Control de constitucionalidad material de los actos legislativos

Abstract

The work is inscribed within the legal theory called guaranteeism, developed by Professor Luigi Ferrajoli, a theory that allows analyzing the legal figure proposed in the research problem, namely the constitutional substitution trial, based on two premises: 1. The normative production by the Legislator, however embodying popular representation, must be controlled by the Judiciary, both in its form and in its substance. (Ferrajoli, Main Constitutionalism and Guarantee Constitutionalism, 2011) 2. The judge, in his role as administrator of justice, while being bound by the rule of law to guarantee rights, has the possibility of interpreting and applying it with a certain margin of judicial inventiveness, “but if there is no legal support, even such inventiveness ... is impossible and there is no other solution than the denial of justice. ”(Ferrajoli, Law and Reason: Theory of Criminal Guarantee, 1995). It is intended that the assumptions of the guarantee expressed by Ferrajoli serve as a theoretical basis to justify the material control carried out by the Constitutional Court of the Reform Acts of the Constitution, in manifest overreach of the formal control competence attributed to it by the political charter. What are the antecedents, the foundations, the characteristics and the effects of the jurisprudential figure called “constitutional substitution trial”, applied in the constitutionality examination of the Legislative Acts issued by the Congress of the Republic? To answer this question, the historical and theoretical foundation that supports the existence of the constitutional substitution trial, applied in the constitutionality examination of the Legislative Acts issued by the Congress of the Republic, as well as its legal - political consequences, is analyzed.

This work has as its starting point the different conceptions of Popular Sovereignty as the original source of the Constitution, from ancient Greece, through the Protestant monarchs and continuing with JJ Rousseau, to then analyze the concepts of Constituent Power, base or fundamental pillar of the modern constitutional theory, but of course, while analyzing its conceptual - timeless dimension, for which Schmitt's decisionism and Kelsen's normativism are exposed, ideas that are collected by Heller to expose his interesting state theory. From the concept of Constituent Power, its two derivations, the Original Constituent Power and the Derived Constituent Power, are exposed, this second, made up of special representatives, delegated by the people and dedicated exclusively to the creation of the Constitution. To contextualize the origin of these concepts in time, two important historical events are exposed: the elaboration of the covenants, as the basis of the Constitution of the United States of America and the French Revolution, analyzing the thinking of Sieyès through his work What is the Third State? and, as a result of this process, after the approval of the Constitution, it is exposed how it is that each and every one of the powers of the State becomes considered Powers. Then, the Review Power is analyzed, focused on its Material and Formal Limits, as a tool for updating the Constitution, in order to accommodate it to political circumstances and accruals, but understood with the objective, clear and concise, of the search for a general purpose and not, as the accommodation of the Constitution to the needs of particular interests. These borders, Formal and Material Limits, that should be insurmountable and that are immersed within the Normative Text, are discussed and analyzed, but that unfortunately and, very skillfully, could be swiped for the interest of a few, in which case There is talk of Reform but of Substitution, inherent and optional exercise of the Constituent Power. On this point, the so-called constitutional substitution judgment figure is studied, understood as a hermeneutical exercise that is carried out in order to determine if the derivative constituent, when issuing a Reform Act, is limited to carrying out a constitutional reform or if, on the contrary, it exceeds its competence by making a constitutional substitution, so the concern arises as to whether the Constitutional Court carries out a formal and / or material control of the Reform Acts of the Constitution, however repeatedly sustains the jurisprudence of the Constitutional Court that its constitutional control function be limited to examining the procedural defects thereof (Judgment C-551 of 2003). This exercise, however, has turned out to be very complex in its elements, because, verbigracia, the high corporation, among other reasoning, has expressed that a vice of form produced by the contravention of an organic procedure law, which does not match a contravention of the constitutional postulates, can not be considered of sufficient entity to declare the unconstitutionality of a Legislative Act and, thus, begin to blur the limitation that the Primary Constituent imposed on the jurisdictional control of reform, because the existence of a procedural vice in the formation of the Act, but also the existence of a substantial opposition to the Political Charter so that it can be declared unconstitutional, clearly migrating to a substantive study of the accused norm. Exposed the tools and concepts for the realization of a Reformation, the Political Constitution of Colombia of 1991 is analyzed to establish the paths consigned in it for its modification: Legislative Acts, National Constituent Assembly and Referendum.