By NO: 0

The report that rejects presidential objections to the bill has been approved and will be sent back to the honorable Constitutional Court to follow its constitutionality examination.

(...)

Individual Results

Yes (sic)

Not Voted

As of the above factual verification, the Court concludes that the Congress has complied with the order in Auto A-032/12, concerning the subhealing of the legislative procedure, in order to approve the report of objections. Government shall be performed in a nominal and public manner, in strict accordance with the provisions of Article 133 C. P.

Thus, from the study of the legislative procedure, the Court finds that (i) was satisfied with the advertising requirement, to the extent that the report was published in the Congress Gazette prior to the initiation of the debate, both in the Senate of the Republic and in the House of Representatives (article 157, Law 5th of 1992); (ii) the announcement that it deals with the final article 160 C. P., both in the case of the original procedure as in the sub-sanatorium, it was carried out in the previous session in which the discussion and vote of the report was carried out, verifying the vote on the given date of announcement; and (iii) the approval of the objection report has the required constitutional majorities, taking into account the certification by the secretaries-general and the procedure developed during the plenary sessions. This is a matter of course. Furthermore, due to the subsanatorium procedure ordered by the Court, the vote of the representatives and senators was nominal and public, as provided for in Article 133 C. P., as amended by the Article 5or Legislative Act number 1o of 2009.

Consequently, the constitutionality of the legislative process of the approval of the governmental objections is verified, the Chamber of the Fund assumes the study of the background, work that it advances next.

Material review of objections

4. Content of the bill and the particular object object

The bill is aimed at paying homage to the life, work, and intellectual activity of the anti-oquist author Manuel Mejia Vallejo. To this end, various topics are arranged, namely (i) the linking and exaltation by the Nation to the work of the aforementioned writer (article 1o); (ii) the performance of the Festival of Good Things and the Paseo Aire de Tango, both in the city of Medellin, as cultural expressions aimed at fulfilling the aims of the legislative initiative (article 2o); (iii) the declaration of the year 2010-2011 as the Year in Tribute by Manuel Mejía Vallejo (article 3o); (iv) authorization of the use of a percentage of the tax revenues derived from the Procultura Estampilla, Department of Antioquia, for the operation of the activities of the Manuel Mejía Vallejo Foundation and those indicated in Article 2o (article 4o); (iv) the authorization to the Government so that, through the competent authorities, philatelic series will be issued on the writer Mejía Vallejo (article 5o); (v) the task of the Unit Special Administrative Library and the Editorial Fund of the University of Antioquia, to select, collect and publish the work of the writer Mejía Vallejo, as well as Radio Television Nacional de Colombia, for the production of a documentary about it. (Articles 6o and 7o); (vi) the assignment to the Ministry of Culture for the dissemination of the work of the writer Mejía Vallejo, both in the country and abroad, through the appropriation and reallocation of the resources corresponding budget, by the National Government, as well as the subscription of the necessary agreements and contracts at national and territorial level (Articles 8 to 10); and (vii) the creation of the Manuel Mejía Vallejo de Promoción de la Cultura y las Artes (hereinafter the Joint Fund or the Fund), (Article 11).

The government objection is directed against Article 11, which determines the legal nature, scope and functions of the aforementioned Joint Fund. In particular, the rule evidences the following particular aspects:

4.1. The Joint Fund is a special account without legal status, attached to the Ministry of Culture. Its purpose is to provide the necessary resources for the fulfillment of the various activities that the bill regulates, as well as to allow the operation of the Manuel Mejía Vallejo Foundation.

4.2. The provision determines that the resources of the Joint Fund will come from the contributions assigned to it in the general budget of the Nation, the Department of Antioquia and the Municipality of Medellin, as well as investments and donations that they make. natural or legal persons, international cooperation bodies and other income that is legally entitled to receive. Similarly, it is anticipated that the Fund may have other sources of financing, as the National Government has.

4.3. It is determined that the Fund will be under the administration of a Director, who will be a public servant of the Ministry of Culture, appointed by the Minister.

4.4. Finally, it is stated that the contracts to be concluded "in relation to the Fund" shall be governed by the General Staff Regulations of the Public Administration.

5. Government objection content and decision methodology

The government has raised objections against Article 11 of the draft law from two defined criteria. The first according to which the creation of the Joint Fund by the Congress required, in the terms of Articles 150-7 and 154 of the Constitution, the guarantee of the executive branch, as long as it was a modification of the structure of the national administration. This was because the membership of that fund to the Ministry of Culture and its regency by a director appointed by the Minister was a "substantial alteration" of the institutionality of that portfolio.

The second, regarding the unknown article 151 C. P., due to the violation of rules of an organic nature budget, due to the way of financing of the Mixed Fund. To support this accusation, it indicates that according to the provisions of article 30 of the Organic Statute of the Budget (EOP), the special funds are intended to administer resources of the national order. However, the defendant's rule provides that the Fund may acquire resources both from the national budget and from other sources, including from regional and international cooperation. Thus, territorial entities have the power to set up a fund to account for these characteristics, but in any case they will have to do so within their own budgets and subject to constitutional and organic rules, to the the same as the conditions of each territorial entity. In this regard, the Government stresses the need to comply with the provisions of Article 109 EOP.

El Comercio] Congress is opposed to these questions and insists on the constitutionality of the legislative measures adopted. He pointed out that the article objected did not affect the structure of the national administration, but was restricted to pointing out a function of the national administration, in the field of the subjects that were of its own. Argues that according to the provisions of article 63 of Law 397 of 1997 and Decree 1493 of 1998, the Ministry of Culture has the power to participate in mixed funds for cultural promotion, make contributions and conclude agreements. To that extent, the tasks provided for in the defendant's provision are not foreign to the functions of that Ministry.

He adds that the bill had the government's approval in relation to its fiscal impact, so it is not feasible to conclude that the bill would oppose the organic regulations on the matter.

The Attorney General agrees with the government about the unconstitutionality of the article objected to. He warned of the fact that the attachment of the Joint Fund to the Ministry of Culture and, in particular, the allocation of an official of the Ministry of Culture to the Ministry of Culture concerned the structure of the national administration. Thus, the Commission considers that, in the light of the conclusions reached by the legislative chambers, the function imposed on that public servant is far from a mere participation in the joint promotion funds, which is dealt with in Decree 1493 of 2003, but rather is the sole responsibility of an official for specific tasks, which cannot be understood in any way other than a reformulation of the structure of that entity. Therefore, as the forecast did not count on the government guarantee, it becomes inexequable. Finally, the Public Ministry points out that the arguments about the government's acquiescence on the fiscal impact are not of receipt, because they are about a different bill than the one objected by the Executive.

From these budgets and on the basis that according to the provisions of article 167 C. P., this Corporation's scope of competence in the subject of the reference is delimited strictly to the content of governmental objections, the Court must resolve the following legal problems:

5.1. Are articles 150-7 and 154 C. P. not known when issuing a rule creating a Joint Fund, with the legal nature envisaged in the Article 11 of the draft law, attached to the Ministry of Culture, because of the modification of the structure of the national administration without the government guarantee required by the Constitution for this purpose?

5.2. Are the organic budget rules contained in Articles 30 and 109 EOP, when determined by Congress, the provision of a fund is not only integrated by national order resources, but also of a territorial and other nature, such as international cooperation and contributions from natural or legal persons?

In order to account for the objections raised, the Court will assume the following methodology: In the first place and given that there is a consolidated precedent on the matter, the rules that the Court has set for the requirement will be collected. Government endorsement of the initiatives that assign functions to the ministries. Then, because that same precedent has assumed similar problems to the study in this opportunity, within the same collection of rules reference will be made to the requirements that the Constitution and the organic norms have for the the formation of funds counts and their exclusion from the subjects that demand governmental initiative. Finally, on the basis of the rules obtained from the previous levels of analysis, the legal problems described above will be resolved.

The assignment of functions outside the ministry's mission objectives, as modifications to the structure of the national administration. The case of funds counts. Reiteration of case-law

6. Article 150-7 C. P., grants material of law to the determination of the structure of the national administration, and therefore in the Congress the competence to create, to suppress or merge ministries, administrative departments, superintendants, public establishments and other entities of the national order, pointing out their objectives and organic structure. In turn, the same constitutional precept determines that it is also up to the legislator to regulate the creation and operation of regional autonomous corporations within an autonomy regime, as well as to create or authorize the the establishment of industrial and commercial enterprises in the State and mixed-economy companies.

However, this congressional competition operates in a joint manner with the initiative of the Executive Branch. Thus, article 154 C. P., determines that they can only be handed down or reformed on the initiative of the Government, among others, the laws of which the article deals href="policy_constitution_1991_pr004.html#150"> 150-7 mentioned above. This is why those precepts that deal with the modification of the structure of the national administration and that do not have the government support during the legislative process, expressed either at the time of the presentation of the bill or By means of the demonstration of endorsement during the process of discussion and approval of the same, they are contrary to the aforementioned constitutional norm.

7. On several occasions, the Court has assumed the legal problem of verifying whether legal provisions that assign functions to Ministries are part of the government's previously explained reserve of initiative, generally in the field of decision on the constitutionality of projects objected to by the Executive_[25]. Even, this precedent has been used to define topics similar to that of the reference file, about the enforceability of the government guarantee when the The legislator creates special funds and supports them to a particular ministerial portfolio. Therefore, in view of the existence of the jurisprudence in force on the topic analyzed, in this section the Chamber will synthesize the rules that derive from it.

7.1. The legal norms that determine the functions of the ministries, although they are not expressly mentioned in the matters described by the article 150-7 C. P., in any case have an impact on the structure of the national administration. However, this single reason is not enough to conclude that the precept is subject to the government's reserve of initiative, since the constitutional jurisprudence contemplates other factors to consider prior to inferring that it is before a change in the structure of the national administration. These factors, in the terms explained in Judgment C-889 of 2006, relate to (i) the express will of the legislator, (ii) the legal nature assigned, (iii) the autonomy of the enjoyment, (iv) receiving public or private resources; (v) being assigned public functions, as well as the transcendence of such functions. functions on the basic mission of the entity; and (vi) the participation of national authorities in the management bodies.

According to the aforementioned ruling, it is from the application of these criteria that the Court has stated that the government's reserve of initiative is unknown in the cases that the Congress, without having the support of the Executive I_aj"> " (i) has created national order entities_[26], (ii) has modified the nature of a previously created entity_[27]; (iii) has attributed to a ministry new public functions outside the normal scope of its functions_[28]; (iv) has moved a central sector entity to the decentralized or vice versa_[29]; (v) has provided autonomy to a related entity or assigned to any ministry or has modified its membership or linkage_[30]; or (vi) has ordered the disappearance of an entity from the administration central_[31]. For the Court, such provisions modify the structure of the central administration and its constitutionality depends on whether there has been the initiative or the governmental endorsement. "

7.2. However, when it comes to rules that assign responsibilities to the ministries, the factors that are determined to determine whether the government guarantee should have been answered have to do with the existence of the entity created as part of the administration, or the intrinsic relationship between the function assigned by the legislator and the "mission objectives" of the entity.

This was the case elucidated by the Court in Judgment C-063 of 2002, a decision in which it was determined that different precepts that included, modified and suppressed functions of different ministries were This is why they were not creating new entities and, in turn, the tasks assigned were within the objectives of the institutions concerned. To support this position, the plenary raised the following arguments, which because of its nodal importance for the present case, should be transcribed in extensive.

" The legal problem is to establish whether the assignment of functions to the Ministries and Ministers belongs to the scope of the determination of the administrative structure of the national level referred to in the article 150 numeral 7 of the Constitution or if, on the other hand, makes part of the legislator's decisions, not linked to this constitutional precept.

In this respect it is necessary to distinguish the functions of the entities and administrative bodies from the privileges of their authorities, which translates, among other aspects, in the determination of the competent authority to assign them. Thus, while the assignment of functions to public entities and bodies is a matter for the law, the assignment of functions to the authorities of public entities and bodies is carried out by law and by the executive authority_[32]. When it is the legislator that performs the assignment of functions to each other, it attends different rules in relation to the initiative for the presentation of the corresponding bill. On the one hand, there is a reserve of exclusive initiative in favor of the National Government in the events in which the structure of the national administration is modified, which, on the other hand, is not required when it comes to the allocation of funds. legislative functions to the authorities of the entities and bodies of the national order.

According to the above, the laws that assign functions to the ministers do not belong to the field of "determination of the structure of the national administration" (C. P., article 150-7), although they are naturally closely related to it; therefore, the presentation of these types of bills does not require the exclusive initiative of the National Government. Therefore, the presidential objection to the articles that assign functions to the ministers of the office will be declared unfounded.

Additionally, not all assignment of functions to the ministries goes beyond the scope of the national administration structure, as it may well be functions directly related to the mission's mission objectives. In addition, the Ministry of Education and the Ministry of Education, the Ministry of Education, and the Ministry of Education, and the Ministry of Education, In this way, when reviewing the content of the articles objected to it is observed that the functions assigned to the ministries correspond to the own affairs of the respective organism and therefore do not alter the structure of the national administration ".

According to the foregoing, the Chamber concludes that, in general, the legal norms governing the functions of the ministries are not subject to the reserve of government initiative provided for in the article 150-7 C. P. This conclusion is only predicable when (i) the assignment of functions is preceded or incorporates the creation of a new entity or public organic structure, non-existent in the administration's institutional fix; or (ii) the function that the It is not related to the objectives of the respective ministry.

7.3. The above premises have a clear conceptual link with the enforceability of the government's reserve of initiative in respect of the legal provisions creating special funds, a category to which the Joint Fund belongs study.

The criteria for this aspect lie in the differentiation between special funds, also called account funds and entity funds. According to the article 30 EOP, they are special funds in the national order, " ... the income defined in the law for the provision of a specific public service, as well as those belonging to funds without legal status created by the legislator. " It is, in that order of ideas, a classification of national income sui generis, as it differs from the tax and non-tax revenues, that the organic legislator previews in order to grant support (a) the legal framework for the concentration of public resources.

The Court had the opportunity to rule on the legal nature of the special funds in two judgments that have settled lawsuits against certain segments of the article 30 EOP. Thus, in Decision C-009 of 2002, in the face of the accusation that the special funds were unaware of the constitutional prohibition of the fixing of specific destination rents, it was pointed out that " ... the article 358 of the Political Constitution and Articles 11 and 27 of the Organic Statute of the Budget Conform the classification of the budget income, in current income, which includes the tax (direct and indirect taxes) and non-tributaries (fees and fines) and other income, consisting of parafiscal contributions, special funds, capital resources and income of the public establishments of the national order. | | As it is appreciated, according to the Organic Statute of the Budget, the special funds are not parafiscal contributions or current income as they correspond to a category of their own in the classification of the state income. | | In the same way, the special funds constitute one of the exceptions to the principle of box unit_[33], a principle defined as follows in article 16 of Decree 111 of 1996: " With the The collection of all the income and resources of capital will be attended to the timely payment of the appropriations authorized in the General Budget of the Nation ". (...) The defendant standard, Article 30 of Decree 111 of 1996, refers to two of the special fund arrangements, although it does not specify in any of them the type of revenue that the constitute: 1. The income defined in the law for the provision of a specific public service, and 2. Income from funds without legal status created by the legislator. | | The defendant article does not create, mention or affect any particular tax but merely states that it is what constitutes a special fund, without specifying the nature of such income. In this order of ideas, article 30 of Decree 111 of 1996 does not enshrine or affect any tax income, a circumstance which, according to the case law of this Corporation, excludes the possibility of violation of Article 359 of the Political Charter as soon as a legal standard does not incur the prohibition of national income of specific destination if it does not contain a certain income, tax character_[34]".

The understanding of special funds as differentiated modalities of national income was reiterated by the Court in Judgment C-066 of 2003. On that occasion, the Chamber ratified the foregoing to conclude that the special funds did not contradict the constitutional definition of current income, provided for in the article 358 C. P. In this regard I consider that "[e]n the extent to which, as specified in this providence, the exclusion of certain income from the concept of Current income of the Nation according to its specific destination, is only contrary to the Charter when, such destination It is also true that the unconstitutionality of the rules which provide for the possibility of special funds as an independent classification of the revenue from the budget, but which would be required to examine, cannot be declared in the abstract. each case, the laws regulating such funds, to determine whether their forecasts are compatible with the Constitution or not. | | Thus, it would be contrary to the Constitution that the legislator regulate within the special funds, resources which by its nature are in the condition of the current income of the Nation, and which, neither by its origin nor by its characteristics, save a specific connection relationship to the end indicated for the respective fund. However, the classification of income as belonging to a special fund would be valid, when the same, from its origin, is due to the need to provide for a particular service, which is financed from them. But that, it repeats, can only be established in the concrete analysis of each such fund. "

7.4. Special funds differ from other types of resource involvement, if they are institutional in nature, such as the so-called account funds. These funds, although they are similar to the special funds in terms of their function of distribution of public resources for a defined purpose, differ radically in that they, as indicated, are a particular modality of classification of national income, while those are assimilated to a public entity, by virtue of which they have legal status.

These differences were elucidated by the Court in Judgment C-713 of 2008, which reiterated the applicable precedent for the automatic control of the constitutionality of the standard. It would be statutory to reform the 1996 270 Act with the aim of creating the Justice Administration's Fund for Modernization, Discongestion and Welfare. In that decision, it was established that the constitutional case law has concluded that in those cases where the legislator decides to introduce a fund and grants it in the corresponding legal standard, it is before a Thei_aj"> entity fund, which cannot be understood as a simple categorization of public revenue, but as a reform that has an impact on the structure of the administration.

To arrive at this conclusion, the Court relied on the considerations that were made in the 2003 C-650 judgment, expressed in the light of government objections against a bill that The creation of the Antonio Narino Joint Fund for the Development of Journalism, censures based on topics similar to those analyzed in the case of the reference. Thus, it was pointed out by the plenum that "[e] n its conceptual definition, in Judgment C-650 of 2003, M. P. Manuel José Cepeda, the Court explained that the special funds" are a management system of accounts, according to which a rule allocates goods and resources for the fulfillment of the objectives referred to in the act of creation and whose administration is made in the terms in this mentioned ", whose resources are included in the national income budget. | | At that time the Court also explained that a fund with legal status is not comparable to a special fund that constitutes an account (without legal status). In this way, the first one is assimilated to an entity of a public nature that is part of the public administration and therefore modifies its structure, while the second refers to the system of management of resources and therefore has no personnel legal. However, an entity-fund may have within its functions the administration of an account. (...) In this way, the creation of a Fondo-entity implies the modification of the structure of the national administration, which makes it necessary to comply with the special constitutional norms as soon as the creation must be made by the legislator and have the initiative or endorsement of the government (articles 150-7 and 154). In addition, pursuant to article 50 of Law 489 of 1998, which develops article 150-7 of the Political Charter, " the law that provides for the creation of of an agency or administrative entity shall determine its objectives and organic structure and likewise shall determine the budget support in accordance with the fiscal guidelines of the Ministry of Finance ". | | Thus, the Legislator must point out the essential elements relating to the entity, such as, for example, the management and administrative bodies, their integration, the legal regime, the budget support, among others.

As noted, the Court has identified a link between the configuration, by mandate of the legislator, of entity funds and the enforcement of the government endorsement in those cases, as provided for in the article 154 C. P. This is because, contrary to how it happens with special funds, entity funds are modifications to the administration structure, derived from the inclusion of a new institutional body. In turn, it should also be noted that the main differentiating factor between the aforementioned institutes is that in the funds entity prexiste the decision of the legislator to confer legal status, which gives the institutional character before indicated.

Based on the conceptual and jurisprudential precisions analyzed, the Court passes to resolve the legal problems described in the legal basis 5.

Solution of legal problems

8. The first legal problem concerns the alleged lack of knowledge of the government's reserve of initiative, as the structure of the national administration has been modified by the inclusion of the Joint Fund under Article 11 of the Law objected. According to the rules set out above, the answer to this question depends on two variables: (i) the legal nature of the Joint Fund; and (ii) the link between its purposes and the of the ministerial portfolio to which it was attached.

8.1. As for the first, the Mixed Fund has the character of account fund, in the terms explained above. Article 11 objecting is to determine that this is a special account, without legal status, that aims to " to provide the necessary resources for compliance with the provisions of this law and to permit the operation of the activities of the Manuel Mejía Vallejo Foundation. "

Thus, it is found that the legislator granted an express legal nature to the Mixed Fund, excluding it from the possibility of being considered as a fund entity. However, the determination of the purpose of the Fund shows that it was constituted as a mechanism for the arbitration of public resources, which is, in turn, aimed at meeting the aims of the draft law, which are concentrated in the preservation and promotion of the work of Colombian writer and intellectual Manuel Mejía Vallejo. This verification makes it possible to conclude that the inclusion of the Joint Fund lacks an institutional component because, as explained, this trait is not of the funds account, as a means of distribution and management of the tax revenue.

The absence of the institutional component prevents us from claiming that the structure of the national administration is being modified. On the contrary, the legislator, in exercise of his constitutional powers, created an account fund and arranged for his administration to be in charge of the Ministry of Culture, represented in an official who exercises the direction of the same. Note that the legislator did not choose to create a new institutionality for the Mixed Fund, nor did he order the creation of new public posts or administrative divisions in the aforementioned Ministry. Instead, he limited himself to setting up a new function for that portfolio, consisting of the fund's management account. Therefore, it is not before a legal rule that changes the structure of the national administration, so it is not appropriate to demand the initiative of the article 154 C. P.

Now, it must also be made clear, in the face of some considerations made in the insistence of the Congress and in the concept of the Attorney General, that the Mixed Fund regulated in the contested rule has a different legal nature than the mixed funds for the promotion of culture and the arts, which is dealt with by Law 397 of 1997. According to the article 63 of this regulation, the aforementioned funds are intended to promote the creation, research and dissemination of various artistic and cultural manifestations. The Ministry of Culture, based on the same provision, is authorized to participate in the creation of the mixed departmental, district, municipal and indigenous territories according to the regulations that for this purpose to issue the National Government, as well as to make contributions and to conclude agreements to promote and promote the arts and culture with these funds.

However, it cannot be lost sight of the fact that mixed funds promoting culture and the arts belong to the category of entity funds. In effect, the aforementioned legal standard is to indicate that these mixed funds " are non-profit entities, endowed with legal status, constituted by public and private contributions and governed in their direction, administration and procurement by private law without prejudice to the tax control exercised by the respective Comptroller's Office on public funds. " It is precisely that institutional character of the mixed funds explains that article 57 of Law 397 includes them as one of the entities that make up the National System of Culture.

Instead, the Manuel Mejia Vallejo Mixed Fund for the Promotion of Culture and the Arts (i) is a special account without legal status; (ii) cannot therefore be understood as an "entity"; and (iii) his administration corresponds to the Ministry of Culture, which justifies that the contracts to be concluded in relation to it, as provided for in Article 11, are governed by the General Staff Regulations. of the Public Administration. This is for the simple reason that such contractual processes will be in charge of the Ministry of Culture as the Mixed Fund, it insists, lacks legal status.

8.2. In the second term, it should be verified that the following condition is met for the constitutionality of the measure, concerning the link between the purpose of the Joint Fund and the mission objectives of the Ministry of Culture. This is because, as explained above, the case law of the Court has concluded that an amendment of the structure of the national administration is being made when the ministries are imposed on the ministries that are not for the purposes of the for which they were intended.

In the case analyzed, the Chamber finds that there is a clear connection between the objectives of the Ministry of Culture and the purpose for which the Joint Fund was constituted. According to article 17 of Law 397 of 1997, the State through the Ministry of Culture and territorial entities, will promote the arts in all its expressions and other symbolic manifestations As elements of the dialogue, the exchange, participation and as a free and primordial expression of the thought of the human being that builds in peaceful coexistence. In that order of ideas, the article 18 ejusdem provides that those activities of promotion of the Ministry of Culture and the territorial entities achieve concreteness in the establishment of special stimuli and the promotion of creation, artistic and cultural activity, research and the strengthening of cultural expressions. To this end, the law lists promotion options such as work bags, scholarships, annual awards, competitions, festivals, workshops for artistic training, support for people and groups dedicated to cultural activities, fairs, exhibitions, In addition to the provision of incentives and special credits for outstanding artists, as well as for members of the local communities in the field of creation, execution, experimentation, training, and research at the individual and collective level. These activities operate on different cultural expressions, among which are (i) traditional cultural expressions such as folklore, crafts, popular narrative and memory. cultural of the various regions and communities of the country; and (ii) the literary arts.

As is evident, these responsibilities of promotion by the Ministry of Culture and the territorial entities keep a unity of meaning with the different activities that, around the work of the writer Manuel Mejía Vallejo, previews the Draft law objected to. Thus, the Court concludes that the governmental objection regarding the lack of knowledge of the articles 150-7 and 154 C. P., is unfounded.

8.3. In the face of the second legal problem, the Chamber finds that even though Article 30 EOP refers to special funds as instruments for the distribution of income from the national order, the rules The applicable constitutional provisions prevent this organic provision from being validly interpreted in the sense that the Government sets out, that is, that the special funds are exclusively referred to national resources.

Article 150-11 C. P., confers on the Congress, on the initiative of the Government, the competence to establish the national income and to fix the expenses of the administration. It is from that competition that the Congress is empowered to propose rules that, as funds are available, determine the distribution of these national income. Likewise, in accordance with the degree of autonomy of the territorial entities provided for in the Constitution, Articles 300 and 313 C. P., confer on departmental assemblies and municipal councils the powers to (i) decree, in accordance with the law, the taxes and contributions necessary for the performance of their duties; and I_aj"> (ii) issue the organic rules of the budget departmental and municipal, and the annual revenue and expenditure budget. These competences are concrete expressions of the autonomy that territorial entities enjoy for the management of their interests, in the framework of the Constitution and the law, which involves, among other guarantees, the right to manage their resources and establish the taxes necessary for the performance of their duties (article 287 C. P.).

based on these forecasts, the constitutional jurisprudence concludes that the fiscal and budgetary activity of the territorial entities must be articulated between the degree of autonomy that the Political Charter confers upon them and the validity of the the principle of unitary State, the implications of which explain that the same text delimits the exercise of that power to the mandates of the legislator, thus providing for the need to harmonise both ends in each individual case. In particular, the judgment C-321 of 2009, when referring to different decisions of the Court on this matter, pointed out that " it is necessary to harmonize the contents of the principles of unity and autonomy, which are mutually limited. In this sense, the Constitutional Court in Judgment C-535 of 1996 considered that autonomy should be understood as the capacity of the territorial entities to manage their own interests, within the limits of the Constitution and the law, which means that while, on the one hand, the local interests are affirmed, it is recognized, on the other hand, " the supremacy of a higher order, with which the autonomy of the territorial entities is not configures as sovereign power but is explained in a unitary context "_[35]. In that same providence it was pointed out that "on the one hand, the principle of autonomy must be developed within the limits of the Constitution and the law, thereby recognizing the position of superiority of the unitary state, and on the other, the principle of autonomy." The unit must respect an essential space of autonomy, the limit of which is the area in which the latter is developed "_[36]. | | Subsequently, the Court in Judgment C-1258 of 2001 brought forward some clarifications regarding the role that the legislator is required to play in the configuration of the regional autonomy, indicating that it is integrated by " the set of rights, privileges and powers recognized in the Political Charter to the territorial entities and their authorities, for the efficient fulfillment of the functions and the the provision of services to his/her office "_[37]. As for the maximum limit, the Court expressed that it has a border at that end which, when it is overcome, breaks with the idea of the unitary state "_[38].

8.4. Given these arguments to the resolution of the second legal problem of this decision, it is necessary, first of all, that the article 30 EOP does not provide for a rule of law according to which the resources that make up the Special funds should be exclusively of a national nature, as the government proposes in the proposed objection. In this regard, it is found that the definition of the organic legislator is restricted to noting that "[c]onstitute special funds in the national order, the income defined in the law for the provision of a specific public service, as well as those belonging to funds without legal status created by the legislator. " From this definition, it cannot be validly co-established that there is such an exclusivity of sources, but rather that it is compatible with the possibility that special funds are formed with income from the territorial order or even from mixed nature.

Precisely a mixed-account background mode is that provided for in the objectionable rule, which indicates that the Fund's public nature resources will come from three specific paths, namely (i) budget resources General of the Nation; (ii) budget resources of the Department of Antioquia; and (iii) resources of the budget of the Municipality of Medellin. Therefore, the legislator, in the use of the competition mentioned in the article 150-11 C.P., stipulated a fund has several financing resources. Similarly, based on the powers deriving from the principle of unitary State, expressed in the delimitation of the budgetary powers of the territorial entities to the legal definitions, the legislator foresaw that Sources of integration of the fund account are resources of the Department and the Municipality mentioned. Furthermore, it cannot be lost sight of the fact that a provision of this nature could only be issued by the Congress, since it is this body that has the power to decree expenditure that authorizes the general budget of the the Nation, as explained above.

However, emphasis should be placed on the fact that the proposed operation is articulated in accordance with the validity of the constitutional norms, in particular the articles 300 and 313 C. P., and the organic provisions in budget matter. Therefore, the concurrence of the territorial resources in the Joint Fund should be preceded, in any case, by the decision of the Departmental Assembly of Antioquia and the Municipal Council of Medellin, since these are the organs of the competent to define the expenditure and the budgetary allocations of the resources owned by those territorial entities. As a result, the provision in question in any way alters the validity of those powers, nor does it even involve an imperative order for the allocation of resources of the territorial entities concerned. On the other hand, in the Court's judgment, the defendant rules are restricted to the creation of a fund account for the Ministry of Culture, in the terms explained, but it does not affect the application of the constitutional and organic provisions that lay down the competition and the bodies responsible for approving the budgetary allocations of the territorial entities.

In this respect, it should be emphasized that the forecast contained in paragraph 1 of Article 11 objected to the fact that the Fund's resources will be integrated, among other sources for the contributions assigned to the Department's budgets. of Antioquia and the Municipality of Medellin, in no way can they be understood as imperative orders for these territorial entities to make available to the Fund those resources. On the contrary, this legal provision can only be understood as an authorization so that, after the constitutional and legal procedure, in particular the decision of the respective Assembly and Council, those resources are transferred to the Joint Fund, if so decided by the respective bodies of the territorial entities concerned.

Thus, it must mediate the corresponding budgetary procedure in each of the above mentioned territorial entities, in accordance with the exercise of the powers of the href="policy_constitution_1991_pr010.html#300"> 300-5 and 313-5 of the Constitution, as a prerequisite for the allocation of resources of those entities in favor of the Fund. This is understood to mean that this exercise of competence is a concrete manifestation of the right of the territorial entities to administer the resources and to establish the taxes necessary for the exercise of their functions. Therefore, as far as budgetary matters are concerned and in relation to the ownership of the territorial entities, the legislator should be respectful of this area of autonomy, which involves not only the need to maintain the (a) the powers of those entities to manage their tax resources, but also the need for the powers to be transferred from the central State to be sufficiently financed. As the Court has highlighted " ... [S]i well recognize as a starting point the power of the central power to direct public finances, it should be noted that this faculty does not translate into emptying of the budgetary autonomy of the territorial authorities. The faculty of management and execution of own resources cannot be affected by the design of a fiscal consolidation policy in such a way that it makes it impossible to pay attention to the interests of the localities. This is why autonomy is affected not only when the tasks to be carried out are defined specifically, but also when the territorial authorities are not allowed to act, but also when the central authorities decide to transfer the entire the responsibilities of the nation, without the support of the means and resources necessary to deal with them efficiently. This transfer not only jeopardises the principle of autonomy but also the principle of the social rule of law relating to the principles of coordination, subsidiarity, concurrency and cooperation of the administration. public "_[39].

On the basis of these considerations, it is concluded that the government objection which led to the second legal problem is based on an inadequate understanding of the organic rules on budget, which in turn led to the demand for conditions not provided for in such regulation. Thus, the plenum does not evidence the involvement of article 151 C. P., so this censorship is also declared unfounded.

9. In conclusion, the government objections raised are unfounded, since (i) the Manuel Mejía Vallejo Mixed Fund for the Promotion of Culture and the Arts is an account fund, which lacks character institutional and therefore does not configure a modification to the national structure; (ii) the Joint Fund complies with the purposes intrinsically related to the mission objectives of the Ministry of Culture, in charge of your administration and (iii) no organic rule is present (a) the budget which prescribes that the special funds must be exclusively made up of resources of the national order, with the possibility of organising them with mixed funding. In turn, according to the reasons stated, this legislative option is compatible with the full validity of the powers that in budgetary matters, the Constitution recognizes the territorial entities.

DECISION

In merit to the considerations set forth by the Constitutional Court, administering justice on behalf of the People and by mandate of the Constitution,

RESOLVES:

First. Declare UNFOUNDED the governmental objections to the 2009 Senate Bill, 259 of 2009, House, tribute to the memory, life and work of the intellectual, freethinker and writer Manuel Mejia Vallejo and decrees and effects are decreed in his honor.

Second. As a result of the above and exclusively with respect to the objection formulated by the National Government, declare EXEQUABLE Article 11 of Bill 90 of 2009 Senate, 259 of 2009 Chamber, for which I know pays tribute to the memory, life and work of the intellectual, libretador and antioquist writer Manuel Mejía Vallejo and decree provisions and effects in his honor.

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

Copy, notify, contact the President of the Republic and the President of the Congress, insert yourself in the Gazette of the Constitutional Court, comply and file the file.

The President,

GABRIEL EDUARDO MENDOZA MARTELO.

Maria Victoria Calle Correa, Mauricio Gonzalez Cuervo, Adriana Maria Guillen Arango, Jorge Ivan Palacio Palacio, Nilson Pinilla Pinilla, Jorge Ignacio Pretelt Chaljub, Humberto Antonio Sierra Porto, Luis Ernesto Vargas Silva, Magistrates.

The General Secretariat, Statement C-617 , 2012.

MARTA VICTORIA SACHICA MENDEZ.

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