Los vacíos procedimentales del control automático de legalidad para los fallos con responsabilidad fiscal de la Contraloría General de la República

Abstract

SUMMARY I. THE POSSIBLE SOLUTIONS SEEKING BY THE LEGISLATOR TO DECONGEST THE CONTENTIOUS JURISDICTION The context that we will study invites us to identify norms that the legislator has foreseen with the purpose of decongesting the judicial system, thus, it has to be evidenced if they really comply with the reason for their birth or if, on the contrary, they push the system to be more and more cumbersome. Likewise, it has seemed to us that the office of the judicial branch and the Public Ministry crosses a bit in the decisions of the Comptroller General of the Republic, since it would be qualifying and giving a sudden approval or disapproval of its decisions – in terms of rulings with fiscal responsibility is concerned – which were autonomous. I.I. The judicial branch as verifier in the absence of natural investiture: It cannot be natural that for a decision emanating from the Comptroller General of the Republic, a control is carried out by a branch that has nothing to do with it from its source; The judicial branch was born to solve controversies between undetermined parties that do not find a balance in the defense of their rights and interests, not to qualify the task of a judge of a different instance. I.II. The Public Ministry as a third party intervener: It is the same story of the judicial branch, however here the role is a little different, since they push the ministry to develop a role in which it must give an opinion on what is right or wrong, issuing a concept where the wear of the entity is growing as well as its congestion. The Public Ministry, instead of carrying out its work of being a guarantor, becomes a third party that gives its opinion on something that another different instance fails. II. THE CONGESTION TO WHICH THE PUBLIC MINISTRY HAS BEEN SUBMITTED There are several tasks that are being entrusted to the ministry without it being prepared to face such a bag of responsibilities, it must issue a concept in which a complete map of a process that is many times extensive that was failed without having taking into account the ministry, in addition to this, the time to develop the difficult work was granted in a very reduced way. II.I. The legal clock that goes against reasonable time and almost never guarantees a truly reliable and responsible concept: Again, the lack of advice or direct knowledge of the issues first hand, make decisions and legislate in a way contrary to all logic of law from the orbit of the actual performance of a public official who must almost marathonically issue a concept that it is not just any job, but must be framed within conditions that require complete knowledge of a process that has characteristics that are different from any other; it is a generally contractual process and everything is known about the size and number of pages that a state contract contains. II.II. The wear generated by a congestion in the Public Ministry: It is necessary to understand that behind an intervention of the attorney general's office we find actors from other trades, that is, that the same attorneys who issue the concepts, in turn, have a workload similar to that of the contentious jurisdiction. It is not uncommon for us to find commonly called shock plans, which are the ones that are configured when there are work emergencies to resolve urgently. III. THE PROCEDURAL RESERVE IS A PRINCIPLE THAT IS UNKNOWN WITH THE AUTOMATIC CONSULTATION When verifying that a decision with fiscal responsibility emanating from a comptroller is in automatic consultation, a publicity mechanism must be established so that third parties who believe they are affected by the decision can intervene; It is where the procedural reserve that exists throughout the process ends, since all interested citizens are called to intervene. III.I. The ruling out of law It was intended in this section to explain in detail the intervention of the judges in an orbit that they do not know and that they are informally led to intervene, causing their work to move a machinery of non-participating entities in the first instance and that push apart from some procedural rights to (those) investigated and sanctioned. It is here where we will jokingly find the real Colombian situation where the state councilors had to declare themselves disabled because in most cases their relatives work in the Office of the Comptroller General of the Republic. Along the same line, the undersigned author makes a simple criticism exploring points of view with examples and assumptions in different scenarios that surely generate obstacles and procedural delays; We conclude by leaving the doors open to file lawsuits of unconstitutionality or proposals that the administrators will make in their respective entities to solve the congestion, for example, the creation of positions in the Office of the Attorney General of the Nation.