La ilegalidad del acto administrativo derivada de la falsa motivación, frente a la desvinculación de los empleados en provisionalidad en cargos de carrera administrativa

Abstract

The validity of the administrative act depends on whether the reasons for which it is issued are real, pertinent and have sufficient merit to justify the decision that has been made. In other words, it corresponds to the factual and legal assumption that is legally necessary and valid for the corresponding issuance of the Legal act. Different writers have stated it as a material or objective requirement. In contrast, a false motivation like a vice of the illegality of the administrative act can be structured in the considerations of fact or law contained in the act. It is a mistake of fact or law, either because the facts adduced in the decision are non-existent or when they exist, they are incorrectly qualified from the legal point of view. In the first case, the mistake of fact is generated and, in the second one, it is considered a mistake of law.

Due to the lack of motivation in the involved acts, it implies the violation of the Due process, the principles of the Rule of Law, the democratic principles and the publicity of the exercise of the public function, such vice constitutes a cause for the nullity of the administrative acts that incur that situation. In this way, when a provisional career civil servant is dissociated through an unmotivated administrative act, the sanction provided by the legal system is the nullity of the act.

As a consequence, it can be affirmed that the motivation is the externalization of the reasoned and objectified justification that allows concluding in which the decisions become arbitrary, disproportionate and unfair. Likewise, the need to motivate the administrative acts is a burden and a duty that contemporary constitutional and administrative law imposes on public administration.

Finally, the identification of normative provisions in the Colombian legal system leads us to affirm that it is possible to demand sufficient motivation from the administrative authorities. In fact, the legislative elimination of summary or succinct motivation allows us to verify that the public Administration must justify and substantiate the content of its decisions when developing discretionary powers. That interpretation should be considered on future occasions for an advance in the scope and content that the highest tribunal of administrative litigation has made in this matter.