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In the past year, amidst the restrictions brought by the coronavirus pandemic, which has limited mobility and, therefore, access to courts and tribunals, 387 lawsuits have been filed in the Constitutional Court against different laws.
Until October, according to the records of the high court, they had reached that number of public actions, equivalent to about 1.27 demands every day, on average, resources that are a mechanism of direct control over the laws, a political right, and a form of democratic participation.
This figure, however, is lower than that registered last year. Between January and October 2019 there were 507 of these resources, which means that this year lawsuits against standards decreased by 23.66 percent. The figure, in fact, is the lowest since 2010, when there were 357 actions of unconstitutionality between January and October. (Also read: What has happened in the Courts with the protection of the protest?)
In addition, this year the Court has issued 139 constitutionality rulings on the demanded norms until October, compared to 364 for the whole of last year.
For Kenneth Burbano Villamarín, director of the Observatory of Constitutional Citizen Intervention of the Free University, “Quarantine, confinement, isolation generate effects on the demand for justice and even more so in actions of unconstitutionality”, since these mechanisms are not for the immediate protection of rights (unlike guardianships), which can be a reason why the number of resources of this type has decreased this year.
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But, in addition, Burbano believes that there are two other reasons that may be demotivating the filing of lawsuits. On the one hand, he said, although the lawsuits can be filed by any citizen, without having to be a lawyer, the requirement of requirements such as clarity, certainty, specificity, relevance and sufficiency – which go beyond general requirements such as indicating which one is the norm that is being demanded and why it violates the Constitution – could be seen as an obstacle. This is because, he points out, although the lawyers understand the demands, from the public perception “this is a way to prevent lawsuits from reaching the Constitutional Court.”
In a certain way, lawyers understand the demands of the Court, but from the public perception, it is a way to prevent lawsuits from coming. ‘
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On the other hand, he assured, also can discourage judgments in which the Court restrains itself from the lawsuit for not complying with formal requirements that should have been reviewed since the appeal was admitted, which “discourages the presentation of claims of unconstitutionality and reduces the credibility of the Court.”
On formalities, precisely the Eafit professor of constitutional law Esteban Hoyos Ceballos wrote yesterday in a column of The Empty Chair, stating that although there must be filters to avoid innocuous lawsuits, This does not imply that they should become blocks that make it impossible to present these resources, due to problems such as “excessive formalism” when checking whether a claim is admitted.
The most questioned laws
Two of the most demanded laws have been promoted by the Government in Congress, such as the Development Plan and the Economic Growth Law.
At classification of the most demanded laws in 2020 there are rules that did not appear in the previous ones. The first place is tied between two laws that come from this Government, because each one adds 21 resources against him. It is about Law 1955 of 2019, which contains President Iván Duque’s National Development Plan for the period 2018-2022, on which the high court has already issued several pronouncements in recent months.
And also of the 2010 law of 2019, known as the Economic Growth law, created by the Executive after the Constitutional Court overturned its financing law.
From the Development Plan, one of the articles that have been most in demand is 193, which created the Social Protection Floor for workers who earn less than a minimum, and who received several demands from some of the main workers’ centrals in the country such as the CUT, CGT, CTC.
Infographic / WEATHER
And in the Law of Economic Growth one of the articles questioned It is 92, which brings changes on the income tax for companies.
The third place is occupied by the Penal Code, which has historically been the second most demanded law, and that this year he adds 17 appeals against him, followed by the General Code of Procedure (16). Three of the lawsuits against the Penal Code are directed against article 122, which punishes abortion with prison.
(We invite you to read: Decriminalize abortion in Colombia? Arguments for and against)
The fifth most demanded regulation this year, with 16 resources, is Decree 546 of 2020, with which the Government created temporary measures in prisons in the face of the pandemic. That decree, which at the time was harshly criticized by academics and experts who considered it minimalist for its extensive list of exclusions to get out of prison, had already been endorsed by the Constitutional Court in a July 23 ruling. For that reason, the Court has rejected the claims, considering that there is already res judicata.
Another of the rules that appear in the top of the most accused is Legislative Act 1 of 2020, or the law of life imprisonment for child rapists. 9 lawsuits are added against that law; however, the Court has rejected six of them. Precisely that situation led the constitutional law professor Natalia Ángel Cabo to question, on November 8, if the Court was getting out of hand by making the admission of resources more difficult, and by demanding more requirements than due.
They also appear as the most demanded Law 1952 of 2019, the new General Disciplinary Code (9 demands); and Decree 071 of 2020, which regulated the Specific Career System of the employees of the Special Administrative Unit of the Dian, with seven demands. (Read: The inequality of having to put a guardianship to study)
There are 14,029 lawsuits in the Court’s 29 years of life
In the last 29 years, 14,029 lawsuits against all kinds of laws have been filed before the Court. The most demanded is the Code of Criminal Procedure, with 395 resources, followed by the Criminal Code (384); the Substantive Labor Code (384); the Civil Code (383), Law 100 of 1993 (371), the Code of Civil Procedure (243); the General Process Code (229); the Code of Administrative Procedure (291); the National Code of Security and Coexistence (180); and the National Traffic Code (175).
(We invite you to read: Workplace harassment: guidelines of the Constitutional Court to identify it)
The year with the most appeals against regulations was 2016, with 705, followed by 2003, with 620. In 2016, the laws that received the most demands were the General Code of Process and the National Code of Security and Citizen Coexistence, that began to rule that year and on which the Court has already made several adjustments due to unconstitutionality. Instead, in 2003 the demands were concentrated on the National Traffic Code.
In these For 29 years, the Court has issued 6,676 constitutionality rulings: almost half of the total claims that have been filed. The year with the most failures was 2000, with 1,320.
In these 29 years, the Court has issued 6,676 constitutionality rulings: almost half of the total number of lawsuits that have been presented to it.
The ‘surgeries’ of the Court to the Development Plan of Iván Duque
President Iván Duque approved the law of the National Development Plan in Valledupar.
This year the Constitutional Court has issued 13 rulings evaluating claims against the 2018-2022 National Development Plan of the government of President Iván Duque.
This rule, which in total has been requested 75 times since 2019, He has already had several ‘surgeries’ for modifications that the high court has made him in the last two years.
One of the most recent was the ruling in which the Court overturned article 313 of that Plan, related to with the creation of a surcharge for strata 4, 5 and 6, of 4 pesos per kilowatt/ hour consumed, to strengthen the Business Fund of the Superintendency of Home Public Services. The Court overthrew it because it found that it is not possible to maintain that the purpose of this surcharge was social investment.
(Also read: If the problem is structural, it does not apply jail for disrespecting guardianship)
And on November 26, the Court declared unenforceable article 161 of the Development Plan, related to the payment of a fee in favor of the Ministry of the Interior for providing coordination services in a prior consultation. The norm was dropped because it had no relation to other substantial norms of the Development Plan and because although it was a norm of a tax nature, with a vocation for permanence, the Government did not justify its need in light of the integrity of its government plan.
And last October he also made another modification, when the Constitutional Court overturned article 336 of that law, which had repealed a norm of the National Traffic Code that regulated the order to keep in authorized parking lots, under the responsibility of the Judicial Branch, immobilized vehicles by order of a judge.
The Court overturned that law because in Congress it had not been approved in the first debate by the third and fourth committees of the Chamber and the Senate, also because it did not have a connection with the pacts and strategies that make up the Development Plan, since it was not seen what its importance was to achieve the general programs of the Government.
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Furthermore, in February the Court clarified Article 83 of this government plan, stating that although this law allows the State to transfer cultural property to individuals, This must be done with the understanding that the alienation of archaeological heritage or cultural assets that are decisive for preserving national identity is not authorized.
MILENA SARRALDE DUQUE
Deputy editor of Justice
Twitter: @MSarralde
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