Creación y emancipación de las instituciones de derecho público: El caso de las agencias en Colombia

Abstract

A detailed analysis is carried out on the influence of some techniques and administrative phenomena of foreign origin and the way in which they were incorporated into the administrative structures of contemporary States, among which Colombia is found with the creation of the so-called autonomous and independent bodies - which break, to a large extent, with the traditional thesis of the division of public power formulated by Montesquieu -, and more recently, with the so-called “State Agencies”, whose incorporation into the Colombian State is the subject of review in this document. On the other hand, the thesis makes a careful analysis of the traditional structure of the State until arriving at concepts as novel as that of "Regulatory State", in which the State maintains its role of intervention but no longer from the provision of services as it was done historically, but from the point of view of surveillance, control, inspection and regulation of those sectors that, due to their importance in the economic, social and political life of the country, require special intervention in accordance with technical criteria oriented to guarantee the rights of citizens and the competition in increasingly crowded markets. In addition, the thesis addresses the question of the origin and appearance of the "State Agencies", for which it bases its origin in the Political Constitution of 1991 and in the subsequent legislative developments, which allowed the incorporation of these entities in the organizational structure of the Colombian State, which, although in general terms comply with their institutional duties, the truth is that their legal nature raises tensions and conceptual challenges regarding the role they fulfill and, in particular, regarding independence that they hold vis-à-vis the other branches of public power, specifically the Executive Branch, since most of these bodies are attached to or linked to it.