The Colombian Constitution of 1991 provided the high courts the capability to propose a shortlist of three candidates for Comptroller so Congress would choose one. This mechanism pretended to shield the process with a technical feature and merit to elect the person responsible of fiscal control of the country.
In the last 27 years, 7 Comptroller Generals have been elected with this method. However, these rules will change to elect the incoming Comptroller (between this upcoming July 20 and August 20) due to the legitimacy crisis and mistrust over the high courts of justice recent corruption scandals, where several of its members have been involved.
According to expert Constitutionalist and Universidad Nacional de Colombia (UNal) Faculty of Law, Political and Social Sciences Professor Daniel Libreros, these crises led the higher courts not to present a slate of three candidates for control organisms, with the purpose of avoiding the accusations of being judge and jury in political, fiscal and exoneration frauds.
Among the scandals that provoked these changes are several scandals including those of former Constitutional Court magistrates Jorge Pretelt and Rodrigo Escobar Gil, implicated for favoring rulings against Fidupetrol; the so-called “toga cartel”, where the anti-corruption fiscal Gustavo Moreno, recently extradited and linked to other Supreme Court Magistrates Gustavo Malo, Francisco Ricaurte and Leonidas Bustos and Congressmen were involved in a major scandal for bribes to rule against known corruption linchpins.
This lack of credibility and trust led to a Legislative Act 02 of 2015, establishing the election of the Comptroller General will be carried out through a public summons with the purpose of warranting balance and avoid abuse of power. Therefore, this excludes the judicial branch from this decision and changes the formula of a three-person slate to a summons to provide Congress the candidates to elect a new comptroller.
According to the new mechanism, they will line up an Accidental Commission formed by one member of each of the parties in House and Senate, with the same number of representatives and senators, to elect a credited public or private university, to carry out the first election of candidates.
This first filter will assess their résumés and their knowledge for fiscal responsibility and control. 30% of the candidates with the highest scores or a minimum of 20 will be considered by this Commission, which will choose 10 names to send to Congress, which will finally elect the Comptroller General. In case that none of the candidates reaches the absolute majority, there will be a second vote and the two highest voted candidates and the candidate with the most votes wins.
Since the Commission must be formed by an equal number of representatives and senators of all the parties and political movements, but usually there are more representatives in the House than in the Senate, the new rules establish that to complete the number of missing senators, they will be chosen by the electoral quotient. This means the majority parties will have more representation, not only in the Congress plenary, which elects the Comptroller but also in the Accidental Commission which will choose the 10 eligible candidates.
For UNal Professor and Law Ph.D. Germán Burgos, the new intervention of Congress does not eliminate the political interests of the election of the Comptroller which the reform pretends but takes up again a model similar that was in place before the current Constitution.
“This turned into a rule similar to the Constitution of 1991, in a context where there is greater intervention of the parliament, in a polarized country, what will be expressed in candidates to be more loyal to determined sectors, in other words a pure and hard politicization level, linked to the political majorities”. The difference is that it introduces a university in the process to provide technical legitimacy, which is not a warrant for independence.
The fact that a university is in charge of performing the initial selection of candidates could legitimize the capability of the candidates, as the institution has social credibility. However, for Burgos, “eventually it could turn for alumni of certain universities to have greater possibilities than others in certain instances of government as already occurs in a certain areas of the legal or executive branch.”
On the other hand, this is an enabling valuation, not a merit contest, meaning that the candidate with greater score is not guaranteed to occupy the position but is just enabled to continue in the process. An ample list (20) can give way to people with merit but also to people linked to political powers; in this sense, the role of the university may be filtered and does not provide the necessary autonomy guarantees.
This manner of allotting a position to a person who has the task of exerting control to other powers of government in a country where clientism is amply extended and where “knowing someone” takes precedence, turns the Comptroller Generals position into a source of power linked to contract and funds.
For the election of these types of position Professor Burgos trusts more in the participation of international organisms, with committees formed by national and international specialists, which will provide the autonomy and independence necessary for appointment.
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