On August 21, the President of the Republic, through his Legal Secretary, objected to the Bill 056 of 2024 Chamber – 345 of 2024 Senate, known as the Merit Law, due to unconstitutionality and inconvenience. The law aims to prohibit the reduction of minimum requirements for accessing directive positions in the public sector and state-owned companies.
The objective of this project is to prevent the government from modifying the Function Manuals to appoint people who do not meet the minimum required profile for the respective entity. This practice has been questioned by citizens when cases have come to light.
The government’s objections are mainly related to competence issues, as they claim the project invades the Executive’s faculty to organize public employment, alters consultative competences of the Council of State, and is unnecessary due to the existing requirements in Decree Law 770 of 2005.
Historical Context
The Constitution of 1886 established requirements for being a Senator, including being Colombian by birth, a non-suspended citizen, over 30 years old, and having an annual income of at least 1,200 pesos. These requirements were later modified.
In the proposed Constitution presented by the National Government, the requirements for being a Senator were changed to include being Colombian by birth, a citizen in exercise, over 30 years old, and having held certain public positions or having a university title.
During the National Constituent Assembly, the requirements for being a Senator and Representative were debated, and it was proposed that Senators should have higher requirements than Representatives. However, the Constituent Assembly eventually rejected these higher requirements, recognizing their antidemocratic and exclusive nature.
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The reduction of requirements for being a Senator occurred on June 11, 1991, when it was recognized that the national constituency, combined with the historical and economic conditions of the Senate’s formation, was an attack on small territories. As a result, it was agreed that the only distinct requirement between the two chambers would be age.
This conclusion remains valid today, as requiring a specific profile in a country with territorial and educational inequality like Colombia implies a generalized restriction of access to public service.
The Problem with the Project
The Constitution does not limit professionalization or maximum standards of merit for entering public service, as setting study and experience requirements is ordinary and necessary in the legal system. However, the Constitution does not admit that these minimum requirements become irreversible.
The project does not regulate requirements but rather shields them against reduction and leaves them free to increase, making it almost impossible to correct them even if they become discriminatory, obsolete, or unrelated to the entity’s real needs.
This risk is exacerbated over time, as the automation of procedures, data analytics, and self-management models are changing the way public services are provided, and the skills required to direct them. A profile designed 15 years ago may be requiring irrelevant credentials and omitting essential competencies.
A law that only allows raising the threshold but never correcting it would make this obsolescence mandatory.
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The problem was not with the threshold but with verification and the criteria of the appointer. In Colombia, anyone can be a minister, senator, or representative, and the relevant question is not whether someone can occupy a high position but whether they should.
This question is not resolved with a legal threshold but with criteria, scrutiny, and real consequences when someone unprepared reaches a ministry. The project, although laudable, should be reoriented towards mechanisms that attack conduct without freezing the system of human talent and public employment in the Colombian state.
One possible mechanism would be to incorporate a public hearing before the Senate or Chamber, prior to the possession of high-ranking directive positions, with mandatory publication and verification of the correspondence between the person’s profile, the entity’s functions, and the Function Manual. This would be a useful tool for the country to know, before and not after, who is prepared to direct a portfolio and who is not.
The second mechanism would be to require reinforced motivation to modify the Function Manuals, with technical justification, prior concept from the Department of Administrative Function, and express accreditation that the modification was not designed for a specific aspirant. This would directly attack the conduct the project wants to prevent without closing the possibility of correcting profiles in the future.
In this direction, the Merit Law could be reoriented. Many people want the most competent, best-trained, and best-qualified individuals in public service, but this should be the result of a decision subject to control and not a barrier to entry that the Constituent Assembly already knew, discussed, and rejected. The law could be modified to include these mechanisms, allowing for a more democratic and inclusive selection process for public positions.
