CONSTITUCION POLITICA

Abg. LUIS ARMANDO BAUTISTA

THE CONSTITUTIONAL (DE) CONTROL IN COLOMBIA

Constitutional supremacy in Colombia is not determined only by the 1991 higher text,
but is a comprehensive and unfinished regulatory set called the Constitutional Bloc.
Which would suggest that in Colombia there is a model of concentrated control,
Italian, German or Spanish style, but that is not the case because there are other
authorities empowered to carry out constitutionality control. Approved by a quick
process that has been called fast track and that have a special constitutionality
control. Therefore, not only the written Constitution, but all the rules that make up
the Constitutional Bloc, are rules of rules and, therefore, references of validity.

Therefore, it should be clarified that in this article, when we refer to constitutionality

control, we do not know the existence and importance of conventionality control
because, as stated, our conception of the Constitution does not come down to the
articulation of the 1991 text, but is a much broader regulatory set that includes the
American Convention on Human Rights and other international treaties on this
subject and which are part of the constitutionality bloc. Long before the Inter-
American Court of Human Rights talked about conventionality control, those in our
country are empowered to ensure compliance with the Constitution, in doing so, they
also guarded on the San José Pact. Although there are authors in international
doctrine who establish the need to differentiate constitutionality control from
conventionality control, in Colombia both controls cannot be understood
independently. In our case, the constitutionality control becomes even more complex
because, according to Legislative Act 02 of 2017, the contents of the peace
agreement concluded between the Colombian State and the farC-EP guerrillas,
which relate to fundamental rights and international humanitarian law, refer to the
validity, interpretation and development of laws and other legal norms that seek to
implement the agreement.

In Colombia, then, the Constitution should be understood as a broad regulatory set

called the Constitutional Bloc and, although not expressly said, by establishing that
the peace agreement concluded between the Colombian State and the FARC-EP
guerrillas, in terms of fundamental rights and international humanitarian law, is a
benchmark of validity for laws and other rules seeking to implement it , the
agreement was given constitutional status. Some call for our mixed control, the
Constitutional Court conducts constitutionality control over the reformatory acts of
the Charter, the laws, decrees with material force of law and other rules contained
in article 241 of the higher text. It also carries out control of abstract constitutionality
UNIVERSIDAD DE SANTANDER
INGENIERIA DE SISTEMAS
Est. EDGAR DANIEL ROLON CARRILLO
CONSTITUCION POLITICA
Abg. LUIS ARMANDO BAUTISTA

the Council of State, which according to article 237, numeral 219, knows of the
actions of nullity for unconstitutionality of the decrees of the National Government
that are not the responsibility of the Constitutional Court. The Administrative
Litigation Jurisdiction has jurisdiction to carry out constitutionality control of
administrative acts such as ordinances, decrees of governors, agreements, decrees
of mayors and resolutions of lower hierarchical authorities.

In addition, the judiciary in the field of guardianship in accordance with Article 86 and
all public servants and individuals with the duty to apply a rule is carried out, since
they are entitled to not apply it by the exception of unconstitutionality, in accordance
with Article 4, in both cases of the constitutional text. The Colombian system of
guarantees to make the Constitution effective, has been described as the most
antitechnical of those existing in the West by Carlos Restrepo Piedrahita, important
scholar of the history of constitutional law in the country, fulfilling the duty to ensure
the supremacy and integrity of the Constitution, the Colombian Constitutional Court
performs four types of constitutionality control. The first is abstract control over rules,
the second is the possible revision of constitutionality of the guardianships presented
in the country, the third is the concrete control of constitutionality when it orders the
non-application of rules using the exception of unconstitutionality and, fourth, is the
control of constitutionality to the mechanisms of citizen participation in the terms
provided for in the Constitution and in the statutory laws that regulate the matter.
These rules have a constitutionality control by the Court, subsequent, automatic and
unique and for this type of rules a special constitutionality review procedure was
created.

Inhibitory rulings are not typical of the control of informal constitutionality, since 1992
until 2017, there were only 1343 out of a total of 6,273, representing 0.2% of all
sentences of abstract control of constitutionality issued. On the other hand, they are
very common in judgments against actions of unconstitutionality brought by citizens,
since during the same period of time there were 1,140 inhibitory judgments,
representing 18.17% of all judgments issued by the High Court in abstract control of
constitutionality, which contradicts the exceptionality raised by the Court.

UNIVERSIDAD DE SANTANDER
INGENIERIA DE SISTEMAS
Est. EDGAR DANIEL ROLON CARRILLO