Control fiscal preventivo y concomitante: Legitimidad constitucional, garantías en tensión y eficacia en entredicho

Abstract

This article revolves around a question that, while simple in its formulation, is normatively and institutionally profound: Has the new model of fiscal oversight introduced by Legislative Act No. 04 of 2019 been effective? The point here is not to deny the value of a system of control aimed at anticipating harm, nor to question the legitimacy of the preventive tools endorsed by the reformed text, but rather to examine the extent to which that objective has translated into an operational design consistent with the structural principles of the constitutional rule of law. A critical review of Decree Law 403 of 2020—particularly the unconstitutionality of Articles 124 to 148 for seeking to establish a regime of strict liability—sheds light on a central tension: the temptation to equate the effectiveness of control with the sacrifice of guarantees. Through the analysis of recent high-impact institutional cases, it becomes evident that the warning function, far from operating as a real mechanism for risk containment, remains trapped within a weak normative framework—devoid of binding force, lacking sufficient infrastructure, and without properly specialized personnel