Decisión Judicial: ¿En qué medida las sentencias emitidas por la corte constitucional fortalecen u obstaculizan el activismo judicial?

Abstract

Currently, one of the most highly debated elements within the judiciary as a branch of public power, and within the Colombian legal system, is the undeniable role in creating jurisprudential precedents by the supreme constitutional tribunal, such as the Constitutional Court, since its inception with the 1991 Constitution to the present day. Additionally, the subsequent development in our legal context of the concept of judicial activism serves as a clear demonstration of the interpretative power of the constitutional judge according to their ideology, philosophy, and interests. At times, it appears to go beyond the scope of seeking the general interest and shifts towards the pursuit of individual interest, ultimately affecting the objectivity of the decisionmaking process for the issuance of judgments. This creates a common pattern within the legal system that ultimately permeates all other branches of public power. Furthermore, this situation is a tangible example of the development of what scholars have termed "processes of constitutionalization" where there is a "prevalence of jurisprudence, judicial precedent, and discretion" (García, 2013) as part of the objective of the process, which is nothing more than the constitutionalization of the entire legal framework. This is why the classical conception of the separation of powers, or the balance of powers has been questioned and reinterpreted. This new version involves both the judge and the precedent, making jurisprudence a formal source of law that significantly strengthens this process of judicial activism that has been gaining momentum over the past few decades.