LA Discrecionalidad administrativa una perspectiva desde el ordenamiento territorial en Colombia

Abstract

Within the regulatory framework that regulates everything related to territorial ordering, there are articles, which grant discretionary powers to the administration, e.g., the articles 13, 63, 103 of Law 388 of 1997. The foregoing has led to different interpretations on the part of the administrators; so that, through discretionary powers, greater use of the territory, the land and each of the wealth held by the different communities and cultures is achieved. In this sense, the following division is proposed as a thematic line to carry out this work: (I) Territorial ordering: Its application through decentralization and administrative autonomy. In this first section, it is intended to study the regulatory framework and jurisprudence, within our legal system, the decentralization and the administrative autonomy; which seeks to guarantee the different essential purposes of the State, to each of the citizens within the national territory. Then, (II) Administrative discretion: Concept and control. The theoretical bases that recognize administrative discretion are exposed, as well as the controls to it. It also seeks to expose how the regulation has been accomplished in our legal system and the interpretation made by the high courts. Finally, (III) The administrative discretion and its application within the territorial ordering: a power accepted and recognized because of the essential purposes achievement of the State. It is demonstrated, how the administrative discretion is presented within the normative framework regarding territorial ordering, likewise, how the Council of State, as the higher body of the contentious-administrative jurisdiction, has interpreted said powers in the face of specific cases. In conclusion, the normative framework study regarding the national territorial order is highly relevant, in order to identify the articles that establish a discretionary power at the head of the administration and how jurisprudence, through particular cases, has solved the decisions made by the different corporations, which apply the rule, in favor of the general interests and, consequently, the scope of the essential purposes of the State.