LAW 1443 OF 2011

(March 28)

Official Journal No. 48,026 of 29 March 2011

CONGRESS OF THE REPUBLIC

By which article 2or Act 647 of 2001 is amended.

COLOMBIA CONGRESS

DECRETA:

ARTICLE 1o. Modify the literal c) of article 2or of Law 647 of 2001, which will remain so:

c) Affiliates. Only members of the academic staff, employees and workers of the respective University, and persons who at the end of their employment relationship are affiliated with the University System of Health and acquire the right to the pension with the same University or with the General Pension System.

The principle of free affiliation will be guaranteed and membership will be considered equivalent for the purposes of the General System's transit of the 1993 100 to the universities ' own system or vice versa, without concurrent affiliations are allowed.

ARTICLE 2o. Add a literal to the article 2or Law 647 of 2001, as follows:

f) For the purposes of this law, application shall be made to the Integrated Schedule of Amounts enshrined in Decree 1931 of 2006 and the rules that modify or add to it.

ARTICLE 3o. VALIDITY. This law governs from its publication and repeals any other provisions that are contrary to it.

The President of the honorable Senate of the Republic,

ARMANDO BENEDETTI VILLANEDA.

The Secretary General of the honorable Senate of the Republic,

EMILIO RAMON OTERO DAJUD.

The President of the honorable House of Representatives,

CARLOS ALBERTO ZULUAGA DIAZ.

The Secretary General of the honorable House of Representatives,

JESUS ALFONSO RODRIGUEZ CAMARGO.

NATIONAL REPUBLIC OF COLOMBIA

Publish and comply.

Dada in Bogotá, D. C., at March 28, 2011.

JUAN MANUEL SANTOS CALDERÓN

The Deputy Minister General of the Ministry of Finance and Public Credit, in charge of the Office of the Minister of Finance and Public Credit,

WILLIAM BRUCE MAC MASTER RED.

The Minister of Social Protection,

MAURICIO SANTA MARIA SALAMANCA.

The Minister of National Education,

MARIA FERNANDA CAMPO SAAVEDRA.

CONSTITUTIONAL COURT

GENERAL SECRETARY

Bogotá, D. C., twenty-four (24) February of two thousand eleven (2011)

Office No. CS-074

Doctor

ARMANDO BENEDETTI VILLANEDA

President

Senate of the Republic

City

Reference: Expedient OP-135 Statement C-939 of 2010. Bill No. 227 of 2008 Senate, 103 of 2008 Chamber, for which article 2or Law 647 of 2001 is amended. Magistrate Judge: Jorge I. Palacio Palacio.

Dear Doctor:

Comedies and in accordance with article 16 of Decree 2067 of 1991, I allow you to send you a copy of Judgment C-831 of 2010 of twenty-four (24) October of two thousand ten (2010), proffered within the reference process.

In time, I refer you the constant legislative record of 323 foles.

Cordially,

MARTHA VICTORIA SACHICA MENDEZ,

General Secretariat.

_{Attachment copy of the statement with 34 folios.}

_{Attached legislative file 323 folios.}

CONSTITUTIONAL COURT

2010 C-939 statement

Reference: Expedient OP-135

Presidential Objections to Bill No. 227 of 2008 Senate, 103 of 2008 Chamber, for which article 2or Law 647 of 2001 is amended.

Magistrate Judge: Dr. Jorge Ivan Palacio Palacio.

Bogotá, D. C., twenty-four (24) November of two thousand ten (2010).

The Full Court of the Constitutional Court, in exercise of its constitutional and legal powers, in particular those provided for in Articles 167 and href="policy_constitution_1991_pr008.html#241"> 241 numeral 8 of the Political Constitution, and completed all the formalities and requirements referred to in Decree 2067 of 1991, propose the following:

STATEMENT

I. BACKGROUND

By trade received by the General Secretariat of this Corporation the twenty-five (25) of May of two thousand ten (2010), the President of the Senate of the Republic made to arrive copy of the file of the Bill of Law No. 227 of 2008 Senate, 103 of 2008 Chamber, for which article 2or Law 647 of 2001 is amended, which was objected to by the National Government for reasons of unconstitutionality and inconvenience.

For the corresponding distribution, the case was sent for substantiation on the twenty-seven (27) of May two thousand ten (2010). The following June 2 (2) became aware of the process and requested the Secretaries-General of the Senate of the Republic and the House of Representatives to send the evidence corresponding to the legislative procedure followed for the approval of the report on presidential objections. The General Secretariat of the Presidency of the Republic was also officiated to send the certification of the exact date in which the corresponding objections were filed in Congress, accompanying the constances of rigour.

Because the totality of the tests necessary to verify whether the approval of the objections report was completed in due time, the Court proposed the Auto 125 of June 16, 2010, by which it was refrained from deciding objections as long as constitutional and legal budgets were not met to do so. In the same providence, the Chamber submitted the following procedure to the verification, by the Judge Substantiador, that the evidence on the processing of the presidential objections to the draft of the reference was made.

Following the requirements of the Secretary General of the Senate, which were reiterated through Auto on October 29, 2010, the evidence needed to continue with the control process was made available to the file. In the case of the reference, which is why the Judge Substantiator Decided to proceed with the process.

II. OBJECTING BILL TEXT

The Court then transcribes the final text, passed in Congress, of Bill No. 227 of 2008 Senate, 103 of 2008 House, for which the article 2of the Law is amended 647 of 2001:

" LAW No. __

by which article 2of Law 647 of 2001 is amended.

The Congress of Colombia

DECRETA:

"Item 1o. Modify the literal c) of article 2º of Law 647 of 2001, which will remain so:

c) Affiliates. Only members of the academic staff, employees and workers of the respective University may be affiliated with the University of Health, and persons who are affiliated with the University Health System at the end of their employment relationship. and acquire the right to the Pension with the same University or the General System of Pensions.

The principle of free affiliation will be guaranteed and membership will be considered equivalent for the purposes of the general system transit of the 1993 100 to the own system of the universities or vice versa, without the use of simultaneous affiliations.

Article 2. Add a literal to article 2of Law 647 of 2001, as follows:

f) For the purposes of this law, the Integrated Plan of Amounts enshrined in Decree 1931 of 2006 and the rules that modify or add it will be applied.

Article 3. Vigency. This law governs from its publication and repeals any other provisions that are contrary to it. "

III. LEGISLATIVE PROCESSING OF THE OBJECT PROJECT

The legislative procedure of Bill No. 227 of 2008 Senate, 103 of 2008 Chamber, for which article 2or Law 647 of 2001 is, presents the following facts relevant:

1. Initiative and Process in the House of Representatives

- On August 25, 2008, the bill was presented to the General Secretariat of the House of Representatives, by Congressman Jaime Restrepo Cuartas, who is based on the number 103 of 2008. The project was published in the Congress Gazette number 549 of August 26, 2008 (folios 306 to 308).

- The positive presentation for the first debate in the 7th House Committee, presented by Representative Amanda Ricardo de Paez, was published in the Congress Gazette number 686 of 3 October 2008 (folios 268 to 269).

- According to the substantiation report by the Vice President and the Secretary-General of the Seventh Permanent Constitutional Commission of the House of Representatives_[1], the announcement prior to the Discussion and vote on the draft took place on 8 October 2008 (Minutes 9). Much of the discussion of the project was conducted at the session on October 21 (Act 10, Congress Gazette number 72 of 16 February 2009, pages 12 and below). There the Commission decided to suspend the discussion and postponed it for the next session. The text was adopted unanimously at the meeting on 4 November 2008, with a decision-making quorum of 16 of the 19 representatives of the Commission (Acta 11)_[2]

.

- The presentation for the second debate in the House of Representatives, presented by the Representatives Amanda Ricardo de Paez and Jorge Morales Gil, was published in the Congress Gazette number 821 of 19 November 2008 (folios 91 to 94).

- According to the substantiation report signed by the Secretary General of the House of Representatives_[3], the announcement prior to the discussion and vote of the bill was given at the Plenary Session of 18 November 2008 (Act 151_[4]), where it was expressly stated that these would be carried out on 25 November 2008. In fact, the article was approved at the plenary session on November 25, with a decision-making quorum of 158 of the 166 Representatives that make up the Plenary (Acta 153)_[5].

2. Procedure in the Senate of the Republic

- Issued the project to the Senate of the Republic_[6], the Presidency of that House distributed the same to the Seventh Permanent Constitutional Commission, based on the number 227 of 2008_[7].

- The presentation for the first debate in the Seventh Senate Committee, presented by the Senators Gloria Inés Ramírez Rios, Dillian Francisca Toro and German Antonio Aguirre Muñoz, was published in the Gazette of Congress number 875 of September 10, 2009 (folios 152 to 156)_[8].

-In parallel, on September 14, 2009, the Minister of Finance and Public Credit referred to the Presidency of the Seventh Senate Committee a concept about the bill, which is worth noting: " The measure that is intends to implement, it would restore availability to the Public Universities for the development of its academic activity, accentuating the financial problem that on several occasions and in different scenarios have manifested the different estaments and representatives of the same "_[9].

- According to the substantiation report by the Secretary-General of the Senate's Seventh Constitutional Constitutional Commission_[10], the announcement prior to the discussion and vote of the bill was given in Meetings of 16 September 2009 (Act 06) and 7 October of the same year (Act 07), and the articles were adopted at the meeting on 13 October 2009, with a decision-making quorum of 8 of the 14 Senators that make up the Commission (Act 8).

- In the meantime, on October 13, 2009, the Minister of Social Protection presented an "institutional concept" on the draft law, indicating that he himself does not know the principle of equality enshrined in the law. Article 13 Superior and contributes to the proliferation of special regimes.

- The presentation for the second debate in the Senate (Plenary), presented by the Senators Gloria Inés Ramírez Rios, Dilian Francisca Toro and German Antonio Aguirre Muñoz_[11], was published in the I_aj">Congress Gazette 1042 of October 16, 2009 (folios 80 to 84).

-Later, the Minister of Finance and Public Credit reiterated again the "comments" submitted to the bill, through offices located in the Presidency of the Senate of the Republic on November 17, 2009_[12] and 9 December 2009_[13].

- According to the substantiation report signed by the Secretary General of the Senate_[14], the announcement prior to the discussion and vote of the bill was given in Plenary Session of December 10, 2009 (Minutes 25). The following session was held on Monday, December 14, 2009 (Act 26, Congress Gazette number 26). In this, Bill 227 of 2008 Senate, 103 of 2008 House, was again announced for second debate for the next session (pp. 72 and 73). Finally, the article was effectively approved at the Plenary Session of December 15, 2009 (Act 27)_[15].

IV. OBJECTIVES OF THE PRESIDENT OF THE REPUBLIC

The government objected to an unconstitutional one apart from the article 1 of the bill and, as a consequence, returned it to the Congress without the corresponding presidential sanction.

The Executive considers that the modification to the literal c) of article 2or of Law 647 of 2001 entails an extension of the Health System of the state or official universities, " those persons who at the end of their employment relationship are affiliated with that System and acquire the right to the pension with the General Pension System. "

For the government, the object is not known to the article 13 of the Constitution, because it generates discriminatory treatment in relation to the other pensioners who are governed by the General System of Pensions and which by law are obliged to be affiliated with the General System of Social Security in Health. It explains that such a provision implies that all persons who are in the same legal situation, in this case those affiliated with the General Pension System, must be treated equally by the authorities and argue:

In the document that contains the presidential objections, it is ensured that the general rule is that there is equality between persons and groups of persons and that, therefore, to establish unequal treatment, without an objective and reasonable justification, entails discriminatory treatment and contrary to the Political Constitution. Under these conditions, you explain the following:

" In this case, the pensioners who belong to the General System of Pensions are compared, which at the end of their employment relationship are affiliated with the Health System of a state or official university, with the pensioners This system has not been linked to this Health System, with unequal treatment, since the former will not be obliged to join the General System of Social Security in Health, while the seconds if; obeying such discrimination, to the fact that the former before frock were linked to the University Health System in which they worked.

" So, if it is admitted that certain people who are penalized under the rules of the General System of Pensions, they are created a special regime in the matter of health, with different health services and taking into account that these The universities are not obliged to compensate for not receiving the General System of Social Security in Health the contributions, they would be leaving to perceive resources that contribute to finance the health service of those people that with their own In the case of the Commission, the Commission has been able to make a contribution to the service, affecting the principle of solidarity and violating the principle of equality when generating discriminatory treatment with respect to the other pensioners who are governed by the General System; ignoring the Law 100 of 1993 created the System of Integral Social Security, as a public service, for all inhabitants of the national territory and whose purpose, among others, was the unification of the applicable regimes in health and pensions ".

The Executive warns that the legislator can create special pension schemes, provided that they are supported by "constitutionally protected goods or rights"; adds that none of the These questions are supported by the draft law and insist that, under these conditions, discriminatory treatment is generated.

Later, it states that the bill also contravenes the principles of universality, solidarity and efficiency, provided for in article 48 of the Constitution, because as As a result of the same, there would be no "the contributions made by these people in the Social Security System in Health, to contribute to the financing of the same (...)".

Finally, you consider that the project might break the progressiveness mandate contained in article 69 Constitutional, in so far as in certain cases you would be increasing the the obligations of universities in the field of health, to the detriment of resources that would serve to improve access to higher education.

The executive warns that the provision is inconvenient because it is "contrary to the purpose of the General System of Social Security in Health", since it does not know the unification of the "regime of the different paying agencies". health care providers and pensions " and the guidelines underpinning the insurance scheme under the contributory scheme contained, inter alia, in Article 203 and the Article 157 of Law 100 of 1993. It warns that the rule would end by making the general rule exceptional and prevents it from being contrary to the doctrine of the Constitutional Court and the State Council, " referring to the need for a Single System of Social Security in Health ' ". In this context, he cites several of the" C-1435 "s 2000 and C-033 Sentences, and then concludes the following: " To prosper initiatives such as the Under the draft law in the study it would be contributing to the proliferation of special regimes, which distort and disconfigure the philosophy and spirit of the legislator when creating the General System of Social Security in Health enshrined in the Law 100 of 1993. "

Finally, the Government clarifies that through Decree 4248 of 2007 it regulated the regime applicable to members and beneficiaries of health services in public or official universities, " allowing those who were linked to this health service, prior to the entry into force of the Law 100 of 1993, to exercise its right to free choice between an EPS of the General System of Social Security in Health and the health service of state or official universities (...) in such a way that those with In advance of the Law 100 of 1993, they were affiliated to the health service of a university could continue in this one; and on the contrary, those to whom it applies the said law must choose an EPS of the System General of Social Security in Health and for this the procedure provided for in Decree 4248 of 2007 will be advanced ".

V. CONGRESSIONAL INSISTENCE ON APPROVING THE PROJECT OBJECTED

Pursuant to article 167 of the Constitution and article 66 of the 5th Act of 1992, legislative cells integrated an Accidental Commission with the purpose of analyzing the arguments of the Executive, to draft a joint report and to present it for consideration of each of the Plenary. The report that was born of this Commission, made up of Senators Dilian Francisca Toro Torres and German Antonio Aguirre Munoz, and the Representatives Amanda Ricardo de Paez and Jaime Restrepo Cuartas, concluded: " 1. We insist on the exequability of the bill. | | 2. WE REJECT the inconvenience of the bill".

According to the report on the substantiation of presidential objections, signed by the Secretary General of the House of Representatives_16], the announcement prior to the discussion and vote of the document emanating from the Accidental Commission The plenary session of 4 May 2010 (Act 238) and its approval were held at the plenary session on 11 May of the same year (Acta 239). For its part, in the report of the substantiation of the study of the presidential objections signed by the Secretary General of the Senate of the Republic_[17], it is indicated that the document presented by the Accidental Commission was published in the Congress Gazette number 157 of 2010, which the previous announcement was made at the Plenary Session of May 4 (Act 35) and which was approved at the Plenary Session of May 11, 2010 (Act 36).

The arguments that support the insistence of the Congress of the Republic in the approval of Bill No. 103 of 2008 House, 227 of 2008 Senate, are as follows:

1. First, the Congress addressed the legislative and case-law background of Law 647 of 2001, "by which item 3or is amended href="ley_0030_1992_pr001.html#57"> 57 of Law 30, 1992 ". In this sense, he emphasized that this provision constituted the application of the principle of university autonomy provided for in the article 69 Superior. He then proceeded to transcribe article 1 of this standard, as follows: " The special character of the regime of state or official universities will include the organization and choice of directives, teaching staff and administrative, the system of state or official universities, the financial regime, the regime of contracting and fiscal control and their own social security in health, in accordance with this law".

Later, he explained that the Law 647 added the other underlined to the original text of Law 30 of 1992 and warned that when he himself was in legislative process also was objected by the executive branch, because of the university autonomy, the creation of a special health social security system could not be inferred and that the provision violated the principle of material equality when the scope of the Law 100 of 1993. Under these conditions, he reported that the objections were studied in Judgment C-1435 of 2000, where the bill was partially inexequable, to which the following procedure followed:

" (...) as inexilibility could be remedied to the extent that the Congress of the Republic, in strict adherence to the principles of universality, efficiency and solidarity, will add the legislative initiative with a basic regulatory content on the social security scheme applicable to universities in the State. In this regard, he stated that the law should enshrine those general aspects applicable to the new system such as those related to: (i) its organization, direction and functioning; (ii) its administration and financing; (iii) the persons called to participate in the quality of affiliates and beneficiaries; (iv) its benefits regime, and (v) the health service providers.

In compliance with the aforementioned judgment of the Honorable Constitutional Court, it sent a copy of the legislative file to the Chamber of Origin so that, heard by the Minister of the Industry, it was made and integrated (sic) the rule declared partially inexequable to be concordant (sic) with the opinion of the Constitutional Court and that once this procedure has been completed, the Congress will transmit (sic) to the Cut the project for definitive ruling.

Tasting to Judgment 1435 of 2000, the Congress of the Republic, having previously heard the concept of the Minister of Health, remade (sic) the text and in effect added the paragraph where the rules on the organization, direction and operation of the new system, administration and financing were contemplated, the latter aspect of which refers to what is foreseen in the Law 100 1993. Similarly, he pointed out who could serve as affiliates and guaranteed the principle of free affiliation. With respect to the regulation on beneficiaries and the plan of benefits, the new paragraph also refers to the provisions of the sic " (sic) on this issue in the Law 100 of 1993, a reference that also In the case of contributions (sic) of solidarity. As for the health service providers, the new legal regulation indicates that health services may be provided directly by the universities that decide to organize their own regime, or that they may be hired. with other institutions providing such services ".

Later, he pointed out that the Government, through Article 16 of Decree 1890 of 1995, rules the legal situation of those persons who were workers before December 23, 1993, will end up retiring in the "entities". adaptation object ", so that they can continue to receive the health service in the latter_[18]. He added that Decree 4248 of 2007 regulated the subject of the affiliates and beneficiaries linked to the health service of the universities and proposed that this provision led to " those who were linked to the health service, before at the entry into force of the Law 100 of 1993, they could exercise their right to the free choice between an EPS of the General System of Social Security in Health and the health service of the state universities or officers. | | Although this last decree allows those linked to University Systems, retired by the General System of Pensions to continue within these health systems, it restricts this possibility only to those who had been linked to that health service, prior to the entry into force of the Act 100 of 1993. "

According to these arguments, the Congress concluded the following: " (...) the Decrees 1890 of 1995 and 4248 of 2007, recognize a group of retirees for the General System of Pensions, the right to continue to be linked to the adapted systems, the first and the university systems the second ".

2. On the other hand, as far as Bill 103 of 2008 House, 227 of 2008 Senate, is concerned, the Legislative Assembly considered it necessary to specify the reasons that led him to approve the initiative. In this regard he stated:

" The reason for modifying Law 647 of 2001, is based on the need to preserve the health continuity of those affiliated with the university's guaranteed health care systems during their the employment link but unfairly prevented, after the pension is awarded by the General Pension System.

The bill aims to supplement the law, for the purposes of not leaving it to the free interpretation that it has had during its term, in order to allow respect for the right to equality, free choice and continuity in health of those affiliated to university health systems after the recognition of their retirement pension, independent of quiandn be the entity responsible for their payment ".

Added to this, the Congress considers the project to "tone down" Law 647 of 2001 with the General Pension System provided for in Law 100 of 1993, as it allows the Members of this regime have the possibility to choose the type of health service that suits them best, avoiding unequal treatment that would occur among the pensioners of the educational institution and those employees who, despite their retirement for the University, they must join the General System. On the particular issue, the following was stated:

" The bill also aims to set the law 647 with the rules related to the power to grant pensions, because with the entry into force of the Law 100 of 1993 and specifically, with the issuance of Decree 2337 of 1996, the public universities of the territorial order, lost competition to continue to penalize the staff that after 31 of December 1996 met age and service time requirements; similar situation occurred with respect to the Decree 2527 of 2000 that he set out in a restricted manner the conditions that the public official should gather to be directly penalized by the employer. In this way it generates the normativity in pensions, an overview that affects not only the competent for the payment of the economic benefit, but also the quality of the members, in front of the content of the literal c) of the article 2, of Law 647 of 2001 that despite the transcribed provisions speaks of the pensioners and retirees of the respective University, leaving out the employees of the university who acquire the right to the pension by the General Pension System. "

In the face of the violation of the right to equality and the lack of knowledge of the principles of the Social Security System provided for in Article 48 of the Constitution, the Congress considers that the reasonableness test needs to be applied. Under this framework, the Legislative Assembly accepts that there is an unequal treatment that is presented to the " to allow those persons who at the end of their employment relationship and who are affiliated with the University Health System to acquire the The right to the pension with the General System of Pensions, can continue affiliated to the University System of Health, in front of the other pensioners that are governed by the General System of Pensions and that are legally obliged to belong to the contributory scheme of the General System of Social Security in Health ".

Regarding the implicit objective of the annotated differentiation, the Congress noted the following: " In the case that we are dealing with, the objective is to allow those persons or related officials (sic) to University and affiliated to the University Health System can be free, continue to receive the services provided by said system, to preserve the continuity of health care that they have received as affiliates, not only during their employment relationship, but also, after the granting of the benefit economic. The objective also allows to avoid the possible traumas that may involve for those who end their employment relationship, a transfer to a new and different health service provider in which they will not find effective care and efficient, since because of their age and their pathologies they are already being cared for by the health system to which they are linked; moreover, it must be taken into account that this is a vulnerable population, due to their age, with procedures and ongoing treatments, which would involve initiating new processes in the face of the EPS to which they are transferred. "

The Congress then argued that the measure is valid in the light of the Constitution, because the University Health Systems are supported by the principle of university autonomy and that its regulation defines the "mechanisms that guarantee compliance with the principles of Solidarity, Free Affiliation, Universality and Efficiency". He also stated that the Constitutional Court has accepted the legitimate existence of special pension schemes, provided that they guarantee a level of protection equal to or higher than the general regime_[19]. He added that the article 13 Constitutional requires the adoption of measures in favor of persons who, by their condition, are in fact of manifest weakness and colligy the following:

" It is necessary to warn at this point that following the legal provisions in force the amendment introduced by the bill to literal c) of article 2º of Law 647 of 2001, since the entry into force of Law 100 of 1993 and specifically, with the issuance of Decree 2337 of 1996, the public universities of territorial order, lost competition to continue to pensione the staff that with After 31 December 1996, it complied with age and time requirements for services. Similar situation occurred in the case of Decree 2527 of 2000 that restricted the conditions that the public official should meet to be directly penalized by the employer".

" On the contrary and in contradiction with the position of the Executive, in the face of the alleged violation of the principle of equality, we could affirm that the literal c) of the article 2º of Law 647 of 2001, in the current terms it would be in violation of the principle of equality of the employees belonging to the universities that having the right to be linked to the University System of Health they were forced to withdraw from it, having obtained the right to the pension by the General System of Pensions, compared to employees of the same university who earned retirement recognition by the same entity".

"It is clear from the above that unequal treatment is valid and is protected in constitutional and legal principles."

The Congress culminated in the application of the 'test', analyzing the reasonableness of unequal treatment. He supported this analysis in the principle of continuity in health care applicable to the vulnerable population due to their age and that some of the people who benefit from the bill have already initiated procedures and treatments. doctors. He concluded that the unequal treatment denounced by the Government "is fully related (sic) by higher standards and such treatment is reasonable and proportional to the aim pursued".

3. Subsequently, the Congress referred to the supposed lack of knowledge of the principle of progressiveness in access to higher education. In the face of this censorship, he proposed that the government part of a false premise that " consists in considering that the universities use the resources of the budget to attend higher education to meet the costs of the necessary to care for health services to the detriment of the specific purpose for which they were created ".

The Legislative Assembly considers that, in contrast to this position, it is necessary to clarify the regulation applicable to the financial management of the resources of the University Health Systems. He specifically stated the following:

" (...) in the separate transcribed in this same document from the background of Act 647 of 2001, can be seen clearly com the above mentioned law The financial management of the health resources of the University Health Systems establishes that the system will be administered by the University itself that will organize it and will be financed with the contributions that are established in the terms and within the maximum limits provided for in the first paragraph of Article 204 of the 100 Act of 1993.

subhead] The universities, despite the principle of university autonomy, regarding the administration of the financial resources of the university health systems, must be in accordance with the mandates of the href="ley_0647_2001.html#1"> 647 of 2001 and 100 of 1993 ".

4. Finally, in view of the inconvenience raised, the Congress insisted that the current rules validate the existence of the University Health Systems and refute the possible violation of the principle of equality. In addition, he emphasized the information provided by the different universities, where it is proven that these systems maintain the financial balance, register reserve funds, and handle high cost policies that they negotiate jointly. The relationship of universities contained in the document is as follows:

" 1. University of the Valley: Account with 6,997 affiliates. Financially they perceive a balance, which does not allow them to conclude that this population tends to destabilize their system, because with these ages they have found that it is spent in the same proportion as the contributions are received. At the moment, the additional contribution for users of 1.5% of the Income Base Income is increasing.

It is to be noted that the University of Valle collects 2.5% more than the compulsory health contribution, of which 2% is contributed by the University and the remaining 0.5% by the contributors.

2. University of Cauca: Account with 2,861 members, A (sic) despite the economic situation and the degree of sinister, consider that the System would be affected with the departure of these pensioners, since the proportion of pensioners for the ISS increase each year and, in so far as they are required to withdraw from the system at an advanced age, the membership of young people will also be discouraged.

3. University of Cartagena: Account with 2,979 affiliates. They calculate that 36 people will leave annually, which is why they consider the modification to the Law 647 of 2001 to be relevant, taking into account that with this population there is a balance between income and expenditures.

4. Universidad Industrial de Santander: It has 3,153 members. The UIS Forecast Fund, like the University of Valle, raises an additional percentage of the law for health care, this is 2% by the members, which has allowed them to count on reserves. With a projection to 2011, the study shows a surplus in investments, which is why it is concluded that the Forecast Fund has a wealth of wealth, which would not be undermined by the population of the city. which is now forced to continue affiliate in the EOS of Social Security.

5. National University: Account with 19,500 affiliates. The situation of the National University differs from the other universities, since based on the Superior Agreements, the National University continued to penalize its employees and employees. Additionally, the Agreement that creates Unisalud does not include the affiliation of pensioners to other administrators.

However, the National University of the future may be affected, as it will no longer have members of the University itself, which is why it considers the bill to be appropriate, as long as it does not present modifications. later.

6. University of Antioquia: Account with 8,300 affiliates. In spite of the lack of transfer of Social Security resources by more than 1,500 pensioners to the ISS to support the continuity of service delivery, as well as the financial study on the impact of this population on the system, which is " This population generates an annual gain of one billion pesos in the University of Health System. Although in the future it will be a more sinister population, the study carried out results in a balance, which allows us to conclude that they would not generate losses, simply a different proportion between income and expenditure.

7. University of Narino. It has 1,200 affiliates. At present it does not record the problems with which the health systems of the other universities count and records that it would be very important to modify the law because it gives reliability to the affiliation to the University System of the new employees.

8. University of the Atlantic. It has 3,780 affiliates, today they register a reserve fund and high cost policy.

9. UPTC. It has 1,613 affiliates and has a reserve fund for high cost pathologies and additionally with high cost policy.

10. University of Córdoba. It has 2,455 affiliates. "

Under such conditions, the Legislative Assembly concluded that the bill is neither inconvenient nor contrary to the principles of the General System of Social Security in Health.

VI. CITIZEN INTERVENTION

In order to guarantee citizen participation, the process was set on the list so that those who wished to intervene could expose their appreciation to this Corporation. The following citizens were presented in the following term:

1. Dr. Alberto Uribe Correa, acting as legal representative of the University of Antioquia, in two writings based in this Corporation on 4 and 8 June 2010, requests that the presidential objections be declared unfounded. by unconstitutionality of the bill and, consequently, requires that it be declared to be exequable. Supports your request in the following arguments:

First, it indicates that retired people are actively involved in university life and that from the General Statute of the University of Antioquia, their value is recognized for the development of different university activities. In this scenario, he affirms that the educational institution maintains a link with them, which becomes effective, among others, "(...) with affiliation to the University Health System". It states that this allows pensioners to continue to enjoy the same health service delivery scheme, guaranteeing efficient and high quality care.

considers the intervener to be in breach of the principle of free choice and the "... legitimate expectation to continue to enjoy a condition already recognized by law", when a person who comes enjoying the services of the university system of health to which, against its will, it is transferred to the general system of health.

Manifest that the presidential objection founded on the violation of the principle of equality is not valid, since the legislator can design an exceptional health regime for the universities based on the general clause of their competence. Furthermore, this situation cannot be considered unconstitutional if the guidelines made by the Constitutional Court in the C-1435 2000 and C-045 Sentences of 2001 are taken into account. He explains that the principles governing both systems and their basic benefits are the same. Finally, it indicates that " the rule stipulated in the bill does not create unequal treatment of people who are being treated in the same way; on the contrary, it recognizes the legal difference already established and allows it to be maintained. for the benefit of the universities ' pension ... ".

Similarly, it considers that it is unfounded "the assertion that the accused rule violates the principle of progressiveness in the coverage of higher education ...", taking into account that universities are not possible to change the allocation of the resources incorporated from the General Budget of the Nation and the territorial entities, in accordance with the provisions of Article 86 of Law 30 of 1992. It concludes that " ... the university system of health, is administered in a separate fund from which it is used to cover the costs of operation and investment, in this way it is ensured that the specific destination of the contributions in health, be maintained ".

2. On the other hand, the citizens Fabian de Jesus Espinosa Cano and José Alveiro Betancur Diossa, as linked to the University of Antioquia's University Health System, in writings based on June 8, 2010 at the General Secretariat of this Corporation, present their considerations regarding the presidential objection to the bill, for which article 2or Law 647 of 2001 is amended.

In their interventions, they present the excellent services they have received, together with their family, in their capacity as members and beneficiaries of the university health system. They warn that this situation would be affected if they had to give up that status because of the fact that they began to receive their pension allowance from the General Pension System. They argue that this would prevent the use of the "right to free choice." Likewise, they manifest that this situation would hurt them financially, considering that in the "university program" are not required to pay moderating fees or copays.

VII. CONCEPT OF THE NATION ' S ATTORNEY GENERAL

The Attorney General of the Nation, by trade of June 2, 2010, yields his concept in accordance with the provisions of the Political Constitution and article 32 of Decree 2067 of 1991, and in the asks this Corporation to declare unfounded the objections raised by the Executive against the bill, by which article 2or Act 647 of 2001 is, having in The following considerations count:

First, the Public Ministry finds that the government did not present any evidence capable of " a minimum doubt about the violation of the principle of progressiveness in education, because of the modification of the law. 647 '. Consequently, he warns that " ... the alleged violation of Article 69 of the Constitution does not constitute an autonomous position, but an appreciation of the Government, which seeks to strengthen the position of the "The principal, concerning the violation, by the legislator, of the right to equality of pensioners of the general pension system (...)".

Then brings up the C-1435 2000 and C-045 Sentences of 2001, by which the Constitutional Court declared the special system health regime to be exequible. It is a question of the constitutional principle of university autonomy and its limits, defined by the same Court. Similarly, it mentions the 1996 judgment C-263 and infers that "The existence of a special health regime, of a university nature, may imply a difference in treatment between persons, according to In fact, they are different, within the scope laid down by the Constitution and by the case-law ...".

He adds that the bill is intended to make factors such as the system with which the public servant linked to an official university is penalized, does not have an impact on his affiliation with the special health regime, which is what is sought " ... to ensure the principle of continuity of the health service, to those workers who at the time of the pension with the regime of their university or with the general, wish to maintain the link with their physician, with the treatments in course, with the trust placed in a health care entity, to which they have been affiliated in a way voluntary ".

Under such conditions, the following concludes: "The principle of solidarity, continuity and stability in the health service, of a vulnerable population, as is the third age, as well as the principle-right of equality, they are protected by the bill, by maintaining the homogeneity between those linked to a special health regime, in this case: the official university, regardless of the pension system imposed on them ... ".

VIII. CONSIDERATIONS AND FUNDAMENTALS

1. Control competence and scope

Pursuant to the provisions of Articles 167 and 241 (numeral 8) of the Constitution, the Court is competent to decide definitively on the constitutionality of the rules objected to by the National Government, in respect of which the Congress insists on its approval. The control exercised by this Corporation is restricted to examining (i) the fulfillment of the term with which the Government counts to object to a bill, (ii) the formal processing of insistence in the chambers and (iii) the material analysis of the objections made_[20], if there is a place.

2. Legal issues and analysis methodology

Before addressing a substantive examination of objections it is necessary to determine whether the budgets for this purpose are met. Consequently, the Court will begin by analyzing what these requirements are and whether they meet in the subject under control, specifically regarding the opportunity in their formulation and the insistence of the Congress of the Republic.

Subsequently, only in the event that the Court finds that the requirements are met, will proceed to the material analysis of the case and will study whether or not the objectionable rule does not know the right to equality, principles of solidarity and sustainability of the Social Security System in Health, the principle of progressiveness of the System of Higher Education or the Unification of the Social Security System defined in the Law 100 of 1993.

3. Procedural requirements for the substantive examination of the objections of unconstitutionality formulated by the Government

For the Court to be able to address a substantive examination of the objections of unconstitutionality it is necessary to examine two questions in advance: (i) if the government has raised objections in a timely manner and (ii) if the Congress effectively dismissed them and insisted on the approval of the project.

3.1 The first requirement is provided for in Article 166 of the Constitution, in accordance with Article 198 of Law 5 of 1992 (Regulation of the Congress). According to these rules, the National Government has six (6) days to return with objections any bill that does not consist of more than twenty articles, ten (10) days when the project is twenty-one to fifty articles, and twenty (20) days when the articles are more than fifty; if not in that time the President is obliged to sanction him and enact the corresponding law_[21].

Article 166 of the Political Charter also states that if, at the time of filing objections, Congress is in recess, the President shall publish them within that period. To this end, it is necessary to take into account the provisions of article 138 of the Constitution, according to which the Congress, in its own right, will meet in ordinary sessions for two periods per year. which will constitute a single legislature: the first session begins on July 20 and ends on December 16, and the second begins on March 16 and concludes on the following June 20_[22].

3.2 The second requirement for the Court to address the substantive study of objections is the insistence of the Congress on the approval of the bill. In this regard, Article 167 of the Charter states that any draft objectionable will return to the legislative chambers for the second debate, and warns that when the government objects to unconstitutionality, "if the cameras insist," the matter will be referred to the Court to decide on its exequability.

The case law has explained that the insistence of the legislative chambers, which in any case must have a minimum charge of argumentation_[23], constitutes " the starting point for it to decide on the exequability or inexilibility of the object project "_[24]. Moreover, it has considered such a requirement as the "true procedural budget of constitutional control"_[25]. Likewise, he pointed out that to insist on the approval of a project the Chambers cannot exceed the deadline of two legislatures, the first being the one " that is taking place at the time the respective one is returned project "_[26].

In sum, when one of the previously annotated procedural requirements (timely presentation by the government and insistence in Congress ' time) is not met, the Court should refrain from issuing a substantive statement regarding the _[27]insistences. Enter the Room to review compliance with these requirements.

4. Government objections and opportunity in their formulation

4.1 In the case under review, the final text of Bill No. 103 of 2008 House and 227 of 2008 Senate, by which article 2or Law 647 of 2001 is, is composed of of three (3) articles. Therefore, the term to return it with objections was six (6) working days, counted from the day following the receipt of the same by the National Government.

According to the evidence in the file, the project was received at the Presidency of the Republic on the 18th (18th) January 2010_[28], so that the term for objections was due on the twenty-sixth day (26) of January 2010. By that time Congress was in recess, during the same period the government had to make the publication of the objections raised.

4.2 The Court notes that the requirements laid down in Article 166 of the Constitution were duly addressed. In fact, the objections to Article 1 (partial) of the project were published in the Official Journal 47,603 of 25 January 2010 (pages 12 to 15)_[29], that is, within the six (6) days required in The Political Charter, the date on which they were also based in the Congress of the Republic_[30].

Cleared this first issue, to address a substantive analysis remains to be established the conditions by which each of the Chambers dismissed the Government's objections and insisted on the approval of the project.

5. Processing Objections in the Congress of the Republic

5.1 Objection Report

Received the presidential objections in the Congress of the Republic, the Senate and House Directives appointed an Accidental Commission to study them; after analyzing the arguments of the Executive, each of them presented the same Report to be given to each of the Plenary.

5.1.1 Republic Senate

- Presentation of the Report. Congressmen Dilian Francisca Toro Torres (Senator), Amanda Ricardo de Paez (Representative to the Chamber), German Antonio Aguirre Munoz (Senator) and Jaime Restrepo Cuartas (Representative to the Chamber), presented on 11 May 2010, the 2or Law 647 of 2001 is amended.

-Publication. The report dismissing presidential objections was published in the Congressional Gazette number 157 of Tuesday, April 27, 2010_[31].

-Previous announcement. The prior announcement for the vote on the objections report was held on Tuesday, May 4, 2010, as stated in the 35th act of that date, published in the Congress Gazette issue of the 1st June 2010_[32]. It reads:

" On the instructions of the Presidency and in accordance with Legislative Act 01 of 2003, the Secretariat announces the projects that will be discussed and approved in the next session.

to debate and vote on the day of, (sic) at the next session:

Objection

(...)

No. 227 of 2008 Senate, 103 of 2008 Chamber, for which article 2of Law 647 of 2001 is amended. "

- The approval of the report by 56 Senators, of the 57 present, took place on Tuesday, May 11, 2010, as stated in the Act number 36 of this date, published in the Gazette of the Congress number 281 of June 1, 2010_[33]. As stated in Gazette, the Senate Presidency previously indicated to the Secretariat to continue with the report of objections formulated to the draft law of the reference and, under such conditions, the He used the word to Senator Dilian Francisca Toro Torres, who was heard about the background of the report.

5.1.2 House of Representatives

The announcement prior to the vote on the reference bill's objections report was held at the House of Representatives Plenary on May 4, 2010, as stated in the Act No. 238 of that date, published in the i_aj">Congress Gazette number 299 of June 4, 2010_[34], as follows:

"The General Secretariat reports, Dr. Flor Marina Daza:

Mr. President, the following projects are announced for the Plenary Session on Tuesday, May 11, or for the next session in which bills or legislative acts are debated, according to the Legislative Act 01 July 3, 2003, in your article 8º.

(...)

objection

(...)

Bill No. 103 of 2008 House, 227 of 2008 Senate, for which article 2or Law 647 of 2001 is amended. "

The vote and approval of the objection report was conducted at the May 11, 2010, session, as stated in Act 239, published in the Congress Gazette number 344 on Tuesday, June 15, 2010. 2010_[35], which highlights the following:

"Assistant Secretary General, Dr. Flor Marina Daza Ramirez:

Presidential Objections Report.

Bill No. 103 of 2008 House, 227 of 2008 Senate, for which article 2of Law 647 of 2001 is amended.

(...)

To be submitted for discussion and approval of the Senate and House Plenaries, the members of this Commission have decided in the face of the Presidential objections to Bill No. 103 of 2008 House, 227 of 2008 Senate, by which Article 2of Law 647 of 2010 is amended, the following.

We insist on the exequibility of the bill, we reject the objections for inconvenience to the bill.

(...)

Mr President, the objections report has been read. Please put them into consideration.

of the session by the Presidency, Dr. James Britto Pelaez:

In consideration of the Presidential objections of Bill No. 103 of 2008, in reference. The discussion opens. The discussion continues. Warning to be closed. It closes. Madam Secretary, please open the register.

(...)

of the session by the Presidency, Dr. James Britto Pelaez:

Madam Secretary, please close the register and announce the result of the vote, including the Parliamentary (...) Doctor Carmelo Perez (...) And Representative Faber Giraldo (...)

Secretary General, Dr. Flor Marina Daza Ramirez:

(...)

Yes, Mr. President. The record is closed with the following result: Yes, 91. For the No, 0.

Mr. President, the Presidential objections report to Bill 103 of 2008 House, 227 of 2008 Senate, for which the article 2of Law 647 of 2008 has been amended, has been approved. 2001".

-Finally, the President of the Congress of the Republic referred to the Constitutional Court the draft of the reference, on May 25, 2010, for the Corporation to decide on the exequability of the article objected to.

5.2 For the Court, the procedure of the Bill number 103 of 2008 Chamber, 227 of 2008 Senate, for which the article 2of Law 647 of 2001 is , is adjusted to the provisions of the Article 167 of the Political Constitution, for the purpose of studying the presidential objections was appointed an Accidental Commission made up of members of both legislative cells, which He gave a report that was approved by the Senate and House plenary.

Likewise, in compliance with the provisions of Article 79-4 of the 5th Act of 1992-the Rules of Procedure of the Congress-, this report was included in the Order of the Day of the Plenary Session of the Chambers of Congress. was submitted to a vote in a different session than the one previously announced, as provided for in Article 160 2) of the Constitution, which was introduced by the article 8or Legislative Act number 1, 2003.

Verified the passage of the bill will examine in depth the objections raised by the Executive.

6. Delimiting the subject matter of analysis

6.1 According to repeated case-law, 36, the Court's examination of the provisions objected to by the President of the Republic, at the insistence of the Congress, for infringing the Political Constitution, is restricted to the rules at issue, the charges formulated by the objector and the arguments put forward by the Congress to justify their insistence, which are those that limit the scope of the constitutional res judicata.

In the present case, the objections to the unconstitutionality proposed by the Government do not relate to the whole of the bill, but to a paragraph of one of its provisions, which is why the Court's examination will be limited to the text. In the light of the objections raised by the executive branch and the arguments put forward by the Congress to insist on the sanction of the bill.

6.2 Thus, the Chamber considers that the objections of the Executive Branch raise the following legal problems: the extension of the University Health System to the people who are being penalized by working for the institution of Higher education, does not know the right to equality of other retirees, and affects the financial sustainability, principles of universality, solidarity and effectiveness of the General System of Social Security in Health?; or does the principle of the progressive development of higher education, given that the resources of this service will be allocated to the health of the pensioners of the public universities?

order to answer these questions, the Court will make a preliminary and brief reference to the normative guidelines applicable to the creation of the University Health System and will establish the transcendence that the proposed law has on the same; it will then address each of the problems, emphasizing the 2000 Judgment C-1435 , cited in the report that rejected the objections, in which several of the censuses raised by the executive when this health scheme was created.

Now, as far as the objection raised in relation to the unawareness of the unification of the various benefits attached to the General System of Social Security is concerned, the Court will not rule on it taking into account that This is a censorship for inconvenience and not for unconstitutionality37.

7. Legislative background to the creation of the University Health System

The proposed bill extends the beneficiaries of the University of Health Systems to all employees who, finding themselves affiliated with this regime, acquire the right to the pension with the University or with the General System of Pensions. As outlined in the report of the Accidental Commission, which rejected the presidential objections, prior to addressing each of the problems raised, it is necessary to relate the regulatory background that allowed the creation of the Health System.

Article 57 of Law 30 of 1992_[38] regulates the legal nature of state universities and, by virtue of this, establishes the conditions for the exercise of their autonomy. The original third indent of that rule determined the areas attached to your special scheme, as follows:

" The special character of the regime of state or official universities will comprise the organization and choice of directives, teaching and administrative staff, the system of state or official universities, the financial regime and the regime for procurement and tax control, in accordance with this law ".

Later, by Law 647 of 2001_[39], that paragraph was extended, adding as a power attached to the special university regime the possibility of organizing "own health social security "_[40]. In addition, this provision introduced a paragraph in which the minimum parameters to be met for the regulation of such a system were specified. These are recorded in article 2or Act 647 as follows:

" Article 2or. Add the following paragraph to Article 57 of Law 30 of 1992:

" Paragraph. The health social security system of this article will be governed by the following basic rules:

a) Organization, direction, and operation. It will be organized by the University as a specialized dependency of the University, with the structure of direction and operation that will also be established for the effect. However, the universities will be able to abstain from organizing it, so that their administrative and teaching servers and their pensioners or retirees freely choose their affiliation to the health-promoting entities provided by the Law 100 of 1993;

b) Administration and financing. The system shall be administered by the University itself which organizes it and shall be financed by the contributions to be laid down in the terms and within the ceilings referred to in Article 204 of the 100 Act of 1993. The system may provide health services directly and/or engage them with other health service providers;

c) Affiliates. Only members of the academic staff, employees and employees, and pensioners and retirees of the respective University may be affiliated with the academic staff. The principle of free affiliation will be guaranteed and membership will be considered equivalent for the purposes of the transit of the general system of the Law 100 of 1993 to the own system of the universities or vice versa, without concurrent affiliations are allowed;

d) Payees and benefits plan. The essential content provided for in Chapter III of the 1993 Act 100 shall be taken into account;

e) Solidarity support. The systems will make the solidarity contribution that is dealt with in Article 204 of the Act 100 of 1993 " (negrilla out of original text).

Under these conditions, the proposed bill amends the literal "c)" of article 2º of Law 647 of 2001, expanding the set of people who can benefit from the University Health System. In accordance with the new precept contained in the project, the special health system would also cover any person who is linked to such a system obtain the right to the pension, regardless of whether he is retired from the respective university or of the General System of Pensions. The following, duly underlined, is the section objected by the government:

"Item 1o. Modify the literal c) of article 2º of Law 647 of 2001, which will remain so:

c) Affiliates. Only members of the academic staff, employees and workers of the respective university be able to be affiliated with the university system and persons who are affiliated with the University System of Health and acquire the right to the Pension with the same University or with the General Pension System".

8. Objections to the violation of the right to equality. Impact of the sustainability and solidarity of the General Health System as a result of the creation of the University Health System. C-1435 and 2000 C-045 statements.

As referred to in the report which rejected the objections raised by the government against the draft law of the reference, through Judgment C-1435 of 2000 this Corporation studied the objections The president, who at the time was against the creation of the University Health System. At that time, the Government censured the draft law because, in its concept, (i) the creation of this special system violated material equality and constituted discriminatory treatment, since it deviated from the scheme adopted for ' all ( ) the unconstitutionality of the project in the contributions it would no longer receive from the Fosyga, was contrary to the principles of solidarity, efficiency, and universality_[41].

In response, such providence addressed the principle of university autonomy, which he defined as follows: " an institutional guarantee that seeks to legitimize the ability to self-regulate and self-manage the official and private institutions that have been entrusted with the provision of the public service of higher education (...) taking into account the legal philosophy that protects the principle of university autonomy, the Court has defined its scope and content from two major fields of action that facilitate the material realization of its objectives. (1) philosophical self-regulation, which operates within the framework of freedom of This is the first time that the institution has been adopted by the institution in order to transmit knowledge, and (2) administrative self-determination, which is basically aimed at regulating the internal organization of the institutions. educational".

Subsequently, the judgment detailed what the limits applicable to such a principle are_[42] and clarified that the faculty "to design the social security systems in health has been exclusively attributed to the The legislator who, on the pretext of developing the principle of academic autonomy, cannot delegate it to entities of a purely administrative nature. He added:

"In support of the above, based on a systematic interpretation of the Charter, in particular of its articles 1or, 2or, 56, 150-23, 365, 367, 368, 369 and 370, for the Court it is evident that, in general, the constitutional attribution to regulate everything concerning the public services it is exclusive to the legislator to whom it is responsible-in accordance with its settled case-law to establish those basic normative criteria relating to: " the nature, extent and coverage of the service, its character as essential or not, the subjects (a) the conditions for ensuring regularity, permanence, constancy, quality and efficiency in their delivery, the relations with users, in relation to their duties, rights, the regime of their protection and their forms of participation in the management and supervision of the undertakings they provide the service, the tariff regime, and the manner in which the State exercises control, inspection and surveillance to ensure its efficient delivery (articles 1or, 2or, 56, 150-23, 365, 367, 368, 369 and 370 C.P.) "_[43].

Then, there is no doubt that under the current constitutional framework, the legislator is the call to design the legal system of social security in health, with absolute and total subjection to the higher principles of efficiency, universality and solidarity, through which the political objectives of the so-called Social State are sought, thus contributing to a real and effective solution to the unmet needs of society and, in particular, of those sectors of the population whose precarious economic conditions prevent them from assuming by their own means the costs of health care service".

At that time, the Court considered that such a bill had overflowed the scope of university autonomy, to the extent that "proceeded to legalize the functional competence assigned by the articles 48, 49 , and 150-23 of the Constitution Policy". For this reason he stated that the same was 'inexequable', he proceeded to return it to the Congress to remedy the vice_[44] and immediately warned that the creation of special regimes, v gr. The University Health System, if it is a legitimate power based on the legislator's head. On the particular he said the following:

"Note, moreover, that the irregularity attributed to the bill lies exclusively in the fact that the public universities have delegated the legislative competence to regulate their own security systems. Social health. In no case-and for that aspect the Court departs from the governmental criterion-this decision seeks to compromise the faculty that assists the Congress of the Republic so that, in the exercise of the freedom of legislative configuration, it will be able to various social security schemes and, as a result, derogate from the scope of the comprehensive system which was created by the issuance of the 1993 Law 100 .

In fact, the Constitutional Court itself has been endorsing some of the exclusions that are provided for in Article 279 of the aforementioned law, as in fact occurred in the case of the Members of the Military Forces and the National Police_[45], members of the National Fund for Social Benefits of the Magisterium_[46] and the public employees and pensioners of the Colombian oil company (Ecopetrol)_[47]. This Court held that, without violating the Political Constitution, it is possible that by law, special regimes will be designed for different groups of workers, as long as they are oriented towards the protection of their fundamental and social rights and are not intended to create discriminatory or less favourable treatment in relation to the rights, benefits and benefits recognised to staff covered by the general system contained in The 100. Specifically, when defining aspects related to special pension systems, the Court stated:

" The Political Charter does not establish differentiations within the universe of pensioners. On the contrary, it enshrines the special protection of pensions and of persons of the elderly. However, the legislator may design special schemes for a particular group of pensioners, provided that such schemes are directed to the protection of constitutionally protected property or rights and are not discriminatory. This is the case for the establishment of a special pension scheme for the protection of rights acquired by a particular sector of workers.

"..."

" ... the Court considers that the establishment of special pension schemes, such as those referred to in Article 279 of Law 100, which guarantee in relation to the scheme In the case of a pension, a level of protection equal to or higher, they are in accordance with the Constitution, as the differentiated treatment far from being discriminatory favors the workers to whom it covers. But if it is determined that by allowing special regimes to be effective, an inequitable and less favourable treatment is perpetuated for a particular group of workers, compared to that which is given to the generality of the sector, and that the treatment Disparate is not reasonable, discriminatory treatment would be set up in open contradiction with Article 13 of the Charter. " (Statement C-461 of 1995 (...) " (Negrilla and underscore out of original text).

Finally, this Corporation warned that in order to guarantee the sustainability of the General Health System, as well as to safeguard its solidarity, the legislator should provide for the means to ensure that, in the terms of the article 204 of Act 100 of 1993, part of the contributions of the University Health System will be allocated to the solidarity sub-account of the Fosyga, " for the purpose of these educational centers also contributing to the financing of the beneficiaries of the subsidized Social Security System.

Once the legislative process was rebuilt, the Court studied the draft law through Judgment C-045 of 2001 and stated that the requirements stated in the C- 1435 2000 in relation to the objections submitted by the Government. On the particular, he stated the following:

" 8. Confronting the above indications in the 2000 Judgment C-1435 , with the content of the draft law in its new version, the Court finds that the same, although minimal, complies with the requirements formulated to the legislator in accordance with the Constitution. In fact, under Article 2o of the new bill, the Congress adds to Article 57 of Law 30 of 1992 with a paragraph containing the basic rules of the Social Security System in Health that may organize state or official universities. This paragraph includes rules on the organization, management and operation of the new system, as well as on its administration and financing, the latter aspect of which refers to what is provided for in Law 100 1993. Similarly, it notes who will be able to appear as affiliates and the principle of free affiliation is guaranteed. With regard to the regulation on beneficiaries and the plan of benefits, the new paragraph also refers to the provisions of the Law 100 of 1993, a reference that is also made regarding the contributions of solidarity. As for the health service providers, the new legal regulation indicates that health services may be provided directly by the universities that decide to organize their own regime, or that they may hire them. with other institutions providing such services".

As was observed, in that providence the objection concerning the right to equality was based on the discrimination that would arise from the creation of a Health System in public universities, compared to the regime that others have. Member of the General System of Social Security in Health. The Court gave this position the power of the legislator to regulate this scheme and to create special orders for certain workers, taking into account the specific conditions of their employment. That does, he warned, that congressional competition is limited to the definition of discriminatory practices or the decrease in guarantees laid down in the 1993 100 Act. This thesis has been reiterated by this Corporation, whenever it has analyzed the creation of special parameters of Social Security; in Judgment C-928 of 2006 it argued the following:

" Insense, in the matter of social security this Corporation has estimated that a regulatory regime of the same is a complex normative system, in which the various partial norms make sense for their relationship with the global regulatory set. Each special regime is then a universe of its own. Hence, as was laid down in Judgment C-369 of 2004, "in principle, it is not feasible to compare isolated aspects of a special pension or health system and the General Security System in isolation." Social, as every aspect can have a partially different meaning in each regime. Thus, an apparent disadvantage in a specific point of the special regime in relation to the General System of Social Security can be broadly compensated for by higher benefits provided for by this special regime in other aspects." Another can be said of the special regime for the liquidation and payment of the cesanties for the teachers ' case.

" (...) SObre the particular, the Court in Judgment C-080 of 1999 considered the following:

" Thus, it is possible to conclude that there is discrimination (i) if the benefit is separable and (ii) the law provides for a lower benefit for the special scheme, without (iii) another higher benefit appearing in that scheme I would like to comment on the inequality in relation to the General System of Social Security. However, by virtue of the speciality of each social security scheme, in principle it is applicable in its entirety to the user, for which the Court considers that these requirements must be met in a manifest manner so that it can be concluded that there is a violation of equality. Therefore, (i) the autonomy and separability of the benefit must be very clear, (ii) the inferiority of the special regime must be indubitable and (iii) the lack of compensation must be evident "_[48].

Now the Government objects to the unconstitutional Bill 103 of 2008 House and 227 of 2008 Senate, considering that it does not know the right to equality in addition to generating discriminatory treatment among people who retire are affiliated with the University Health System, who will be able to choose freely between remaining in this one or joining the General, and the other pensioners, who will have to remain compulsorily in the general system.

As observed, following the aforementioned case-law sub-rules and, above all, the exequability of the creation of the University Health System, the extension of the university's affiliate as a whole does not constitute a violation of the principle of equality and, less, a treatment which can be regarded as discriminatory between the set of pensioners. In fact, the draft law does not include a reduction in basic loan benefits, nor is it an unjustified or prohibited differentiation by the Constitution. On the contrary, taking into account the implementation of the new system from Law 647 of 2001 and in application of the principle of continuity of service, it is reasonable that the legislator has extended the benefits of the regime to those who are penalized, regardless of whether they do so with the University or with the pension scheme established in the Law 100 of 1993.

In the same way, this Chamber considers that the bill is not contrary to the solidarity, unification or efficiency of the system. This, taking into account the parameters of Judgment C-1435 of 2000 and the paragraph of Article 57 of Law 30 of 1993, specifically its literal e)_[49] (added by Law 647 2000). Under these conditions, the functioning of the University Health System must guarantee the payment of the respective contributions to the Fosyga to the financing of the subsidized regime. To this extent, despite their specialty, these Systems are obliged to help sustain the provision of services in favour of those who are not in the contributory scheme, i.e. for the poorest people. Thus, provided that any University System ensures the transfer of the corresponding resources to ensure the functioning of the solidarity sub-account, based on the legally intended percentage of the contributions of each and every one of its affiliates, in the terms of Article 204 of Law 100 of 1993, the Chamber considers that the principles of the General System of Social Security in Health are not affected.

Finally, of none of the charges or arguments presented by the Government, including those referred to in Article 48 Superior, the Court inferred that the draft law create a new pension scheme. On the contrary, from what the executive said, the nature of the proposed bill is only to modify one of the components of the University Health System, which can be freely chosen by those who acquire the right to be penalised, without the involvement of the elements attached to the general pension scheme or any change in the ingredients of the special pension scheme, v. gr., age, time of service, quote weeks, or required capital_[50].

9. The progressive character of higher education.

The Government considers that the allocation of resources for the operation of the University Health Systems does not know the progressive nature of higher education, because the universities will have to use the resources assigned to academic activities to ensure the functioning of the academic activities. One of the interveners clarified that this thesis is not true, in so far as these institutions, by legal mandate, allocate their resources, starting from a different fund, in a specific way to the development of university activities; The Attorney General considered that the latter did not constitute an autonomous position, since it had not been duly supported by the Executive. Finally, the report that rejected the objections pointed out that the Government does not know that Law 647 of 2001 established what the conditions of funding of the University Health System are, which guarantees that the other missions based on the head of the institutions of higher education are affected.

Under the conditions noted, it is necessary for this Corporation to specify the guidelines with which the constitutional importance of progressiveness in higher education has been defined. Judgment C-931 of 2004 addressed the basis of this figure and its relation to the amount of tax resources allocated for the provision of the service or for the execution of its constitutional objectives, the following way:

" 5.4.2. The Court asks whether the previous constitutional or other rules of the Charter give a mandate to the State to keep up to date the financial resources with which it feeds public universities for the achievement of their constitutional objectives. And while he appreciates that the Charter does not expressly indicate this, in principle the answer is positive by turning to the progressive character that the law, the doctrine and the international treaties that are part of the constitutionality block have recognized him. right of access to higher education. In fact, access to higher education, understood as a social and cultural right, has been recognized by international treaties as a progressive one.

(...)

" 5.4.3. However, the progressive nature of a right implies not only the state commitment to extend the spectrum of actual coverage of the right to the principle of universality, but also to increase the number and content of the prerogatives. that that right confers on its holders. But above all, it carries the prima facie ban on setbacks. This has been understood by this Corporation in previous rulings, especially in the one set out in Judgment C-038 2004, in which it refers to the progressive nature of other rights such as health and guarantees. It has insisted on the legal impossibility that in principle is presented in order to reduce the scope of coverage and the prerogatives of progressive development rights. Thus, while the progressive nature of social rights is not absolute, its restriction requires adequate justification for the pursuit of priority objectives of a constitutional nature, and must respect parameters of reasonableness and proportionality.

"5.4.4. For the Court, there is certainly a relationship between the amount of the tax resources that go to the public service of higher education, and the possibility of maintaining without setbacks or progressively extending the right of access to this education. and to improve service delivery. Furthermore, it notes that the legislator himself has been aware of this reality, for which reason, in order to comply with the commitment to advance the effectiveness of this right, he has established a provision which prevents public resources from being intended for that purpose to be reduced or lost value. In fact, Article 86 of Law 30 of 1992, "for which the public service of higher education is organized" is of the following tenor:

" Article 86. The budgets of national, departmental and municipal universities will be made up of contributions from the national budget for operation and investment, due to the contributions of the local authorities, to the resources and income of each institution.

" State or official universities will receive annually contributions from national budgets and territorial entities, which will always mean an increase in constant pesos, based on the budgets of the Revenue and expenditure, in force as from 1993 '.

"The Court has explained_[51] that the literal tenor of Article 86 of Law 30 of 1992 may be colegative as the budget of public universities, as a feature of its constitutional autonomy, independent of the national budget or that of the territorial entities, but which receives contributions either from that or from these_[52] Regarding the contributions that the budgets of the universities receive from the Nation, they are destined for operation or investment as the wording of the norm is clear When it says: "The budgets of national, departmental and municipal universities will be made up of contributions from the national budget for operation and investment."

"Article 86 trascrito contains a formula that seeks to achieve such contributions from the national prepost, and also those that come from the budgets of the territorial entities, maintain their constant value, so it orders to take each year, as a basis for determining the amount of the respective contributions, the corresponding budgets of the previous year, and bring them to the present value_[53].

Indeed, the principle of progressiveness does have a close relationship with the amount of fiscal resources allocated for the fulfillment of constitutional purposes. However, as stated by the Government, this Corporation does not manage to infer the involvement of the service of higher education from the provisions of the proposed law. On the contrary, as one of the interveners pointed out, the Court points out that under Article 86 of Law 30 of 1992, the resources for the operation and investment of the institutions of the Higher education are properly separated and, on the other hand, the Law 647 of 2001 provided for specific financing conditions for the benefits derived from the University Health Systems. ensuring that compliance with the constitutional objectives is not affected allocated to such entities. Under these conditions, this objection will also be declared unfounded, so Article 1 of Bill No. 103 of 2008 House-227 of 2008 Senate, for which the article is amended href="ley_0647_2001.html#2"> 2or Act 647 of 2000, will be declared to be exequable, only for the charges raised in the presidential objection analyzed in this judgment.

IX. DECISION

On the merits of the above, the Plena Chamber of the Constitutional Court, on behalf of the people and by mandate of the Constitution,

RESOLVES:

First. DECLARE UNFOUNDED the objections of unconstitutionality formulated by the President of the Republic with respect to the expressions " and people who at the end of their employment relationship are affiliated with the University Health System and acquire the right to the Pension (...) with the General System of Pensions" planned in Article 1 of Bill No. 103 of 2008 House-227 of 2008 Senate, for which article 2or the Law is amended 647 of 2000".

Second. DECLARE EXPRESSION the objectionable expressions of Article 1 of Bill No. 103 of 2008 Chamber, 227 of 2008 Senate, for which article 2or Law 647 of 2000 is amended, only for the charges raised in the presidential objection analyzed in this judgment.

Third. DESE compliance with the provisions of article 167 of the Political Constitution.

Notify, communicate, post and insert into the Constitutional Court Gazette.

The President,

MAURICIO GONZÁLEZ CROW

(absent in Commission).

Maria Victoria Calle Correa, Juan Carlos Henao Perez, Gabriel Eduardo Mendoza Martelo, Jorge Ivan Palacio Palacio, Nilson Pinilla Pinilla, Jorge Ignacio Pretelt Chaljub, Humberto Antonio Sierra Porto, Luis Ernesto Vargas Silva (absent in Commission), Magistrates.

The General Secretariat,

MARTHA VICTORIA SACHICA MENDEZ.

* * *

1	Folio 229.
2	Act 011 of November 4, 2008, published in the Gazette Congress number 073, 2009.
3	Folio 221.
4	Vid. page 48 of the Congress Gazette number 48.
5	Minutes 153 of 25 November 2008, published in Gazette of Congress number 015 of January 30, 2009.
6	Office S.G. 2-3610-08 of November 26, 2008, fl. 218.
7	Folios 191 and 192.
8	The constancy of delivery of this Gazette to the The Commission's senators are in the portfolio of 151.
9	Folios 147 to 149.
10	Folio 130.
11	Folios 116 ss.
12	Folio 111.
13	Folio 76.
14	Folio 74.
15	Gazette number 27, December 15, 2009. Notebook 2, folio 147.
16	Folio 27.
17	Folio 3.
18	This rule has the following: "Article 16. Servers of an entity subject to adaptation which is retired. In the case of persons who were linked on 23 December 1993 to the institution subject to adaptation, who continue to work on it until the end of their employment relationship and who retire with the general pension system, the The object of adaptation will receive from the respective pension manager the contribution corresponding to health, in accordance with the laws and regulations, for the purpose of continuing to provide the service to the pensioners that so decide".
19	Specifically, the Legislative cited a paragraph of the C- 461 from 1995.
20	Constitutional Court, C-statements-849 , 2005, C- 874 from 2005 and C-1183 from 2008, among others.
21	On this point, the case law has explained that the terms provided are refer to full and working days, the computation of which starts from the day following the one in which the project was received for the sanction of rigor. cfr., Constitutional Court, 1995 C-268 Statements, C-380 1995, C-292 1996, C-510 , 1996, C-028 , 1997, C-063 , 2002, and C-068 , 2004, C-433 , 2004, C-856 , 2006, C- 1040 from 2007, C- 315 2008 and C-616 2008, among many others.
22	The rule clarifies that Congress will also meet in extraordinary sessions, by (a) call on the Government and for as long as it has indicated, in which case it can only deal with matters which the Government submits to its consideration, without prejudice to its own political control function, which it may exercise in its entirety time.
23	Constitutional Court, 2002 Sentences C-559 C-1146 2003, among others.
24	Constitutional Court, Statement C-883 , 2007. See also 2008 C-616 and 731 Statements.
25	Idem. See also the C-1183 statement of 2008.
26	cfr., Constitutional Court, C- 069 , 2004, C-433 , 2004, C-985, 2996, and C-482 , 2008.
27	Constitutional Court, C-036 , 1998, C-070 2004, C-500 , 2005, C-883 , 2007, and C-1183 , 2008, among others.
28	Main Notebook, folio 68, notebook 3, folio 64.
29	Notebook 3, Foles 12 to 15.
30	Notebook 3, folios 49 to 63.
31	Notebook 2, folios 107 to 113.
32	Notebook 7, folio 166.
33	Notebook 7, folio 46.
34	Notebook 5, folio 28.
35	Notebook 6, folio 26.
36	C Statements-176, C- 482, C-913, C-914 of 2002; C-1043 of 2000; C-256 of 1997, among others.
37	C-1183 2008 and C-321 2009.
38	By which Education Public Service is organized Top.
39	By which item 3o of the item 57 of Law 30, 1992.
40	With the modification introduced by Law 647, the paragraph was left as follows: " The special character of the regime of state or official universities will include the organization and choice of directives, the teaching and administrative staff, the system of state or official universities, the system financial, the regime of procurement and fiscal control and their own social security in health, according to the present law" (negrilla out of original text).
41	The legal problem that came before that providence was the following: "if the legislator, to the Recognizing the official higher education centers to design their own social security systems in health, the principle of university autonomy was disavowed and, in this way, it disavowed the principles of equality, efficiency, universality and social solidarity".
42	Enlisted the following: "(i) the recognized faculty to the State to regulate and exercise supreme inspection and surveillance of education (C. Article 67), (ii) the jurisdiction conferred on the legislator to issue the general provisions under which the universities may give themselves their directives and be governed by their own statutes (C. Q. article 69), (iii) the legislative configuration faculty to issue the laws that will govern the effective delivery of public services (C. Q. article 150-23) and (iv) respect for the legitimate exercise of fundamental rights (C. P. items 11 and sig.)".
43	C statement-263/96.
44	concretely the failure reads as follows: " Thus, for the Court, the aforementioned bill presents a vice of unconstitutionality that makes it partially inexequable; inexequibility that can be remedied to the extent that the Congress of the Republic, in strict The principles of universality, efficiency and solidarity must be added to the principles of universality, efficiency and solidarity, with a basic regulatory content on the social security system applicable to state universities. In this sense, the law should enshrine those general aspects applicable to the new system such as those related to: (i) its organization, direction and operation; (ii) its administration and financing; (iii) persons called to participate in the quality of affiliates and beneficiaries; (iv) their benefit regime and (v) the health service providers. (...) Consequently, the Bill of Law No. 118 of 1999 House and 236 of 2000 Senate, will be declared partially inexequible for as soon as there is no legal development on the special regime of social security of the universities of the State. Therefore, as provided in Articles 167 of the Political Constitution and 33 of Decree 2067 of 1991, the draft objectionable will be returned to the House of origin so that, hearing the minister of the branch, he redoes and integrates the disposition affected in the terms that are concordant with the opinion of the Court".
45	1996 C-665 statement.
46	1995 C-461 statement.
47	1996 C-173 statement
48	C statement-080/99, repeated failure criteria C-890 , 1999, C-956 , 2001, C-835 , 2002, C-1032 , 2002, and C-941 , 2003.
49	"The Health Social Security system that you are dealing with This article shall be governed by the following basic rules: (...) e) Solidarity. The systems will make the solidarity contribution that is dealt with in Article 204 of Law 100 of 1993. "
50	The ingredients of the Pensional System in Colombia are foreseen in the Article 13 of Law 100 of 1993. For its part, the eighth indent of article 48 of the Constitution, added by Legislative Act 01 of 2005, states: " (...) ".
51	View C-177 Statement 2002.
52	Public universities budget is budget independent But the overall budget of the official universities, which comes from the State, must be included in the General Budget of the Nation. Cf. C-220 statement from 1997.
53	Cf. C-177 statement from 2002.