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The guardians, among whom was the Senator Iván Cepeda, stated that the Government of Iván Duque it had not received authorization from the Senate of the Republic to approve these military activities on Colombian soil as required by the Constitution and the law.
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In this sense, they pointed out that had omitted the political control of the Congress of the Republic. Last July, the Administrative Court of Cundinamarca endorsed the guardianship, considering that this right had been violated.
The Government filed an appeal against this decision, which was studied by the Fifth Section of the Council of State. In the legal debate, the highest administrative litigation court determined that the plaintiffs did not demonstrate the exhaustion of all remedies in this debate.
“The plaintiffs did not prove that they exhausted before the Senate boards or through the channels provided for the protection of the rights of opposition the right to participate, whose request for protection was transferred to the guardianship judge, “says one of the sections of the 29-page ruling.
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The Chamber also took into account the official records of the Senate of the Republic that indicate that in fact the issue of US troops was on the agenda for several sessions. Likewise, the Defense Minister, Carlos Holmes Trujillo, was summoned to various debates to render the necessary explanations on this issue.
For the Council of State, this shows that the senators did not have any type of impediment “to the exercise of their duties. individual functions of control and political participation to the plaintiffs as members of the Senate within the corporation. “
The fact that between June 1 and June 10 had been held four sessions to discuss the issue shows that they were able to exercise their rights to control and political participation and the filing of a tutela action was not justified.
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The Council of State questioned the conclusions reached by the Administrative Court of Cundinamarca: “A wrong study was carried out, since it concluded that the powers of the Senate of the Republic were unknown. without having previously established that the matter actually corresponded to the assumption indicated in paragraph 3 of article 174 of the Political Constitution, that is, constitutional protection was granted without previously Constitutional judge will verify or define what should be understood by ‘transit of foreign troops through the territory of the Republic’, an issue that, in any case, exceeds his scope of action as guardian of fundamental rights “.
For the high court, several errors were presented both in the presentation and argumentation of the guardianship, as well as in the conclusions of the Administrative Court of Cundinamarca. “(…) the competences that were not exercised by the actor senators cannot be transferred to the constitutional judge of tutela, since the theory of the made inside a body under which, the jurisdiction of the guardianship judge is exceptional, for those events in which the exercise of the functions of the plaintiffs is prevented or they cannot be guaranteed within the Corporation, it is iterated, at this point, that is It is essential to preserve the minimum nucleus of autonomy of the Legislative Chambers to organize, function and exercise their powers without interference from outsiders. “
The high court also rejected the request for annulment presented by the senators of the Democratic Center, Carlos Felipe Mejía, Paloma Valencia and José Obdulio Gaviria.
