In exceptional cases, the Constitutional Court may suspend the application of a law if it finds that its content is openly or manifestly incompatible with the Political Charter. This in order to avoid irremediable effects or that lead to circumventing constitutionality control.
This was determined by the highest court when analyzing a lawsuit that requested the provisional suspension of the third and fourth paragraphs of the second numeral of letter C of article 2 of Law 2272 of 2022. This norm, as is known, is the one that contains the rules to advance the peace processes and was modified in the second half of last year by the majorities of the Petro government in Congress in order to lay the foundations for the so-called “total peace” policy.
Although the Court denied the suspension requested by the plaintiff, it did consider that the case is being processed as a national urgency. That is, it will be analyzed and failed preferentially.
The most important thing, however, is that the high court, after 31 years of validity of the Charter, changed its jurisprudence, since up to now, before regulations that were openly or manifestly incompatible with the Constitution, it applied instruments such as modulating its rulings, determining the effects over time of the same, define that the norm under analysis was unenforceable because it replaced the Constitution or, as determined in the lawsuit against Law 2272, gave the lawsuits priority to be treated preferentially in the order of the day
However, in a change in jurisprudence, the highest court explained yesterday that “as a general rule, the Court has indicated in the past that the suspension of regulations is not appropriate, as a provisional measure. However, in exceptional cases, faced with a rule that is openly or manifestly incompatible with the Constitution that may produce irremediable effects or that lead to evading constitutionality control, it is necessary for the Court to adopt measures, also exceptional, aimed at preventing the production of effects of the act under control. The foregoing is based on the need to guarantee the effectiveness of the principle of constitutional supremacy, with which, by virtue of a reinterpretation of the powers of the Court to fulfill its functions as guardian of the supremacy of the Constitution, the precedent is adjusted. .
Thus, in order to proceed with a suspension of the norm, the minimum requirements must be met, as established in the decision presented by magistrate Jorge Enrique Ibáñez Najar: “to decree a measure of protection and effectiveness, as its own attribution, the The Plenary Chamber of the Constitutional Court will take into account: (i) the exceptional nature of the measure; (ii) the existence of a provision incompatible with the Constitution that produces irremediable effects; (iii) the necessity, effectiveness, and proportionality of the measure; and (iv) the ineffectiveness of the other mechanisms for the protection and effectiveness of the constitutional order. The ruling will be adopted by the Plenary Chamber at the request of any magistrate, and in the order that decides it will establish its scope and duration.
According to several jurists, this change in jurisprudence of the Constitutional Court is a revolution in terms of enforceability control since it will allow, as a precautionary measure, as is applied in the contentious-administrative jurisdiction, a norm that is considered to be violating the Charter or its application may generate a serious and irremediable effect, it may be suspended while a substantive decision is made, which in many cases may take months.
In the case of the Petro government, this change in the operation of the Court can be complicated, since any claim against any of its key legal reforms could lead to the suspension of its application in the initial instances of the process in the high court, while a substantive ruling is produced.
For example, as is known, in the case of the health reform project, not a few sectors of Congress and jurists have warned that the norm is statutory in nature and, therefore, should be processed in the first committees of the Senate and Chamber and not, as the government and the directives of this second Corporation decided, in the seventh commissions, under the thesis that it is an initiative of an ordinary nature.
If the reform were to be approved by Congress, lawsuits have already been announced for a serious defect of unconstitutionality by those who consider that the reform is of a statutory nature by regulating, in an essential way, a fundamental right such as health. In this order of ideas, if the Court were to agree with the plaintiffs, from the outset it could suspend the application of the reform and would have to wait for a final and substantive ruling.
“Total peace under the magnifying glass”
On the other hand, the fact that the Constitutional Court has defined that it will give preferential processing to the lawsuit against the aforementioned articles of the basic law of total peace, could leave in suspense the policy that the Executive is carrying out with the guerrilla groups and high-impact multicrime gangs.
This is because what the Court will analyze preferentially and urgently is the legality of paragraphs 3 and 4 of the second numeral of literal C, of article 2 of Law 2272.
This part of the rule refers to the fact that “in Within the framework of the peace policy, the Government may have two types of processes:
(i) Negotiations with armed groups organized outside the law with which dialogues of a political nature are carried out, in which peace agreements are agreed.
An armed group organized outside the law is understood to be one that, under the direction of a responsible command, exercises such control over a part of the territory that it allows it to carry out sustained and concerted military operations.
(ii) Approaches and conversations with organized armed groups or organized armed structures of high-impact crime, in order to achieve their submission to justice and dismantling.
Organized armed structures of high-impact crime are understood to be those criminal organizations made up of a plural number of people, organized in a hierarchical structure and/or in a network, that are dedicated to the permanent or continuous execution of punishable conduct, among which Those typified in the Palermo Convention may be found, which are framed in criminal patterns that include the violent subjugation of the civilian population of the rural and urban territories in which they operate, and perform functions in one or more illicit economies.
Former members of illegal armed groups, demobilized through agreements entered into with the Colombian State, who contribute to its dismantling, will be understood as part of an organized armed structure of high-impact crime.
A High Level instance will be created for the study, characterization and qualification of the organized armed structures of high impact crime that may benefit from this law. Said instance must be coordinated by the Ministry of National Defense and will have the participation of the National Intelligence Directorate and the High Commissioner for Peace”.
As it is hardly obvious, if a part of this norm were to fall in the Court, the peace policy of the Petro government would be without legal ground.