality of rules that allow certain expenses to be incurred. In this regard, the Court has held that such authorizations do not infringe the distribution of powers between the Legislator and the Government [28]. In this regard, he has indicated that except for the express constitutional restrictions, the Congress can to pass laws that behave in public spending, and that it is up to the government to decide whether or not to include in the respective draft budget those expenditures, which is why what Congress cannot do when it decrees an expenditure, is to order The government is imperative to carry out budget transfers for the coverage of the respective resources.

Therefore, it has been understood by this Court that the control of constitutionality must answer the question whether the objectionable rule that decrees expenditure implies an imperative mandate directed to the executive, in which case it must declare it inexequable, or if, on the other hand, it constitutes a rule which limits itself to a public expenditure, thus constituting a sufficient legal title for the subsequent inclusion of the corresponding budget heading in the budget law, with the availability of resources, the priorities of the government, and in harmony with the principles and general objectives set out in the National Development Plan, as well as taking into account, where appropriate, the provisions of the territorial regime and the division of powers between the Nation and the entities territorial.

In this respect you have expressed this Corporation:

...] Thus, this Court has pointed out that, with the exception of the express constitutional restrictions, the Congress can pass laws that carry public expenditure. However, it is up to the government to decide whether or not to include in the respective draft budget those expenses, for which reason it cannot Congress, when it decrees an expenditure, "order budgetary transfers to arbitrate the respective resources" 28. Therefore, judicial scrutiny to determine whether a law is constitutional or not consists in analyzing whether the respective rule enshrines "an imperative mandate directed to the executive," a case in which it is inexequable, " or yes, by the This is a law that contracts to decree a public expenditure and, therefore, to constitute a sufficient legal title for the eventual inclusion of the corresponding item, in the law of the budget " [29], an event in which it is perfectly legitimate " [30] (...) [31].

In this sense, the Congress ' spending decrees become part of the universe of spending that the government has to take into account in formulating the annual draft budget, in accordance with the availability of resources and priorities. of the Government, and always in harmony with the principles and general objectives outlined in the National Development Plan, in the organic statute of the budget and in the provisions on the regime of territorial order that it reparts competences between the Nation and the territorial entities [32].

4.2.3 Likewise, this Corporation has indicated that the authorizations granted by the Legislator to the National Government, for the realization of expenses directed to execute works in the territorial entities, are compatible with the organic norms, and do not violate Article 151 Superior, where the objectionable rules relate to an disbursement through the co-financing system[33].

In this regard, the Court has declared unfounded some presidential objections against normative contents that authorize an expense in the exclusive principle of territorial entities, but which are actually understood within the exceptions set out in Article 102 of Law 715 of 2001, which previously corresponded to article 21 of Law 60 of 1993.

Article 102 of Organic Law 715 of 2001 states that " (e) the General Budget of the Nation may not include appropriations for the same purposes as this law, to be transferred to the territorial entities, different from the participations regulated in it, without prejudice to the budgetary appropriations for the execution in charge of the Nation with the participation of the territorial entities, the principle of concurrency, and of the co-financing items for the development of the exclusive competence functions of the territorial entities " (Resalta the Court).

Thus, for example, by Judgment C-486 of 2002 [34], the Court declared a provision that authorized the Government to " include within the General Budget of the Nation, budget appropriations (...) enabling the execution (...) of infrastructure works in the municipality of Condotus (...) ".

Likewise in Judgment C-399 of 2003 [35] this Court declared several rules that authorized the government " to allocate in the budget addition of the 2002 term and within the budget of the 2003 and following, the sums necessary to carry out the works of infrastructure of social interest that in the municipality of Servilla are required and this one does not have the necessary resources, as well as for the recovery of its patrimony historical and consolidation of cultural, artistic and intellectual capital (...) ". In this case the Corporation decided that these expenses would be related to the construction of works through the co-financing mechanism, and therefore the exception provided for in Article 102 of the Law 715 of 2001.

In conclusion the Court has held on this subject, that the authorizations granted by the legislator to the National Government, for the realization of expenses directed to execute works in the territorial entities, are compatible with the norms organic-and therefore do not violate the superior article 151 -when the objectionable rules relate to an disbursement through the co-financing system. In that case, the inclusion of the item for which the government was authorised is included within the exceptions provided for in the organic rules [36].

4.3 Absence of grounds for objection for violation of article 151 of the Political Constitution

4.3.1 The National Government considers that, in approving the Congress of the Republic, Article 2o of Bill 129 of 2007 Senate, 282 of 2007 House, by means of which the Nation is linked to the commemoration of the 50 years of the The deannexation of the department of Putumayo to the department of Narino and other provisions were violated in article 7or Law 819 of 2003, which deals with the analysis of the fiscal impact of the legal norms, and, by The latter is a provision of an organic law, the article was broken href="policy_constitution_1991_pr004.html#151"> 151 of the Political Constitution.

4.3.2 The contested provision provides for the financing of some investments, providing that from the sanction of that law and in accordance with the articles 334, 341 and 359 numeral 3 of the Political Constitution, the National Government may incorporate within the General Budget of the Nation and/or promote through the national co-financing system, the appropriate appropriations to enable The construction of the laboratory block for the Putumayo Technological Institute (ITP), headquarters in Mocoa, Putumayo Department. It clarifies the rule that this project is registered with the National Investment Projects Bank of the National Department of Planning, authorized by article 6o, numeral 3.3 last paragraph of the bill approved by the Congress of the Republic on Friday 4 May 2007 with the number 201 of 2007 Chamber, 199 of 2007 Senate, for which the National Plan of Development 2006-2010 is issued.

4.3.3 In relation to this objection it should be noted that:

(i) The National Government through the Ministry of Finance and Public Credit objected to the unconstitutional article 2 of Bill 129 of 2007 Senate, 282 of 2007, as inconsistent with the Fiscal Framework of the Deadline, in accordance with Article 7or Law 819 of 2003.

(ii) Evidently, the objectionable rule generates an expense in charge of the Nation, for which it is included in the provision of article 7or Law 819 of 2003, in accordance with which the study of the tax impact of such legislative expenditure declarations.

However, from the analysis carried out by this Court regarding the legislative procedure of the proposed initiative, the Chamber concludes that:

(iii) Article 2 of the draft law was included from the initial proposal and was maintained until the final text was adopted, as evidenced by the text of the bill initially presented by the representative to the House. Guillermo Rivera Florez [37] and the text presented for the second plenary debate of the Senate of the Republic [38], which was approved without modification.

(iv) The letter of the Minister of Finance and Public Credit in the legislative process of this legislative initiative [39], presents a general consideration regarding the appropriation of resources provided for in the project by the Government National and the respective territorial entity, for the financing of the works there raised, required the clear identification in the exhibition of motives and in the papers of the project of the fiscal cost of the same as well as the respective sources of financing of such cost, in accordance with the provisions of the href="ley_0819_2003.html#7"> 7or Act 819 of 2003.

In this regard, the Minister of Finance and Public Credit limited himself to stating that " [s] egun as exposed in the light of Article 7or Law 819 of 2003, it would be necessary for it to be clearly established in the For reasons and in the papers of the project, the tax cost of the project as well as the source of the additional income generated for the financing of this cost, ... ".

Of the foregoing, this Room shows that the demonstration by the Minister of Finance and Public Credit was restricted to holding in a general and brief manner that the project was inconsistent with the National Development Plan and to request the Congress to carrying out the tax impact analysis of the project in question, without providing the Ministry with a serious and concrete study of the tax impact of the project and of the reasons for which it considered that it was not consistent with the Fiscal Framework of Medium Term and the National Development Plan, which goes beyond simple statements general.

Therefore, according to the case law of this Corporation cited in the motivating and considered part of this providence, the Chamber considers that there is an omission by the Ministry of Finance and Public Credit not to provide in a timely manner a study or analysis regarding the tax impact of the bill in question and to limit itself to requiring this study and analysis by the Congress, being however the Ministry the entity on which it falls load, and the organism that technically and administratively is able to perform the respective tax impact study that can generate a law with the characteristics of the here under study.

(iv) In accordance with all of the above, this Chamber finds that the presidential objection to the alleged ignorance of Article 7or Law 819 of 2003 and as a result of the article 151 of the Constitution is unsubstantiated.

4.3.4 On the other hand, the objectionable provision uses the term "authorization" to express that it is limited to authorizing the national government to incorporate within the General Budget of the Nation and/or to promote through the national system of co-financing the necessary appropriations to allow the execution of specific works of a vital nature and of social interest for the department of Putumayo, such as the construction of the block of laboratories for the Technological Institute of Putumayo (ITP).

In this way, the objectionable provision does not imply an imperative order for the Executive, but the authorization or authorization for it to include the corresponding budget items within the General Budget of the Nation. In this respect, the Chamber finds that the objectionable rule is not unconstitutional either.

4.3.5 Additionally and in relation to the provision contained in Law 715 of 2001, which in its article 102 enshrines the general rule that the General Budget of the Nation will not be able to (a) to include appropriations for the same purposes as the law, in order to be transferred to the territorial entities, different from the participations regulated in it, the Chamber considers it necessary to recall that this same provision enshrines by way of derogation from that general rule, the budgetary appropriations for the implementation by the Nation with the participation of the territorial entities, from the principle of concurrency, and the departures of the co-financing for programs in development of functions of exclusive competence of the entities territorial.

In the present case, the rule that is objected to when dealing with the implementation of specific programmes and works that will be done with the participation of the respective territorial entity through the figure of the co-financing, falls under the assumption that the The exception provided for in Article 102 of Law 715 of 2001. In this respect, the rule objected is equally constitutional.

4.3.6 In conclusion, the Chamber shows that the objections made to the article article 2o of the Bill of Law number 129 of 2007 Senate, 282 of 2007 House, by means of which the Nation is linked to the commemoration of the 50 years of the The deannexation of the department of Putumayo to the department of Narino and other provisions are unfounded for three reasons:

(i) because there is no lack of knowledge of article 7or of Law 819 of 2003, and of the contera of article 151 Superior, as soon as it is to the Ministry of Finance and Public Credit, which, in accordance with the case law of this Court, has the burden of contributing to the Congress the technical study regarding the fiscal impact of the projects that generate public expenditure, an entity that was limited to demand of the Congress the study and analysis of the fiscal impact of the bill omitting to contribute a study of the Congress, an omission that does not go through the legislative process.

(ii) because the formula used by the Legislator for the financing of programs and works in the department of Putumayo, which deals with the article objected to, uses the expression "authorization", in such a way that it does not imply an imperative National Government to include the necessary budget items, but allows the government to incorporate into the General Budget of the Nation and/or to promote through the national system of co-financing, the appropriations necessary to enable the execution of specific works of a vital nature and of social interest to the department of Putumayo.

(iii) because the expenditure decreed by the legislator in the rule objected to the execution of the programs and works contemplated, may be covered by the participation of the territorial entity, in this case of Putumayo, through the principle of concurrency, and of the co-financing items, as provided for in Article 102 of Law 715 of 2001.

On the basis of the above, the Court will declare unfounded the objections of unconstitutionality formulated by the National Government to Article 2o of the draft law of the reference and declare that provision to be exequible, for the reasons analyzed. in this statement.

8 OFFICIAL JOURNAL Edition 47.376 Wednesday 10 June 2009

IX. Decision

In merit to the above considerations, the Constitutional Court, administering justice on behalf of the people and by mandate of the Constitution,

Resolves:

First. Lift the suspension of the term for sentencing, ordered by the Full Court of this Court by Auto 360 of three (3) December 2008.

Second. To declare unfounded the objections of unconstitutionality formulated by the National Government to Article 2o of the Bill of Law No. 129 of 2007 Senate, 282 of 2007 Chamber, by means of which the Nation is linked to the " The commemoration of the 50 years of the deannexation of the department of Putumayo to the department of Narino and other provisions are being dictated. And as a consequence of the above statement, to declare an exequible article 2o of Bill No. 129 of 2007 Senate, 282 of 2007 House, by means of which the Nation is linked to the commemoration of the 50 years of the deannexation of the department of Putumayo to the department of Narino and other provisions are dictated.

Notify, communicate, insert in the Constitutional Court Gazette, comply and file the file.

The President,

NILSON PINILLA PINILLA.

Clara Elena Reales Gutiérrez, Magistrate (E.); Mauricio Gonzalez Cuervo, Juan Carlos Henao Perez, Gabriel Eduardo Mendoza Martelo, Jorge Ivan Palacio Palacio, Jorge Ignacio Pretelt Chaljub, Humberto Antonio Sierra Porto, Magistrates.

LUIS ERNESTO VARGAS SILVA, MAGISTRATE (P.).

The General Secretariat,

MARTHA VICTORIA SACHICA DE MONCALEANO.

* * *

1 Cfr. Portfolio 114 of the Main Notebook; Pag. 1 Congress Gazette number 173, 2007.

2 Cfr. Books 98 and 99 of the Main Notebook; Pag. 26 Congress Gazette number 210 of 2007.

3 Cfr. Portfolio 82 of the Main Notebook.

4 Cfr. Folios 69 vto. and 70 of the case; Pag. 14 Congress Gazette number 401, 2007

5 Cfr. Folio 49 Main Notebook, Page 1 Congressional Gazette number 39 of 2008; and Folio 33 Notebook, Page 20 Congress Gazette number 363 of 2008.

6 Cfr. Portfolio 46 of Test Notebook No. 1, Pag. 48 Congress Gazette number 563 of 2008.

7 Cfr. Folio 86 Test Notebook No. 1; Pag.72 Congressional Gazette number 564 of 2008.

8 Cfr. Books 48 and 38 of the Main Notebook.

9 Cfr. Books 20 and 21 of the Main Notebook.

10 Cfr. Folios 10 and 2 of the file.

11 Cfr. Constitutional Court. C-510 statements from 1996, C-063 , 2002, and C-068 , 2004.

12 View among other Sentences C-1249 , 2001, C-070 , 2004, C-819 , 2004, C-531 , 2005, C- 929 2006.

13 C-985 2006 statement.

14 See C-036 1998 and C-500 2005.

15 C-068 2004, C-069 2004, and C-433 2004.

16 Cfr. Folio 8 Notebook No. 2 of Tests; Pag. 7 Congress Gazette number 530 of 2008.

17 Cfr. Portfolio 67 of Test Notebook No. 3; Pag. 34 Congress Gazette number 798 of 2008.

18 Cfr. Folios 27 and 28 Test Notebook No. 3; Congressional Gazette number 866 of 2008, Pags. 26 and 27.

19 Cfr. Books 181 and 182 of the Test Notebook No. 4; Pags. 10-11 Congress Gazette number 550, 2008.

20 Cfr. Folios 31 and 32 Test Notebook No. 4; pages. 30-31. Congress Gazette number 110, 2009.

21 Cfr. Folio 68 Test Notebook No. 4; Pag. 35 Congress Gazette number 111, 2009.

22 Cfr. Folio 1 Test Notebook No. 4.

23 " Item 7or. Analysis of the tax impact of the rules. At all times, the tax impact of any bill, ordinance, or agreement, which mandates spending or grants tax benefits, must be made explicit and must be compatible with the Medium Term Fiscal Framework. For these purposes, the tax costs of the initiative and the source of additional income generated for the financing of this cost must be expressly included in the explanatory memorandum and in the respective processing papers.

The Ministry of Finance and Public Credit, at any time during the respective procedure in the Congress of the Republic, will have to render its concept in the face of the consistency of the provisions of the previous paragraph. In no case will this concept be in the way of the Medium-Term Fiscal Framework. This report will be published in the Congress Gazette.

Government bills, which will raise additional expenditure or a reduction in revenue, will have to contain the corresponding substitute source for decreased expenditure or income increases, which will have to be analyzed and approved by the Ministry of Finance and Public Credit. In the territorial entities, the procedure provided for in the preceding paragraph will be made available to the respective Secretariat of Finance or who will do its own times.

24 ARTICLE 1or. MEDIUM-TERM FISCAL FRAMEWORK. Before June 15, the National Government, the National Government, will present to the Economic Commissions of the Senate and the House of Representatives, a Medium Term Fiscal Framework, which will be studied and discussed with priority during the first session. discussion of the Annual Budget Law.

This Frame will contain at least:

(a) The Financial Plan contained in Article 4 of Law 38 of 1989, as amended by paragraph 5 of Article 55 of Law 179 of 1994;

b) A multi-annual macroeconomic programme;

(c) The primary surplus targets referred to in Article 2or in this law, as well as the level of public debt and an analysis of their sustainability;

d) A report of macroeconomic and fiscal results of the previous fiscal year. This report should include, in the event of non-compliance with the targets set in the Medium Term Fiscal Framework of the previous year, an explanation of any deviation from the targets and the necessary measures to correct them. If the primary surplus target of the previous year has been breached, the new Medium Term Fiscal Framework has to reflect an adjustment that ensures the sustainability of public debt;

e) An assessment of the main quasi-fiscal activities carried out by the public sector;

f) An estimate of the tax cost of existing exemptions, deductions, or tax rebates;

g) The tax cost of laws sanctioned in the previous tax term;

h) A ratio of contingent liabilities that could affect the financial situation of the Nation;

i) In any budget, budget management indicators should be included, as well as the results of the disaggregated objectives, plans and programs for greater control of the budget.

25 The C-1113 2004; C-500 2005; C-729 2005; C-874 2005; C- 072 of 2006; C-856 of 2006; C-929 of 2006, and C-502 of 2007.

26 M. P. Manuel José Cepeda Espinosa. Salvage of Vote by Jaime Araujo Renteria.

27 See C-782 2001 and C-1047 Statements for 2004, among others.

28 C-490 1994 Statement, M. P. Eduardo Cifuentes Muñoz.

29 C-360 of 1994, M. P. Eduardo Cifuentes Muñoz. Legal Foundation No. 6.

30 Constitutional Court Judgment C-324 of 1997 M.P. Alejandro Martinez Caballero

31 Statement C-782 , 2001, reiterated in Statement C-1047 , 2004.

32 See Case C-782 of 2001, settled case law in Judgment C- 1047 of 2004. See also the presidential objection resolved by the C-197 2001 judgment, M. P., Rodrigo Escobar Gil, where the Court, in accordance with this case law, declared the presidential objections well founded. directed against a law that ordered the Executive to allocate some sums of money for the realization of certain works, declaring such inexequible rules.

33 See 1997 C-581 , C-196 2001, C- 197 2001, C-483 2002, and C-1047 2004, among others.

34 M. P. Jaime Cordoba Trivino.

35 M. P. Clara Inés Vargas Hernández.

36 View Statement. C-1047 , 2004, M. P. Manuel José Cepeda Espinosa.

37 Cfr. Folio 114 Main Notebook; Page 2 Congress Gazette number 173, 2007.

38 Cfr. Folio 92 Main Notebook; Page 14 Congress Gazette number 401, 2007.

39 According to the Presidential Objections, the Minister of Finance and Credit addressed this letter to the Congress by trade UJ-1152 of 4 June 2007. See folio 20 Main Notebook.